EXHIBIT 4.3
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AMERICAN EXPRESS ISSUANCE TRUST
RECEIVABLES PURCHASE AGREEMENT
between
AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC.
and
AMERICAN EXPRESS RECEIVABLES FINANCING CORPORATION V LLC
Dated as of May 19, 2005
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RECEIVABLES PURCHASE AGREEMENT, dated as of May 19, 2005, by
and between AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC., a New York
corporation (together with its permitted successors and assigns, "TRS"), and
AMERICAN EXPRESS RECEIVABLES FINANCING CORPORATION V LLC, a Delaware limited
liability company (together with its permitted successors and assigns, "RFC V").
W I T N E S S E T H:
WHEREAS, RFC V desires to purchase, from time to time, certain
Receivables (hereinafter defined) existing or arising in designated charge
accounts of TRS;
WHEREAS, RFC V desires to purchase, from time to time, certain
Receivables sold to TRS by American Express Credit Corporation ("CREDCO") and
existing and arising in designated charge accounts of TRS, American Express
Centurion Bank ("CENTURION") and American Express Bank, FSB ("FSB");
WHEREAS, RFC V desires to purchase, from time to time, certain
Receivables sold to TRS by Centurion and existing and arising in designated
charge accounts of Centurion;
WHEREAS, RFC V desires to purchase, from time to time, certain
Receivables sold to TRS by FSB and existing and arising in designated charge
accounts of FSB;
WHEREAS, TRS desires to sell and assign, from time to time,
certain Receivables to RFC V upon the terms and conditions hereinafter set
forth;
WHEREAS, it is contemplated that the Receivables purchased
hereunder will be transferred by RFC V to the Trust under the terms of the
Transfer and Servicing Agreement in connection with the issuance of notes
secured by the Receivables (each capitalized term as hereinafter defined); and
WHEREAS, TRS agrees that all representations, warranties,
covenants and agreements made by TRS herein with respect to the Accounts and the
Receivables shall also be for the benefit of the Trust, the Owner Trustee, the
Indenture Trustee and the Noteholders (each capitalized term as hereinafter
defined).
NOW, THEREFORE, it is hereby agreed by and between TRS and RFC
V as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. All capitalized terms used herein
or in any certificate, or document made or delivered pursuant hereto, and not
defined herein or therein, shall have the following meanings:
"Account" shall mean each (a) Initial Account, (b) each
Additional Account (but only from and after the Addition Date with respect
thereto) and (c) each Related Account. The term "Account" shall include any
account replacing an Account in connection with the transfer of ownership of
such Account from an Account Owner to any other Account Owner (provided that
such replacement account can be traced or identified by reference to, or by way
of, the code designation in the securitization field of such replacement
account, which code designation is contained in the computer or other records of
the applicable Account Owner or TRS used to generate the Account Schedule). The
term "Account" shall exclude (i) any Deleted Account and (ii) any Account, all
the Receivables of which are reassigned to TRS pursuant to Section 6.01 or
Section 6.02. The term "Account" shall include any Removed Account only prior to
the Removal Date with respect thereto.
"Account Agreement" shall mean, with respect to an Account,
the agreements between an Account Owner and an Obligor governing the terms and
conditions of such Account, as such agreements may be amended, modified or
otherwise changed from time to time and as distributed (including any amendments
and revisions thereto) to holders of such Account.
"Account Guidelines" shall mean, with respect to the Accounts
of each Account Owner, the established policies and procedures of such Account
Owner, (a) relating to the operation of its charge business which generally are
applicable to its portfolio of similar accounts, including the policies and
procedures for determining the creditworthiness of customers and the extension
of charge privileges to customers, and (b) relating to the maintenance of
accounts and collection of receivables, in each case as such policies and
procedures may be amended, modified or otherwise changed from time to time.
"Account Owner" shall mean, with respect to an Account, TRS,
Centurion, FSB or any other entity that, pursuant to the Account Agreement
related to such Account, is the issuer of the charge card related to, or the
owner of, such Account; provided that the Transferor shall notify each Note
Rating Agency promptly following the designation of any Account Owner other than
TRS, Centurion or FSB.
"Account Schedule" shall mean a computer file or microfiche
list containing a true and complete list of Accounts, identified by account
number, and setting forth, with respect to each Account, the aggregate amount
outstanding in such Account (a) on the Initial Cut-Off Date (for the Account
Schedule delivered on the Closing Date) and (b) on the applicable Addition
Cut-Off Date (for any Account Schedule relating to Additional Accounts).
"Addition Cut-Off Date" shall mean (a) with respect to each
New Account, the date on which such New Account is originated, and (b) with
respect to Aggregate Addition Accounts, the date specified as such in the
related Aggregate Addition Account Supplemental Conveyance.
"Addition Date" shall mean (a) with respect to New Accounts,
the date from and after which such New Accounts are to be included as Accounts
pursuant to Section 2.03(a) and the related New Account Supplemental Conveyance,
and (b) with respect to Aggregate Addition Accounts, the date from and after
which such Aggregate Addition Accounts are included as Accounts pursuant to
Subsection 2.02(a) and the related Aggregate Addition Account Supplemental
Conveyance.
"Additional Account" shall mean each New Account and each
Aggregate Addition Account.
"Affiliate" shall mean, with respect to any specified Person,
any other Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control" shall mean the
power to direct the management and policies of a Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" shall have meanings correlative to
the foregoing.
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"Aggregate Addition Account" shall mean each charge account
established pursuant to an Account Agreement between an Account Owner and any
Person, which account is designated pursuant to Section 2.02 to be included as
an Account and identified on an Account Schedule delivered pursuant to Sections
2.01 and 2.02.
"Aggregate Addition Account Supplemental Conveyance" shall
have the meaning specified in Subsection 2.02(b).
"Agreement" shall mean this Receivables Purchase Agreement, as
the same may be amended and supplemented from time to time.
"Business Day" shall mean any day other than (a) a Saturday or
Sunday or (b) any other day on which national banking associations, federal
savings banks or state banking institutions in New York, New York, or any other
State in which the principal executive offices of any Account Owner are located,
are authorized or obligated by law, executive order or governmental decree to be
closed.
"Closing Date" shall mean May 19, 2005.
"Collection Account" shall have the meaning specified in the
Indenture.
"Collections" shall mean all payments (excluding Recoveries)
received in respect of the Receivables, in the form of cash, checks, wire
transfers, electronic transfers, ATM transfers or any other form of payment.
"Conveyance" shall have the meaning specified in Subsection
2.01(a).
"Credco" shall mean American Express Credit Corporation, a
Delaware corporation, including any subsidiary thereof, and its permitted
successors and assigns.
"Date of Processing" shall mean, with respect to any
transaction or receipt of Collections, the Business Day after such transaction
or receipt is first output, in written form under TRS's customary and usual
practices, from TRS's computer file of Accounts and accounts comparable to the
Accounts (without regard to the effective date of recordation).
"Debtor Relief Laws" shall mean (a) the United States
Bankruptcy Code and (b) all other applicable liquidation, conservatorship,
bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization,
suspension of payments, readjustment of debt, marshalling of assets, assignment
for the benefit of creditors and similar debtor relief laws from time to time in
effect in any jurisdiction affecting the rights of creditors generally or the
rights of creditors of banks.
"Defaulted Receivable" shall mean a Principal Receivable which
is charged off as uncollectible in accordance with the Account Guidelines and
the Servicer's customary and usual servicing procedures for servicing
receivables comparable to the Receivables. A Principal Receivable shall become a
Defaulted Receivable on the Date of Processing on which such Principal
Receivable is recorded as charged-off on the Servicer's computer file of
Accounts.
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"Deleted Account" shall mean any Removed Account as to which
there are no Receivables arising therein (including Receivables that, though
charged off as uncollectible, may generate Recoveries) owned by RFC V.
"Discount Option Receivables" shall have the meaning specified
in the Transfer and Servicing Agreement.
"Early Amortization Event" shall have the meaning specified in
the Indenture.
"Eligible Account" shall mean each charge account established
pursuant to an Account Agreement between an Account Owner and any Person, which
meets the following requirements as of the applicable Selection Date:
(a) is a charge account in existence and maintained with an
Account Owner;
(b) is payable in United States dollars;
(c) has not been identified by such Account Owner or TRS in
its computer files as canceled due to a related Obligor's bankruptcy or
insolvency;
(d) has an Obligor who has provided, as his or her most recent
billing address, an address located in the United States or its territories or
possessions or a United States military address; provided, however, that, with
the consent of RFC V, as of such Selection Date, up to 3% of the aggregate
amount of Receivables may have related Obligors who have provided, as their
billing addresses, addresses located outside of such jurisdictions;
(e) if such account is a charge card account, has not been
identified as an account with respect to which a related card has been lost or
stolen;
(f) has not been sold or pledged by such Account Owner to any
other party;
(g) does not have any receivables that have been sold or
pledged by such Account Owner or TRS to any other Person other than Credco, TRS
or any Transferor; and
(h) does not have any receivables that have been written off
or that have been identified by such Account Owner or TRS as having been
incurred as a result of the fraudulent use of a related charge card.
Notwithstanding the above requirements, Eligible Accounts may include accounts,
the receivables of which have been written off, or which have been identified by
an Account Owner or the Servicer in its computer files as canceled due to a
related Obligor's bankruptcy or insolvency, in each case as of the related
Selection Date; provided, however, that (1) the balance of all receivables
included in such accounts is reflected on the books and records of the related
Account Owner (and is treated for purposes of this Agreement) as "zero" and (2)
borrowing and charging privileges with respect to all such accounts have been
canceled in accordance with the Account Guidelines applicable thereto.
"Eligible Receivable" shall mean each Receivable:
(a) which has arisen in an Eligible Account;
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(b) which was created in compliance in all material respects
with all Requirements of Law applicable to the related Account Owner and TRS and
pursuant to an Account Agreement that complies in all material respects with all
Requirements of Law applicable to the related Account Owner, in either case, the
failure to comply with which would have a material adverse effect on RFC V;
(c) with respect to which all material consents, licenses,
approvals or authorizations of, or registrations or declarations with, any
Governmental Authority required to be obtained, effected or given in connection
with the creation of such Receivable or the execution, delivery and performance
by the related Account Owner of the Account Agreement pursuant to which such
Receivable was created, have been duly obtained, effected or given and are in
full force and effect;
(d) as to which, immediately prior to the sale of such
Receivable to RFC V, TRS has good and marketable title thereto, free and clear
of all Liens (other than any Lien for municipal or other local taxes of the
related Account Owner or TRS if such taxes are not then due and payable or if
the related Account Owner or TRS is then contesting the validity thereof in good
faith by appropriate proceedings and has set aside on its books and records
adequate reserves with respect thereto);
(e) which has been the subject of a valid sale and assignment
from TRS to RFC V of all TRS's right, title and interest therein (including any
proceeds thereof);
(f) which is the legal, valid and binding payment obligation
of an Obligor thereon, enforceable against such Obligor in accordance with its
terms, except as such enforceability may be limited by applicable Debtor Relief
Laws and except as such enforceability may be limited by general principles of
equity (whether considered in a suit at law or in equity);
(g) which, at the time of the sale of such Receivable to RFC
V, has not been waived or modified except as permitted in accordance with the
Account Guidelines and which waiver or modification is reflected in the related
Account Owner's and TRS's computer file of Accounts;
(h) which, at the time of the sale of such Receivable to RFC
V, is not subject to any right of rescission, setoff, counterclaim or any other
defense (including defenses arising out of violations of usury laws) of an
Obligor, other than defenses arising out of applicable Debtor Relief Laws;
(i) as to which, at the time of the sale of such Receivable to
RFC V, each of the related Account Owner and TRS has satisfied all its
obligations required to be satisfied by such time;
(j) as to which, at the time of the sale of such Receivable to
RFC V, each of the related Account Owner and TRS has not taken any action which
would impair, or omitted to take any action the omission of which would impair,
the rights of RFC V therein; and
(k) which constitutes either an "account" or a "general
intangible" under and as defined in Article 9 of the UCC as then in effect in
any jurisdiction where the filing of a financing statement is then required to
perfect RFC V's interest in such Receivable and the proceeds thereof.
"Event of Default" shall have the meaning specified in the
Indenture.
"Excess Funding Account" shall have the meaning specified in
the Indenture.
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"Finance Charge Receivables" shall mean the aggregate amount
of Discount Option Receivables.
"First Note Transfer Date" shall have the meaning specified in
the Transfer and Servicing Agreement.
"Governmental Authority" shall mean the United States of
America, any state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Indenture" shall mean the Indenture, dated as of May 19,
2005, between the Trust, as issuer, and the Indenture Trustee, as the same may
be amended, supplemented or otherwise modified from time to time.
"Indenture Trustee" shall mean The Bank of New York, in its
capacity as indenture trustee under the Indenture, its successors in interest
and any successor indenture trustee under the Indenture.
"Initial Account" shall mean each charge account established
pursuant to an Account Agreement between an Account Owner and any Person, which
account is identified in the Account Schedule delivered to RFC V by TRS on the
Closing Date.
"Initial Cut-Off Date" shall mean the close of business on
April 24, 2005.
"Insolvency Event" shall have the meaning specified in Section
8.02.
"Issuer Rate Fees" shall mean all issuer rate fees payable to
an Account Owner in connection with cardholder charges for goods or services
with respect to the Receivables.
"Lien" shall mean any security interest, mortgage, deed of
trust, pledge, hypothecation, assignment, deposit arrangement, equity interest,
encumbrance, lien (statutory or other), preference, participation interest,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever, including any conditional sale or other title retention
agreement, or any financing lease having substantially the same economic effect
as any of the foregoing; provided, however, that the security interest created
in favor of the Indenture Trustee shall not be deemed to constitute a Lien.
"Monthly Period" shall mean, with respect to each Payment
Date, the period (a) from and including the second day following the last day of
the seventh billing cycle applicable to the Accounts ending during the second
preceding calendar month and (b) to and including the day following the last day
of the seventh billing cycle applicable to the Accounts ending in the calendar
month immediately preceding the calendar month in which such Payment Date shall
occur.
"New Account" shall mean each charge account established
pursuant to an Account Agreement between an Account Owner and any Person, which
account is designated pursuant to Subsection 2.03(a) to be included as an
Account and identified on an Account Schedule delivered pursuant to Sections
2.01 and 2.03.
"New Account Delivery Date" shall mean, with respect to any
New Account, the fifteenth calendar day of the month (or, if such 15th calendar
day is not a Business Day, the next succeeding Business Day) following the
Monthly Period in which the Addition Date for such New Account occurs.
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"New Account Supplemental Conveyance" shall have the meaning
specified in Subsection 2.03(b).
"Note Rating Agency" shall mean the nationally recognized
statistical rating agency or agencies, if any, selected by RFC V and any other
Transferor to rate any securities issued by the Trust.
"Noteholder" shall have the meaning specified in the
Indenture.
"Obligor" shall mean, with respect to any Account, the Person
or Persons obligated to make payments with respect to such Account, including
any guarantor thereof, but excluding any merchant.
"Officer's Certificate" shall mean a certificate delivered to
RFC V signed by any Vice President or more senior officer of TRS and which
states that the certifications set forth in such certificate are based upon the
results of a due inquiry into the matters in question conducted by or under the
supervision of the signing officer and that the facts stated in such
certifications are true and correct to the best of the signing officer's
knowledge.
"Owner Trustee" shall mean Wilmington Trust Company, not in
its individual capacity, but solely as owner trustee under the Trust Agreement,
its successors in interest and any successor owner trustee under the Trust
Agreement.
"Payment Date" shall have the meaning specified in the
Indenture.
"Person" shall mean any person or entity, including any
individual, corporation, limited liability company, partnership (general or
limited), joint venture, association, joint-stock company, trust, unincorporated
organization, Governmental Authority, or other entity of any nature.
"Principal Receivables" shall mean all Receivables other than
Finance Charge Receivables.
"Proceeding" shall mean any suit in equity, action at law or
other judicial or administrative proceeding.
"Purchase Price" shall have the meaning specified in
Subsection 3.01(a).
"Purchase Price Adjustment" shall have the meaning specified
in Section 3.02.
"Purchase Price Payment Date" shall have the meaning specified
in Subsection 3.01(a).
"Purchased Assets" shall have the meaning specified in
Subsection 2.01(a).
"Receivables" shall mean all amounts shown on the records of
the related Account Owner and TRS as amounts payable by an Obligor on any
Account from time to time, including amounts payable for Principal Receivables
and Finance Charge Receivables.
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"Receivables Purchase Agreements" shall mean (i) the
receivables purchase agreement between TRS and Centurion, dated as of May 19,
2005, and (ii) the receivables purchase agreement between TRS and FSB, dated as
of May 19, 2005, in each case as the same may be amended, supplemented or
otherwise modified from time to time, and includes any receivables purchase
agreement, substantially in the form of such agreement, entered into between TRS
and another Account Owner in the future, if any.
"Recoveries" shall mean all amounts received with respect to
Receivables which have previously been charged-off.
"Related Account" shall mean an Account with respect to which
a new account number has been issued by the related Account Owner (i) in
compliance with the Account Guidelines and the related Account Agreement, (ii)
to the same Obligor or Obligors of such Account, and (iii) (a) as a result of
the charge card with respect to such Account being lost or stolen; (b) as a
result of the related Obligor requesting a change in his or her billing cycle;
(c) as a result of the related Obligor requesting the discontinuance of
responsibility with respect to such Account; (d) as a result of the related
Obligor requesting a product change; or (e) for any other reasons permitted by
the Account Guidelines; provided that such Account can be traced or identified
by reference to or by way of the code designation in the securitization field of
such Account, which code designation is contained in the computer or other
records of the applicable Account Owner or TRS used to generate the Account
Schedule.
"Removal Limit" means, as of any date of determination, the
aggregate amount of Receivables in Removed Accounts that may be reassigned to
TRS during any calendar month, equal to 5% of the aggregate amount of
Receivables in the Trust as of such date.
"Removed Account" shall mean any Account as to which TRS has
received notice from the Servicer that such Account is a "Removed Account" as
defined in the Transfer and Servicing Agreement.
"Removal Date" shall have the meaning specified in Subsection
2.04(a)(i).
"Requirements of Law" shall mean any law, treaty, rule or
regulation, or determination of an arbitrator or Governmental Authority, whether
federal, state or local (including, without limitation, usury laws, the Federal
Truth in Lending Act and Regulation B and Regulation Z of the Board of Governors
of the Federal Reserve System), and, when used with respect to any Person, the
certificate of incorporation and by-laws or other organizational or governing
documents of such Person.
"RFC V" shall have the meaning specified in the initial
paragraph of this Agreement.
"Selection Date" shall mean (i) with respect to each Initial
Account with the code designation "AA," the close of business on the cycle
billing date for such Account occurring in the Monthly Period beginning October
2, 2004 and ending at the close of business on October 29, 2004 and (b) with
respect to each Initial Account with the code designation "5," the close of
business on the cycle billing date for such Account occurring in the Monthly
Period beginning March 18, 2004 and ending at the close of business on April 14,
2004, (ii) with respect to each Aggregate Addition Account, the date specified
as such in the related Aggregate Addition Account Supplemental Conveyance and
(iii) with respect to each New Account, the date on which such New Account is
originated.
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"Servicer" shall mean the entity acting as Servicer under the
Transfer and Servicing Agreement.
"Small Balances" shall have the meaning established in
accordance with the Account Guidelines.
"Stop Date" shall have the meaning specified in Subsection
2.04(a).
"Supplemental Conveyance" shall mean an Aggregate Addition
Account Supplemental Conveyance or a New Account Supplemental Conveyance.
"Transfer and Servicing Agreement" shall mean the Transfer and
Servicing Agreement, dated as of May 19, 2005, among RFC V, as Transferor, TRS,
as Servicer and Administrator, the Trust, as Issuer, and the Indenture Trustee,
as amended, supplemented or restated from time to time.
"Transfer Restriction Event" shall mean that TRS is unable for
any reason to transfer Receivables to RFC V in accordance with the provisions of
this Agreement, including by reason of the application of the provisions in
Section 8.02 or any order of any Governmental Authority.
"Transferor" shall mean the entity or entities acting as a
Transferor under the Transfer and Servicing Agreement.
"TRS" shall have the meaning specified in the initial
paragraph of this Agreement.
"Trust" shall mean the American Express Issuance Trust,
created under the Trust Agreement.
"Trust Agreement" shall mean the Trust Agreement relating to
the Trust, dated as of May 18, 2005, between the Transferor and the Owner
Trustee, as the same may be amended, supplemented or otherwise modified from
time to time.
"UCC" shall mean the Uniform Commercial Code as in effect in
the applicable jurisdiction.
Section 1.02. Other Definitional Provisions.
The words "HEREOF," "HEREIN," "HEREUNDER" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; and Section, Subsection,
Schedule and Exhibit references contained in this Agreement are references to
Sections, Subsections, Schedules and Exhibits in or to this Agreement unless
otherwise specified.
[END OF ARTICLE I]
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ARTICLE II
PURCHASE AND CONVEYANCE OF RECEIVABLES
Section 2.01. Purchase.
(a) In consideration of the payment of the Purchase Price as
provided herein, TRS does hereby sell, transfer, assign, set over and otherwise
convey to RFC V (collectively, the "CONVEYANCE"), without recourse except as
provided herein, all of its right, title and interest, whether now owned or
hereafter acquired, in, to and under the Receivables existing at the Initial
Cut-Off Date, in the case of Receivables arising in the Initial Accounts
(including Related Accounts with respect to such Initial Accounts), at the
applicable Addition Cut-Off Date, in the case of Receivables arising in the
Additional Accounts (including Related Accounts with respect to such Additional
Accounts), and in each case thereafter created from time to time in the
Accounts, all Recoveries allocable to such Receivables, all monies due or to
become due and all amounts received or receivable with respect thereto, all
Collections with respect thereto, and all proceeds (including "proceeds" as
defined in the UCC) thereof, but excluding any Issuer Rate Fees allocable to
such Receivables (collectively, the "PURCHASED ASSETS"). TRS does hereby further
transfer, assign, set over and otherwise convey to RFC V all of its rights,
remedies, powers, privileges and claims under or with respect to any related
Receivables Purchase Agreement (whether arising pursuant to the terms of such
Receivables Purchase Agreement or otherwise).
The Receivables existing in the Initial Accounts at the
Initial Cut-Off Date and thereafter arising in the Initial Accounts on or prior
to the Closing Date, and the related Purchased Assets, shall be sold by TRS and
purchased by RFC V on the Closing Date. Receivables arising after the Closing
Date in the Initial Accounts and the related Purchased Assets shall be sold by
TRS and purchased by RFC V on the date such Receivables arise. The Receivables
existing in Additional Accounts at the related Addition Cut-Off Date and
thereafter arising in such Additional Accounts on or prior to the related
Addition Date, and the related Purchased Assets, shall be sold by TRS and
purchased by RFC V on the related Addition Date. Receivables arising after such
Addition Date in such Additional Accounts and the related Purchased Assets shall
be sold by TRS and purchased by RFC V on the date such Receivables arise.
(b) TRS shall (i) record and file, at its own expense, any
financing statements (and amendments with respect to such financing statements
when applicable) with respect to the Purchased Assets meeting the requirements
of applicable state law in such manner and in such jurisdictions as are
necessary to perfect, and maintain perfection of, the Conveyance of such
Purchased Assets from TRS to RFC V, (ii) cause such financing statements and
amendments to name TRS, as seller, and RFC V, as purchaser, of the Purchased
Assets and (iii) deliver a file-stamped copy of such financing statements or
amendments or other evidence of such filings to RFC V as soon as is practicable
after filing.
(c) TRS shall, at its own expense, (i) on or prior to (x) the
Closing Date, in the case of Initial Accounts, and (y) the applicable Addition
Date, in the case of Additional Accounts, indicate in its books and records
(including its computer files) that Receivables created in connection with such
Accounts and the related Purchased Assets have been sold to RFC V in accordance
with this Agreement and have been conveyed by RFC V to the Trust pursuant to the
Transfer and Servicing Agreement, and (ii) on or prior to (x) the Closing Date,
in the case of Initial Accounts, and (y) the applicable Addition Date, in the
case of Additional Accounts, deliver to RFC V an Account Schedule (provided,
however, that such Account Schedule shall be provided in respect of New Accounts
on the New Account Delivery Date) containing a true and complete list of all
such Accounts. TRS shall not alter the indication referenced in clause (i) of
this paragraph with respect to any Account during the term of this Agreement
unless and until such Account is no longer an Account or TRS has taken such
action as is necessary or advisable to cause the interest of RFC V in the
Purchased Assets to continue to be perfected and of first priority. The Account
Schedules, as supplemented and amended, collectively shall be marked as SCHEDULE
1 to this Agreement, shall be incorporated into and made a part of this
Agreement and shall be updated by TRS on each Addition Date (or, with respect to
New Accounts, on the New Account Delivery Date) to include any new Additional
Accounts, and shall be updated by TRS not later than semi-annually to include
any new Related Accounts.
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(d) The parties hereto intend that the conveyance of TRS's
right, title and interest in and to the Purchased Assets shall constitute an
absolute sale, conveying good title free and clear of any liens, claims,
encumbrances or rights of others, from TRS to RFC V. It is the intention of the
parties hereto that the arrangements with respect to the Purchased Assets shall
constitute a purchase and sale of such Purchased Assets and not a loan,
including for accounting purposes. In the event, however, that it were to be
determined that the transactions evidenced hereby constitute a loan and not a
purchase and sale, it is the intention of the parties hereto that this Agreement
shall constitute a security agreement under applicable law, and that TRS shall
be deemed to have granted, and TRS does hereby grant, to RFC V a first priority
perfected security interest in all of TRS's right, title and interest, whether
now owned or hereafter acquired, in, to and under the Purchased Assets to secure
the obligations of TRS hereunder.
(e) To the extent that TRS retains any interest in the
Purchased Assets, TRS hereby grants to the Trust and the Indenture Trustee a
security interest in all of TRS's right, title and interest, whether now owned
or hereafter acquired, in, to and under the Purchased Assets, to secure the
performance of all of the obligations of TRS hereunder. With respect to such
security interest and such collateral, the Trust and the Indenture Trustee shall
have all of the rights that it has under the Transfer and Servicing Agreement.
Each of the Trust and the Indenture Trustee shall also have all of the rights of
a secured creditor under the UCC.
Section 2.02. Addition of Aggregate Addition Accounts.
(a) If (i) RFC V is required, pursuant to Subsection 2.13(a)
of the Transfer and Servicing Agreement, to designate additional accounts to the
Trust, or (ii) RFC V elects, pursuant to Subsection 2.13(b) of the Transfer and
Servicing Agreement, to designate additional accounts to the Trust, then in
either case RFC V shall give written notice thereof to TRS; provided, however,
that such notice shall be provided on or before the eighth (8th) Business Day
immediately preceding the related addition date. Upon receipt of such notice and
on or prior to such addition date, TRS shall designate sufficient Eligible
Accounts as Aggregate Addition Accounts and shall sell to RFC V the Purchased
Assets related to such Aggregate Addition Accounts. In addition, at its option
and with the consent of RFC V, TRS may designate Eligible Accounts as Aggregate
Addition Accounts and sell to RFC V the Purchased Assets related to such
Aggregate Addition Accounts.
(b) On the Addition Date with respect to any designation of
Aggregate Addition Accounts, such Aggregate Addition Accounts shall become
Accounts, and RFC V shall purchase TRS's right, title and interest in, to and
under the Receivables in such Aggregate Addition Accounts and the related
Purchased Assets as provided in Section 2.01, subject to the satisfaction of the
following conditions on such Addition Date:
11
(i) as of the applicable Selection Date, each Aggregate
Addition Account shall be an Eligible Account;
(ii) TRS shall have delivered to RFC V copies of UCC financing
statements covering such Aggregate Addition Accounts, if necessary to
perfect RFC V's interest in the Receivables arising therein and the
related Purchased Assets;
(iii) to the extent daily collections are required by Section
3.1 of the Transfer and Servicing Agreement, TRS shall have deposited
into the Collection Account all Collections with respect to such
Aggregate Addition Accounts since the applicable Addition Cut-Off Date;
(iv) as of each of the Addition Cut-Off Date and the Addition
Date, no Insolvency Event with respect to TRS shall have occurred nor
shall the sale of the Receivables arising in the Aggregate Addition
Accounts and the related Purchased Assets to RFC V have been made in
contemplation of the occurrence thereof;
(v) such addition will not, in the reasonable belief of TRS,
have a material adverse effect on RFC V;
(vi) TRS shall have delivered to RFC V an Officer's
Certificate of TRS, dated the Addition Date, confirming, to the extent
applicable and in TRS's reasonable belief, the items set forth in
clauses (i) through (v) above;
(vii) TRS shall have indicated in its computer files that
Receivables created in connection with such Aggregate Addition Accounts
and the related Purchased Assets have been sold to RFC V and shall have
delivered to RFC V the Account Schedule with respect to such Aggregate
Addition Accounts in accordance with Subsection 2.01(c); and
(viii) TRS and RFC V shall have entered into a duly executed,
written assignment, substantially in the form of EXHIBIT A (an
"AGGREGATE ADDITION ACCOUNT SUPPLEMENTAL CONVEYANCE").
Section 2.03. Addition of New Accounts.
(a) Upon the mutual agreement of TRS and RFC V, subject to
compliance by TRS with Subsection 2.03(b), TRS may designate newly originated
Eligible Accounts to be included as New Accounts and sell to RFC V the Purchased
Assets related to such New Accounts. TRS shall cooperate with RFC V to enable
RFC V to comply with the requirements of Subsections 2.13(d) and (e) of the
Transfer and Servicing Agreement and shall cooperate with RFC V to enable RFC V
to perform with respect to the Receivables in such New Accounts all actions
specified in Subsections 2.13(d) and (e) of the Transfer and Servicing
Agreement.
(b) On the Addition Date with respect to any New Accounts, RFC
V shall purchase TRS's right, title and interest in, to and under the
Receivables in such New Accounts (and such New Accounts shall be deemed to be
Accounts for purposes of this Agreement) upon satisfaction of the following
conditions:
(i) as of the applicable Selection Date, each New Account
shall be an Eligible Account;
12
(ii) on such Addition Date, TRS shall have delivered to RFC V
copies of UCC financing statements covering such New Accounts, if
necessary to perfect RFC V's interest in the Receivables arising
therein and the related Purchased Assets;
(iii) on such Addition Date, to the extent daily collections
are required by Section 3.1 of the Transfer and Servicing Agreement,
TRS shall have deposited into the Collection Account all Collections
with respect to such New Accounts since the applicable Addition Cut-Off
Date;
(iv) as of each of the Addition Cut-Off Date and such Addition
Date, no Insolvency Event with respect to TRS shall have occurred nor
shall the sale of the Receivables arising in the New Accounts and the
related Purchased Assets to RFC V have been made in contemplation of
the occurrence thereof;
(v) such addition will not, in the reasonable belief of TRS,
have a material adverse effect on RFC V;
(vi) on such Addition Date, TRS shall have delivered to RFC V
an Officer's Certificate of TRS, dated such Addition Date, confirming,
to the extent applicable and in TRS's reasonable belief, the items set
forth in clauses (i) through (v) above;
(vii) on such Addition Date, TRS shall have indicated in its
computer files that Receivables created in connection with such New
Accounts and the related Purchased Assets have been sold to RFC V; and
(viii) on such Addition Date, TRS and RFC V shall have entered
into a duly executed, written assignment, substantially in the form of
EXHIBIT B (a "NEW ACCOUNT SUPPLEMENTAL CONVEYANCE").
(c) On the related New Account Delivery Date, TRS shall
deliver to RFC V the Account Schedule with respect to such New Accounts.
Section 2.04. Removal and Deletion of Accounts.
(a) If RFC V elects, pursuant to Subsection 2.14(a) of the
Transfer and Servicing Agreement, to remove accounts from the Trust (the
"REMOVED ACCOUNTS"), RFC V shall give written notice thereof to TRS.
Notwithstanding anything in this Agreement to the contrary, if an Account
becomes a Removed Account, then TRS shall stop selling to RFC V Receivables
arising in such Removed Account effective on the Business Day (the "STOP DATE")
after the date such Account becomes a Removed Account. Notwithstanding the
cessation of the sale to RFC V of additional Receivables arising in such Removed
Account, Receivables sold to RFC V prior to the Stop Date and Collections in
respect of such Receivables shall continue to be property of RFC V available for
transfer by RFC V to the Trust pursuant to the Transfer and Servicing Agreement;
provided, however, that, to the extent TRS has accepted reassignment of the
Receivables in such Removed Account as described in paragraph (b) below,
Collections in respect of such Receivables which are received after the Removal
Date (as defined below) shall not be considered property of RFC V available for
transfer by RFC V to the Trust. To the extent that it is not clear to TRS
whether Collections relate to a Receivable that was sold to RFC V or to a
receivable that TRS did not sell to RFC V, TRS shall allocate payments on each
such Removed Account with respect to the principal balance of such Removed
Account first to the oldest principal balance of such Removed Account.
13
(b) Upon receipt of the notice described in paragraph (a)
above and on or prior to the date for removal of the Removed Accounts (the
"REMOVAL DATE"), RFC V may, at its option and with the consent of TRS, reassign
its right, title and interest in, to and under the Receivables in the Removed
Accounts (and such Accounts shall no longer be deemed to be Accounts for
purposes of this Agreement) upon satisfaction of the following conditions:
(i) on or before the tenth Business Day immediately preceding
the Removal Date, RFC V shall have given TRS notice (unless such notice
requirement is waived) that the Receivables from such Removed Accounts
are to be reassigned to TRS on the Removal Date;
(ii) on or prior to the Removal Date, RFC V shall amend the
Account Schedule by delivering or causing to be delivered to TRS a
computer file or microfiche list containing a true and complete list of
the Removed Accounts;
(iii) RFC V shall have represented and warranted as of the
Removal Date that the list of Removed Accounts delivered pursuant to
paragraph (ii) above, as of the Removal Date, is true and complete in
all material respects;
(iv) such removal will not, in the reasonable belief of RFC V,
have a material adverse effect on TRS;
(v) such removal shall not exceed the Removal Limit;
(vi) the purchase price for the Receivables in the Removed
Accounts as of the Removal Date shall be the then-current fair market
value of such Receivables, as mutually agreed upon by TRS and RFC V;
(vii) such removal is not effected due to the credit or
default risk of any Obligor or the Receivables;
(viii) RFC V shall have delivered an Officer's Certificate of
RFC V, dated the Removal Date, confirming, to the extent applicable and
in RFC V's reasonable belief, the items set forth in clauses (iv)
through (vii) above; and
(ix) RFC V and TRS shall have entered into a duly executed,
written reassignment, substantially in the form of EXHIBIT C (a
"REASSIGNMENT").
(c) On and after the Stop Date for a Removed Account, TRS may
▇▇▇▇ its books and records to indicate that such Account is a Removed Account.
However, TRS shall not alter the indication referenced in clause (i) of
Subsection 2.01(c) with respect to such Removed Account unless and until (i)
TRS, at its option, accepts reassignment of the right, title and interest of RFC
V in, to and under the Receivables in such Removed Account, (ii) such Account
becomes a Deleted Account or (iii) TRS has taken such action as is necessary or
advisable to cause the interest of RFC V in the Purchased Assets to continue to
be perfected and of first priority.
(d) Once (i) TRS, at its option, accepts reassignment of the
right, title and interest of RFC V in, to and under the Receivables in a Removed
Account or (ii) a Removed Account becomes a Deleted Account, TRS may delete such
Account from SCHEDULE 1 hereto and, upon such deletion, shall indicate in its
computer files that such Removed Account or Deleted Account, as applicable, is
no longer an Account.
[END OF ARTICLE II]
14
ARTICLE III
CONSIDERATION AND PAYMENT
Section 3.01. Purchase Price.
(a) The "PURCHASE PRICE" for the Receivables in the Initial
Accounts existing at the Initial Cut-Off Date, and the related Purchased Assets,
that are conveyed to RFC V under this Agreement shall be payable on the Closing
Date, in an amount equal to 100% of the aggregate balance of the Receivables so
conveyed, adjusted to reflect such factors, if any, as TRS and RFC V mutually
agree will result in a Purchase Price determined to be the fair market value of
such Receivables and the related Purchased Assets. This computation of initial
purchase price shall assume no reinvestment in new Receivables. The Purchase
Price for the Receivables (including Receivables in Additional Accounts) and the
related Purchased Assets conveyed to RFC V under this Agreement which come into
existence after the Initial Cut-Off Date (i) shall be payable on a date (the
"PURCHASE PRICE PAYMENT DATE") mutually agreed to by TRS and RFC V, but no later
than the 15th calendar day (or, if such day is not a Business Day, the next
following Business Day) following the calendar month in which such Receivables
and the related Purchased Assets are conveyed by TRS to RFC V and (ii) shall be
an amount equal to 100% of the aggregate balance of the Receivables so conveyed,
adjusted to reflect such factors, if any, as TRS and RFC V mutually agree will
result in a Purchase Price determined to be the fair market value of such
Receivables and the related Purchased Assets.
(b) Notwithstanding any other provision of this Agreement, TRS
shall not be obligated to continue to sell Receivables or other Purchased Assets
to RFC V to the extent that TRS is not paid the Purchase Price therefor as
provided herein.
Section 3.02. Adjustments to Purchase Price. The Purchase
Price shall be reduced on the Purchase Price Payment Date (a "PURCHASE PRICE
ADJUSTMENT") with respect to any Receivable previously conveyed to RFC V by TRS
which is reduced by the related Account Owner, TRS or the Servicer because of a
rebate, refund, unauthorized charge or billing error to an Obligor, because such
Receivable was created in respect of merchandise which was refused or returned
by an Obligor, or because the Servicer or the applicable Account Owner processes
as a credit adjustment any uncollectible Small Balances, or if the Servicer
otherwise adjusts downward the amount of any Receivable without receiving
Collections therefor or without charging off such amount as uncollectible. The
amount of such reduction shall equal the reduction in the balance of such
Receivable resulting from the occurrence of such event. In the event that a
reduction pursuant to this Section 3.02 causes the Purchase Price to be a
negative number, TRS agrees that, on the Purchase Price Payment Date, TRS shall
pay or cause to be paid to RFC V an amount equal to the amount by which the
Purchase Price Adjustment exceeds the unadjusted Purchase Price; provided,
however, that if the reduction relating to such Purchase Price Adjustment also
gives rise to an obligation on the part of RFC V as Transferor to make a deposit
in the Excess Funding Account pursuant to Section 3.10 of the Transfer and
Servicing Agreement, then TRS and RFC V hereby agree that the date that RFC V is
required to make such deposit pursuant to Section 3.10 of the Transfer and
Servicing Agreement shall be a Purchase Price Payment Date.
Section 3.03. Use of Name, Logo and Marks. TRS does hereby
grant to RFC V a non-exclusive license to use the name "American Express Travel
Related Services Company, Inc." and all related identifying trade or service
marks, signs, symbols, logos, designs, servicing software, customer lists and
other intangibles in connection with the servicing of the Receivables purchased
hereunder. The license granted shall be co-extensive with the term of the
Agreement.
[END OF ARTICLE III]
15
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of TRS Relating
to TRS.
(a) Representations and Warranties. TRS hereby represents and
warrants to, and agrees with, RFC V as of the Closing Date and on each Addition
Date, that:
(i) Organization and Good Standing. TRS is a corporation
validly existing under the laws of the State of New York, and has, in
all material respects, full power and authority to own its properties
and conduct its business as presently owned or conducted, and to
execute, deliver and perform its obligations under this Agreement.
(ii) Due Qualification. TRS is duly qualified to do business
and is in good standing as a foreign corporation or other entity and
has obtained all necessary licenses and approvals, in each jurisdiction
in which failure to so qualify or to obtain such licenses and approvals
would have a material adverse effect on this Agreement or the
transactions contemplated hereby or on the ability of TRS to perform
its obligations under this Agreement.
(iii) Due Authorization. The execution and delivery by TRS of
this Agreement and any other document or instrument delivered by TRS
pursuant hereto, including any Supplemental Conveyance, to which TRS is
a party and the consummation by TRS of the transactions provided for in
this Agreement and any such Supplemental Conveyance, have been duly
authorized by TRS by all necessary action on the part of TRS.
(iv) No Conflict or Violation. The execution and delivery by
TRS of this Agreement, the performance by TRS of the transactions
contemplated by this Agreement and the fulfillment by TRS of the terms
of this Agreement applicable to TRS, will not conflict with or violate
any Requirements of Law applicable to TRS or conflict with, result in
any breach of any of the material terms and provisions of, or
constitute (with or without notice or lapse of time or both) a material
default under, any indenture, contract, agreement, mortgage, deed of
trust or other instrument to which TRS is a party or by which it or its
properties are bound.
(v) No Proceedings. There are no Proceedings or investigations
pending or, to the best knowledge of TRS, threatened, against TRS
before any Governmental Authority (i) asserting the invalidity of this
Agreement, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement, (iii) seeking any
determination or ruling that, in the reasonable judgment of TRS, would
materially and adversely affect the performance by TRS of its
obligations under this Agreement or (iv) seeking any determination or
ruling that, in the reasonable judgment of TRS, would materially and
adversely affect the validity or enforceability of this Agreement.
(vi) All Consents. All authorizations, consents, orders or
approvals of or registrations or declarations with any Governmental
Authority required to be obtained, effected or given by TRS in
connection with the execution and delivery by TRS of this Agreement and
the performance by TRS of the transactions contemplated by this
Agreement have been duly obtained, effected or given and are in full
force and effect.
16
(b) Notice of Breach. The representations and warranties set
forth in this Section 4.01 shall survive the sale of the Purchased Assets to RFC
V. Upon discovery by TRS or RFC V of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the other party, the Owner Trustee and the Indenture
Trustee following such discovery.
Section 4.02. Representations and Warranties of TRS Relating
to the Agreement and the Receivables.
(a) Representations and Warranties. TRS hereby represents and
warrants to RFC V as of the Closing Date with respect to the Initial Accounts
(and the Receivables arising therein) and as of the related Addition Date with
respect to Additional Accounts (and the Receivables arising therein), that:
(i) each of this Agreement and, in the case of Additional
Accounts, the related Supplemental Conveyance constitutes a legal,
valid and binding obligation of TRS enforceable against TRS in
accordance with its terms, except as such enforceability may be limited
by applicable Debtor Relief Laws or general principles of equity;
(ii) (a) as of the Initial Cut-Off Date with respect to the
Initial Accounts (and the Receivables arising thereunder), SCHEDULE 1
to this Agreement, as supplemented to such date, is an accurate and
complete listing in all material respects of all the Accounts as of
such applicable date, and the information contained therein with
respect to the identity of such Accounts and the Receivables existing
thereunder is true and correct in all material respects as of such
applicable date and (b) as of the related Addition Cut-Off Date with
respect to Additional Accounts (and the Receivables arising
thereunder), SCHEDULE 1 to this Agreement, as supplemented to such
date, is an accurate and complete listing in all material respects of
all the Accounts as of such applicable date, and the information
contained therein with respect to the identity of such Accounts and the
Receivables existing thereunder is true and correct in all material
respects as of such applicable date;
(iii) each Receivable conveyed to RFC V has been conveyed to
RFC V free and clear of any Lien (other than any Lien for municipal or
other local taxes of the related Account Owner or TRS if such taxes are
not then due and payable or if the related Account Owner or TRS is then
contesting the validity thereof in good faith by appropriate
proceedings and has set aside on its books adequate reserves with
respect thereto);
(iv) all authorizations, consents, orders or approvals of or
registrations or declarations with any Governmental Authority required
to be obtained, effected or given by TRS in connection with the
conveyance of Receivables to RFC V have been duly obtained, effected or
given and are in full force and effect;
(v) this Agreement and, in the case of Additional Accounts,
the related Supplemental Conveyance, constitutes a valid sale to RFC V
of all right, title and interest of TRS in the Purchased Assets, and
such sale is perfected under the UCC;
(vi) on the applicable Selection Date, each such Account is an
Eligible Account;
17
(vii) on the applicable Selection Date, each Receivable
contained in such Account on such applicable date and sold to RFC V by
TRS is an Eligible Receivable;
(viii) as of the date of the creation of any new Receivable
sold to RFC V by TRS, such Receivable is an Eligible Receivable; and
(ix) (ix) no selection procedures believed by TRS to be
materially adverse to the interests of RFC V or its transferees have
been used in selecting such Accounts.
(b) Notice of Breach. The representations and warranties set
forth in this Section 4.02 shall survive the sale of the Purchased Assets to RFC
V. Upon discovery by either TRS or RFC V of a breach of any of the
representations and warranties set forth in this Section 4.02, the party
discovering such breach shall give prompt written notice to the other party, the
Owner Trustee and the Indenture Trustee following such discovery. TRS hereby
acknowledges that RFC V intends to rely on the representations hereunder in
connection with representations made by RFC V to secured parties, assignees or
subsequent transferees, including transfers made by RFC V to the Trust pursuant
to the Transfer and Servicing Agreement and the grant of a security interest by
the Trust to the Indenture Trustee pursuant to the Indenture, and TRS hereby
consents to such reliance.
Section 4.03. Representations and Warranties of RFC V. As of
the Closing Date and each Addition Date, RFC V hereby represents and warrants
to, and agrees with, TRS that:
(a) Organization and Good Standing. RFC V is a limited
liability company duly formed and validly existing under the laws of the State
of Delaware, and has, in all material respects, full power and authority to own
its properties and conduct its business as such properties are presently owned
and such business is presently conducted, and to execute, deliver and perform
its obligations under this Agreement.
(b) Due Qualification. RFC V is duly qualified to do business
and is in good standing and has obtained all necessary licenses and approvals,
in each jurisdiction in which failure to so qualify or to obtain such licenses
and approvals would have a material adverse effect on this Agreement or the
transactions contemplated hereby or on the ability of RFC V to perform its
obligations under this Agreement.
(c) Due Authorization. The execution and delivery by RFC V of
this Agreement and any other document or instrument delivered pursuant hereto,
including any Supplemental Conveyance, to which RFC V is a party, and the
consummation by RFC V of the transactions provided for in this Agreement and any
such Supplemental Conveyance, have been duly authorized by RFC V by all
necessary company action on the part of RFC V.
(d) No Conflict or Violation. The execution and delivery by
RFC V of this Agreement, the performance by RFC V of the transactions
contemplated by this Agreement and the fulfillment by RFC V of the terms of this
Agreement applicable to RFC V, will not conflict with or violate any
Requirements of Law applicable to RFC V or conflict with, result in any breach
of any of the material terms and provisions of, or constitute (with or without
notice or lapse of time or both) a material default under, any indenture,
contract, agreement, mortgage, deed of trust or other instrument to which RFC V
is a party or by which it or any of its properties are bound.
(e) No Proceedings. There are no Proceedings or investigations
pending or, to the best knowledge of RFC V, threatened, against RFC V, before
any Governmental Authority (i) asserting the invalidity of this Agreement, (ii)
seeking to prevent the consummation of any of the transactions contemplated by
this Agreement, (iii) seeking any determination or ruling that, in the
reasonable judgment of RFC V, would materially and adversely affect the
performance by RFC V of its obligations under this Agreement or (iv) seeking any
determination or ruling that, in the reasonable judgment of RFC V, would
materially and adversely affect the validity or enforceability of this
Agreement.
18
(f) All Consents. All authorizations, consents, orders or
approvals of or registrations or declarations with any Governmental Authority
required to be obtained, effected or given by RFC V in connection with the
execution and delivery by RFC V of this Agreement and the performance by RFC V
of the transactions contemplated by this Agreement have been duly obtained,
effected or given and are in full force and effect.
The representations and warranties set forth in this Section
4.03 shall survive the sale of the Purchased Assets to RFC V. Upon discovery by
TRS or RFC V of a breach of any of the foregoing representations and warranties,
the party discovering such breach shall give prompt written notice to the other
party, the Owner Trustee and the Indenture Trustee following such discovery.
[END OF ARTICLE IV]
19
ARTICLE V
COVENANTS
Section 5.01. Covenants of TRS. TRS hereby covenants and
agrees with RFC V as follows:
(a) Receivables Not To Be Evidenced by Instruments. Except in
connection with its enforcement or collection of an Account, TRS will take no
action to cause any Receivable sold to RFC V hereunder to be evidenced by any
instrument (as defined in the UCC), and if any Receivable is so evidenced as a
result of any action by TRS, it shall be deemed to be a Receivable described in
Subsection 6.01(a) and shall be reassigned to TRS in accordance with Subsection
6.01(b).
(b) Security Interests. Except for the conveyances hereunder,
TRS will not sell, pledge, assign or transfer to any other Person, or take any
other action inconsistent with RFC V's ownership of, the Purchased Assets, or
grant, create, incur, assume or suffer to exist any Lien arising through or
under TRS on any Purchased Asset or any interest therein (other than any Lien
for municipal or other local taxes of the related Account Owner or TRS if such
taxes are not then due and payable or if the related Account Owner or TRS is
then contesting the validity thereof in good faith by appropriate proceedings
and has set aside on its books adequate reserves with respect thereto), and TRS
shall not claim any ownership interest in any Purchased Asset and shall defend
the right, title and interest of RFC V in, to and under the Purchased Assets
against all claims of third parties claiming through or under TRS.
(c) Account Allocations. If a Transfer Restriction Event
occurs, TRS agrees (except as prohibited by any such order or any Requirement of
Law) to allocate and pay to RFC V, after the date of such Transfer Restriction
Event, all Collections with respect to Receivables previously sold to RFC V. To
the extent that it is not clear to TRS whether collections relate to a
Receivable that was sold to RFC V or to a receivable that TRS is unable to sell
to RFC V, TRS agrees that it shall allocate payments on each Account with
respect to the principal balance of such Account first to the oldest principal
balance of such Account. Notwithstanding any cessation of the sale to RFC V of
additional Receivables, Receivables sold to RFC V prior to the occurrence of the
Transfer Restriction Event and Collections in respect of such Receivables shall
continue to be property of RFC V available for transfer by RFC V to the Trust
pursuant to the Transfer and Servicing Agreement.
(d) Delivery of Collections. In the event that TRS receives
Collections or any other amounts in respect of the Purchased Assets sold to RFC
V hereunder, TRS agrees to pay to RFC V (or to the Servicer or the Indenture
Trustee if RFC V so directs) all such Collections and other amounts promptly
after receipt thereof.
(e) Notice of Liens. TRS shall notify RFC V promptly after
becoming aware of any Lien arising through or under TRS on any Purchased Asset
other than the conveyances hereunder.
(f) Documentation of Transfer. TRS shall timely file in all
appropriate filing offices the documents which are necessary or advisable to
perfect and maintain the perfection of the sale of the Purchased Assets to
RFC V.
20
(g) Account Agreements and Guidelines. Subject to compliance
with all Requirements of Law, TRS may effect or permit a change to the terms and
provisions of the Account Agreements or the Account Guidelines applicable to the
Accounts in any respect (including the calculation of the amount or the timing
of charge-offs and other fees to be assessed thereon) only if such change is
made applicable to any comparable segment of charge accounts owned by the
related Account Owner or TRS which have characteristics the same as, or
substantially similar to, the Accounts that are the subject of such change,
except as otherwise restricted by an endorsement, sponsorship, or other
agreement between the related Account Owner or TRS and an unrelated third party
or by the terms of the Account Agreements. Notwithstanding the above, unless
required by Requirements of Law, TRS will not take any action with respect to
such Account Agreements or such Account Guidelines which, at the time of such
action, TRS reasonably believes will have a material adverse effect on RFC V.
TRS shall take reasonable steps to cause the related Account Owner to abide by
these restrictions on changes and actions with respect to the Account Agreements
and the Account Guidelines.
(h) Name and Type and Jurisdiction of Organization. TRS shall
not change its name or its type or jurisdiction of organization without
previously having delivered to RFC V an opinion of counsel to the effect that
all actions have been taken, and all filings have been made, as are necessary to
continue and maintain the first-priority perfected ownership interest of RFC V
in the Purchased Assets.
(i) Annual Opinion. On or before March 31st of each calendar
year, commencing March 31, 2006, TRS shall deliver to RFC V, with a copy to the
Indenture Trustee, an opinion of counsel to the effect that (i) no further
action with respect to the recording or filing of any financing statements, any
amendments to financing statements, or any other documents or filings is then
necessary to perfect the ownership interest of RFC V in the Purchased Assets,
and (ii) no further action with respect to the recording or filing of any
financing statements, any amendments to financing statements, or any other
documents or filings will be necessary prior to March 31st of the next calendar
year to perfect the ownership interest of RFC V in the Purchased Assets or
stating what such filings will be necessary prior to such March 31st.
[END OF ARTICLE V]
21
ARTICLE VI
REPURCHASE OBLIGATION
Section 6.01. Reassignment of Ineligible Receivables.
(a) In the event any representation or warranty under
Subsection 4.02(a)(ii), (iii), (iv), (vi), (vii), (viii) or (ix) is not true and
correct in any material respect as of the date specified therein with respect to
any Receivable or the related Account and as a result of such breach RFC V is
required under Subsection 2.6(a) of the Transfer and Servicing Agreement to
accept reassignment of such Receivables previously sold by TRS to RFC V pursuant
to this Agreement, TRS shall accept reassignment of such Receivables on the
terms and conditions set forth in Subsection 6.01(b).
(b) TRS shall accept reassignment of any Receivables described
in Subsection 6.01(a) from RFC V on the date on which such Receivables are
reassigned to RFC V pursuant to Subsection 2.6(a) of the Transfer and Servicing
Agreement, and shall pay for such reassigned Receivables by paying to RFC V in
immediately available funds an amount equal to the unpaid balance of such
Receivables. Upon reassignment of such Receivables, RFC V shall automatically
and without further action sell, transfer, assign, set-over and otherwise convey
to TRS, without recourse, representation or warranty, all the right, title and
interest of RFC V in and to such Receivables, all Recoveries allocable to such
Receivables, all monies due or to become due and all amounts received or
receivable with respect thereto, all Collections with respect thereto, and all
proceeds (including "proceeds" as defined in the UCC) thereof. Such reassigned
Receivables shall be treated by RFC V as collected in full as of the date on
which they were reassigned. RFC V shall execute such documents and instruments
of transfer or assignment and take such other actions as shall reasonably be
requested by TRS to effect the conveyance of such Receivables and other property
pursuant to this Subsection.
Section 6.02. Reassignment of Other Receivables.
(a) In the event any representation or warranty set forth in
Subsection 4.01(a)(i) or (iii) or Subsection 4.02(a)(i) or (v) is not true and
correct in any material respect and as a result of such breach RFC V is required
under Section 2.7 of the Transfer and Servicing Agreement to accept a
reassignment of all of the Receivables previously sold by TRS to RFC V pursuant
to this Agreement, TRS shall accept a reassignment of such Receivables on the
terms and conditions set forth in Subsection 6.02(b).
(b) TRS shall accept reassignment of any Receivables described
in Subsection 6.02(a) from RFC V on the date on which such Receivables are
reassigned to RFC V, and shall pay for such reassigned Receivables by paying to
RFC V, not later than 11:00 a.m., New York City time, on the First Note Transfer
Date following the Monthly Period in which such reassignment obligation arises,
an amount equal to the unpaid balance of such Receivables. Upon reassignment of
such Receivables, RFC V shall automatically and without further action sell,
transfer, assign, set-over and otherwise convey to TRS, without recourse,
representation or warranty, all the right, title and interest of RFC V in and to
such Receivables, all Recoveries allocable to such Receivables, all monies due
or to become due and all amounts received or receivable with respect thereto,
all Collections with respect thereto, and all proceeds (including "proceeds" as
defined in the UCC) thereof. Such reassigned Receivables shall be treated by RFC
V as collected in full as of the date on which they were reassigned. RFC V shall
execute such documents and instruments of transfer or assignment and take such
other actions as shall reasonably be requested by TRS to effect the conveyance
of such Receivables and other property pursuant to this Subsection.
[END OF ARTICLE VI]
22
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.01. Conditions to RFC V's Obligations Regarding
Initial Receivables. The obligations of RFC V to purchase the Receivables in the
Initial Accounts on the Closing Date shall be subject to the satisfaction of the
following conditions:
(a) all representations and warranties of TRS contained in
this Agreement shall be true and correct on the Closing Date with the same
effect as though such representations and warranties had been made on such date
(except that, to the extent any such representation or warranty expressly
relates to an earlier date, such representation or warranty was true and correct
on such earlier date);
(b) all information concerning the Initial Accounts provided
to RFC V shall be true and correct as of the Initial Cut-Off Date in all
material respects;
(c) TRS shall have (i) delivered to RFC V a true and correct
Account Schedule with respect to the Initial Accounts, and (ii) performed all
other obligations required to be performed by TRS on or before the Closing Date
by the provisions of this Agreement;
(d) TRS shall have recorded and filed, at its expense, any
financing statement with respect to the Purchased Assets meeting the
requirements of applicable law in such manner and in such jurisdictions as are
necessary to perfect the sale of the Purchased Assets from TRS to RFC V, and
shall have provided delivery of a file-stamped copy of such financing statements
or other evidence of such filings to RFC V; and
(e) all corporate and legal proceedings and all instruments in
connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to RFC V, and RFC V shall have received from
TRS copies of all documents (including records of corporate proceedings)
relevant to the transactions herein contemplated as RFC V may reasonably have
requested.
Section 7.02. Conditions Precedent to TRS's Obligations. The
obligations of TRS to sell the Receivables in the Initial Accounts on the
Closing Date shall be subject to the satisfaction of the following conditions:
(a) all representations and warranties of RFC V contained in
this Agreement shall be true and correct on the Closing Date with the same
effect as though such representations and warranties had been made on such date
(except that, to the extent any such representation or warranty expressly
relates to an earlier date, such representation or warranty was true and correct
on such earlier date);
(b) payment or provision for payment of the Purchase Price in
accordance with Section 3.01 hereof shall have been made; and
(c) all company and legal proceedings and all instruments in
connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to TRS, and TRS shall have received from RFC
V copies of all documents (including records of company proceedings) relevant to
the transactions herein contemplated as TRS may reasonably have requested.
[END OF ARTICLE VII]
23
ARTICLE VIII
TERM AND PURCHASE TERMINATION
Section 8.01. Term. This Agreement shall commence as of the
date of execution and delivery hereof and shall continue at least until the
earlier of (i) the termination of the Trust as provided in Article IX of the
Trust Agreement and (ii) the Transfer and Servicing Agreement being amended for
the purpose of replacing RFC V as Transferor under the Transfer and Servicing
Agreement. Thereafter this Agreement may be terminated by the mutual agreement
of the parties hereto.
Section 8.02. Purchase Termination. If (i) TRS shall file a
petition or commence a Proceeding (A) to take advantage of any bankruptcy,
conservatorship, receivership, insolvency, or similar laws or (B) for the
appointment of a trustee, conservator, receiver, liquidator, or similar official
for or relating to TRS or all or substantially all of its property, (ii) TRS
shall consent or fail to object to any such petition filed or Proceeding
commenced against or with respect to it or all or substantially all of its
property, or any such petition or Proceeding shall not have been dismissed
within sixty (60) days of its filing or commencement, or a court, agency, or
other supervisory authority with jurisdiction shall have decreed or ordered
relief with respect to any such petition or Proceeding, (iii) TRS shall be
unable, or shall admit in writing its inability, to pay its debts generally as
they become due, (iv) TRS shall make an assignment for the benefit of its
creditors or (v) TRS shall voluntarily suspend payment of its obligations (each,
an "INSOLVENCY EVENT"); then TRS shall immediately cease to sell Receivables to
RFC V and shall promptly give notice to RFC V, the Owner Trustee and the
Indenture Trustee of such Insolvency Event. Notwithstanding any cessation of the
sale to RFC V of additional Receivables, Receivables sold to RFC V prior to the
occurrence of such Insolvency Event and Collections in respect of such
Receivables shall continue to be property of RFC V available for transfer by RFC
V to the Trust pursuant to the Transfer and Servicing Agreement. To the extent
that it is not clear to TRS whether collections relate to a Receivable that was
sold to RFC V or to a receivable that TRS has not sold to RFC V, TRS agrees that
it shall allocate payments on each Account with respect to the principal balance
of such Account first to the oldest principal balance of such Account.
[END OF ARTICLE VIII]
24
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. Amendment. This Agreement may not be changed
orally, but only by an instrument in writing signed by RFC V and TRS in
accordance with this Section 9.01; provided, however, that no amendment shall be
effective unless written confirmation has been received by RFC V from each Note
Rating Agency that such amendment will not result in the reduction or withdrawal
of the respective ratings of such Note Rating Agency for any securities issued
by the Trust; provided, further, that TRS shall have delivered to RFC V an
Officer's Certificate of TRS, dated the date of such action, stating that TRS
reasonably believes that such action will not result in an Event of Default or
an Early Amortization Event. Any conveyance (including any Supplemental
Conveyance) or reassignment executed in accordance with the provisions hereof
shall not be considered to be an amendment to this Agreement. A copy of any
amendment to this Agreement shall be sent to each Note Rating Agency.
Section 9.02. Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 9.03. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by certified mail, return receipt requested
and postage prepaid, to (a) in the case of TRS, American Express Travel Related
Services Company, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Secretary (facsimile: (▇▇▇) ▇▇▇-▇▇▇▇), (b) in the case of RFC V, American
Express Receivables Financing Corporation V LLC, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: President (facsimile: 212-640-2417), (c) in
the case of the Indenture Trustee, The Bank of New York, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Asset Backed Unit (facsimile:
212-815-5999), and (d) in the case of the Owner Trustee, Wilmington Trust
Company, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
Corporate Trust Administration (facsimile: 302-636-4140); or, as to each party,
at such other address as shall be designated by such party in a written notice
to each other party in accordance with this Section 9.03.
Section 9.04. Severability of Provisions. If any one or more
of the covenants, agreements, provisions or terms of this Agreement shall for
any reason whatsoever be held invalid, then such covenants, agreements,
provisions, or terms shall be deemed severable from the remaining covenants,
agreements, provisions, and terms of this Agreement and shall in no way affect
the validity or enforceability of such remaining covenants, agreements,
provisions and terms of this Agreement.
Section 9.05. Assignment. Notwithstanding anything to the
contrary contained herein, other than RFC V's assignment of its right, title,
and interest in, to, and under this Agreement to the Trust as contemplated by
the Transfer and Servicing Agreement and Section 9.06 hereof, this Agreement may
not be assigned by the parties hereto; provided, however, that TRS shall have
the right to assign its right, title and interest in, to and under this
Agreement to (a) any successor by merger assuming this Agreement or (b) to any
other entity; provided, further, that (x) in the case of an assignment pursuant
to clauses (a) and (b), TRS has given ten (10) days prior notice to RFC V, the
Owner Trustee, the Indenture Trustee and each Note Rating Agency, and (y) in the
case of an assignment pursuant to clause (b), written confirmation has been
received by RFC V and the Indenture Trustee from each Note Rating Agency that
such assignment will not result in the reduction or withdrawal of the respective
ratings of such Note Rating Agency for any securities issued by the Trust.
25
Section 9.06. Acknowledgement and Agreement of TRS. By
execution below, TRS expressly acknowledges and agrees that all of RFC V's
right, title, and interest in, to, and under this Agreement, including all of
RFC V's right, title, and interest in and to the Purchased Assets, may be
assigned by RFC V to the Trust and by the Trust to the Indenture Trustee, and
TRS consents to such assignments. TRS further agrees that notwithstanding any
claim, counterclaim, right of setoff or defense which it may have against RFC V,
due to a breach by RFC V of this Agreement or for any other reason, and
notwithstanding the bankruptcy of RFC V or any other event whatsoever, TRS's
sole remedy shall be a claim against RFC V for money damages, and then only to
the extent of funds available to RFC V, and in no event shall TRS assert any
claim on or any interest in the Purchased Assets or take any action which would
reduce or delay receipt by the Trust or the Indenture Trustee of Collections
with respect to the Purchased Assets. Additionally, TRS agrees that any amounts
payable by TRS to RFC V hereunder which are to be paid by RFC V to the Trust,
the Indenture Trustee or the Servicer shall be paid by TRS directly to the
Trust, the Indenture Trustee or the Servicer, as applicable, as assignee (or the
agent of an assignee) of RFC V.
Section 9.07. Further Assurances. RFC V and TRS agree to do
and perform, from time to time, any and all acts and to execute any and all
further instruments required or reasonably requested by the other party, the
Trust or the Indenture Trustee more fully to effect the purposes of this
Agreement, including the execution of any financing statements or amendments
thereto or equivalent documents relating to the Purchased Assets for filing
under the provisions of the UCC or other law of any applicable jurisdiction.
Section 9.08. No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of RFC V or TRS, any right,
remedy, power or privilege hereunder, shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exhaustive of any rights,
remedies, powers and privileges provided by law.
Section 9.09. Counterparts. This Agreement may be executed in
two or more counterparts (and by different parties on separate counterparts),
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
Section 9.10. Binding; Third-Party Beneficiaries. This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and permitted assigns. The Trust, the Owner
Trustee and the Indenture Trustee shall be considered third-party beneficiaries
of this Agreement.
Section 9.11. Merger and Integration. Except as specifically
stated otherwise herein, this Agreement sets forth the entire understanding of
the parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
26
Section 9.12. Headings. The headings are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
Section 9.13. Schedules and Exhibits. The schedules and
exhibits attached hereto and referred to herein shall constitute a part of this
Agreement and are incorporated into this Agreement for all purposes.
Section 9.14. Survival of Representations and Warranties. All
representations, warranties and agreements contained in this Agreement or
contained in any Supplemental Conveyance shall remain operative and in full
force and effect and shall survive conveyance of the Purchased Assets by RFC V
to the Trust pursuant to the Transfer and Servicing Agreement and by the Trust
to the Indenture Trustee pursuant to the Indenture.
Section 9.15. Nonpetition Covenant. Notwithstanding any prior
termination of this Agreement, TRS agrees that at no time shall it commence, or
join in commencing, a bankruptcy case or other insolvency or similar proceeding
under the laws of any jurisdiction against RFC V or the Trust.
[END OF ARTICLE IX]
27
IN WITNESS WHEREOF, TRS and RFC V have caused this Receivables
Purchase Agreement to be duly executed by their respective officers as of the
date first above written.
AMERICAN EXPRESS TRAVEL RELATED
SERVICES COMPANY, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
AMERICAN EXPRESS RECEIVABLES
FINANCING CORPORATION V LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President and Treasurer
EXHIBIT A
FORM OF AGGREGATE ADDITION ACCOUNT SUPPLEMENTAL CONVEYANCE
(As required by Section 2.02 of
the Receivables Purchase Agreement)
SUPPLEMENTAL CONVEYANCE No. [___], dated as of [__________],
by and between AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC., a New
York corporation (together with its permitted successors and assigns, "TRS"),
and AMERICAN EXPRESS RECEIVABLES FINANCING CORPORATION V LLC, a Delaware limited
liability company (together with its permitted successors and assigns, "RFC V"),
pursuant to the Receivables Purchase Agreement referred to below.
W I T N E S S E T H:
WHEREAS, TRS and RFC V are parties to a Receivables Purchase
Agreement, dated as of May 19, 2005 (hereinafter as such agreement may have
been, or may from time to time be, amended, supplemented or otherwise modified,
the "RECEIVABLES PURCHASE AGREEMENT");
WHEREAS, pursuant to the Receivables Purchase Agreement, TRS
wishes to designate Aggregate Addition Accounts to be included as Accounts and
TRS wishes to convey its right, title and interest in the Receivables of such
Aggregate Addition Accounts, whether existing at the Addition Cut-Off Date or
thereafter created, to RFC V pursuant to the Receivables Purchase Agreement; and
WHEREAS, RFC V is willing to accept such designation and
conveyance subject to the terms and conditions hereof.
NOW, THEREFORE, TRS and RFC V hereby agree as follows:
1. Defined Terms. All capitalized terms used herein shall have
the meanings ascribed to them in the Receivables Purchase Agreement unless
otherwise defined herein.
"Addition Cut-Off Date" shall mean, with respect to the
Aggregate Addition Accounts, the close of business on [__________].
"Addition Date" shall mean, with respect to the Aggregate
Addition Accounts, [__________].
"Additional Purchased Assets" shall have the meaning set forth
in Subsection 3(a).
"Aggregate Addition Accounts" shall mean the Aggregate
Addition Accounts, as defined in the Receivables Purchase Agreement, that are
designated hereby and listed on SCHEDULE 1 hereto.
A-1
"Selection Date" shall mean [(i)] for the added accounts with
the code designation "[__]," the close of business on the cycle billing date for
such added accounts occurring in the period beginning on the close of business
on [________] and ending at the close of business on [_______] [and (ii) for the
added accounts with the code designation "[__]," the close of business on the
cycle billing date for such added accounts occurring in the period beginning on
the close of business on [________] and ending at the close of business on
[_________]].
2. Designation of Aggregate Addition Accounts. TRS delivers
herewith an Account Schedule containing a true and complete list of the
Aggregate Addition Accounts. Such Account Schedule is incorporated into and made
part of this Supplemental Conveyance, shall be SCHEDULE 1 to this Supplemental
Conveyance and shall supplement SCHEDULE 1 to the Receivables Purchase
Agreement.
3. Conveyance of Receivables.
TRS does hereby sell, transfer, assign, set over and otherwise
convey to RFC V, without recourse except as provided in the Receivables Purchase
Agreement, all of its right, title and interest, whether now owned or hereafter
acquired, in, to and under the Receivables arising in the Aggregate Addition
Accounts (including Related Accounts with respect to such Aggregate Addition
Accounts), existing at the Addition Cut-Off Date and thereafter created, all
Recoveries allocable to such Receivables, all monies due or to become due and
all amounts received or receivable with respect thereto, all Collections with
respect thereto, and all proceeds (including "proceeds" as defined in the UCC)
thereof (collectively, the "ADDITIONAL PURCHASED ASSETS").
If necessary, TRS shall (i) record and file, at its own
expense, any financing statements (and amendments with respect to such financing
statements when applicable) with respect to the Additional Purchased Assets
meeting the requirements of applicable state law in such manner and in such
jurisdictions as are necessary to perfect, and maintain perfection of, the sale
of the Additional Purchased Assets to RFC V, (ii) cause such financing
statements and amendments to name TRS, as seller, and RFC V, as purchaser, of
the Additional Purchased Assets and (iii) to deliver a file-stamped copy of such
financing statements or amendments or other evidence of such filings to RFC V as
soon as is practicable after filing.
TRS shall, at its own expense, on or prior to the Addition
Date, indicate in its books and records (including its computer files) that all
Receivables created in connection with the Aggregate Addition Accounts and the
related Additional Purchased Assets have been sold to RFC V pursuant to this
Supplemental Conveyance.
The parties hereto intend that the conveyance of TRS's right,
title and interest in and to the Additional Purchased Assets shall constitute an
absolute sale, conveying good title free and clear of any liens, claims,
encumbrances or rights of others from TRS to RFC V. It is the intention of the
parties hereto that the arrangements with respect to the Additional Purchased
Assets shall constitute a purchase and sale of such Additional Purchased Assets
and not a loan. In the event, however, that it were to be determined that the
transactions evidenced hereby constitute a loan and not a purchase and sale, it
is the intention of the parties hereto that this Supplemental Conveyance shall
constitute a security agreement under applicable law, and that TRS shall be
deemed to have granted, and TRS does hereby grant, to RFC V a first priority
perfected security interest in all of TRS's right, title and interest, whether
now owned or hereafter acquired, in, to and under the Additional Purchased
Assets to secure the obligations of TRS hereunder and under the Receivables
Purchase Agreement.
A-2
To the extent that TRS retains any interest in the Additional
Purchased Assets, TRS hereby grants to the Trust and the Indenture Trustee a
security interest in all of TRS's right, title and interest, whether now owned
or hereafter acquired, in, to and under the Additional Purchased Assets, to
secure the performance of all of the obligations of TRS hereunder and under the
Receivables Purchase Agreement. With respect to such security interest and such
collateral, each of the Trust and the Indenture Trustee shall have all of the
rights that it has under the Transfer and Servicing Agreement. Each of the Trust
and the Indenture Trustee shall also have all of the rights of a secured
creditor under the UCC.
4. Acceptance by RFC V. RFC V hereby acknowledges that, prior
to or simultaneously with the execution and delivery of this Supplemental
Conveyance, TRS delivered to RFC V the Account Schedule described in Section 2
of this Supplemental Conveyance with respect to all Aggregate Addition Accounts.
5. Representations and Warranties of TRS. TRS hereby
acknowledges on the Addition Date that it makes the representations and
warranties in Sections 4.01 and 4.02 of the Receivables Purchase Agreement with
respect to the Aggregate Addition Accounts.
6. Ratification of the Receivables Purchase Agreement. The
Receivables Purchase Agreement is hereby ratified, and all references to the
"RECEIVABLES PURCHASE AGREEMENT," to "THIS AGREEMENT" and "HEREIN" shall be
deemed from and after the Addition Date to be a reference to the Receivables
Purchase Agreement as supplemented and amended by this Supplemental Conveyance.
Except as expressly amended hereby, all the representations, warranties, terms,
covenants and conditions of the Receivables Purchase Agreement shall remain
unamended and shall continue to be, and shall remain, in full force and effect
in accordance with its terms and, except as expressly provided herein, shall not
constitute or be deemed to constitute a waiver of compliance with or consent to
non-compliance with any term or provision of the Receivables Purchase Agreement.
7. Counterparts. This Supplemental Conveyance may be executed
in any number of counterparts, all of which taken together shall constitute one
and the same instrument.
8. GOVERNING LAW. THIS SUPPLEMENTAL CONVEYANCE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401
OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-3
IN WITNESS WHEREOF, TRS and RFC V have caused this
Supplemental Conveyance to be duly executed and delivered by their respective
duly authorized officers on the date first above written.
AMERICAN EXPRESS TRAVEL RELATED
SERVICES COMPANY, INC.
By: __________________________________
Name:
Title:
AMERICAN EXPRESS RECEIVABLES
FINANCING CORPORATION V LLC
By: __________________________________
Name:
Title:
A-4
Schedule 1 to
Supplemental
Conveyance
AGGREGATE ADDITION ACCOUNTS
A-5
EXHIBIT B
FORM OF SUPPLEMENTAL CONVEYANCE FOR NEW ACCOUNTS
(As required by Section 2.03 of
the Receivables Purchase Agreement)
SUPPLEMENTAL CONVEYANCE No. [___], dated as of the Addition
Date set forth below, by and between AMERICAN EXPRESS TRAVEL RELATED SERVICES
COMPANY, INC., a New York corporation (together with its permitted successors
and assigns, "TRS"), and AMERICAN EXPRESS RECEIVABLES FINANCING CORPORATION V
LLC, a Delaware limited liability company (together with its permitted
successors and assigns, "RFC V"), pursuant to the Receivables Purchase Agreement
referred to below.
W I T N E S S E T H:
WHEREAS, TRS and RFC V are parties to a Receivables Purchase
Agreement, dated as of May 19, 2005 (hereinafter as such agreement may have
been, or may from time to time be, amended, supplemented or otherwise modified,
the "RECEIVABLES PURCHASE AGREEMENT");
WHEREAS, pursuant to the Receivables Purchase Agreement, TRS
wishes to designate New Accounts to be included as Accounts and TRS wishes to
convey its right, title and interest in the Receivables of such New Accounts,
whether existing at the Addition Cut-Off Date or thereafter created, to RFC V
pursuant to the Receivables Purchase Agreement; and
WHEREAS, RFC V is willing to accept such designation and
conveyance subject to the terms and conditions hereof.
NOW, THEREFORE, TRS and RFC V hereby agree as follows:
1. Defined Terms. All capitalized terms used herein shall have
the meanings ascribed to them in the Receivables Purchase Agreement unless
otherwise defined herein.
"Addition Cut-Off Date" shall mean, with respect to each New
Account, the date on which such New Account is originated.
"Addition Date" shall mean, with respect to the New
Accounts, [_________].
"Additional Purchased Assets" shall have the meaning set forth
in Subsection 3(a).
"New Account Delivery Date" shall mean the fifteenth calendar
day of the month (or, if such fifteenth calendar day is not a Business Day, the
next succeeding Business Day) following the Monthly Period in which the Addition
Date occurs.
"New Accounts" shall mean the New Accounts, as defined in the
Receivables Purchase Agreement, that are designated hereby and to be listed on
SCHEDULE 1 hereto.
B-1
"Selection Date" shall mean, with respect to each New Account,
the date on which such New Account is originated.
2. Designation of New Accounts. The New Accounts are hereby
designated. On the New Account Delivery Date, TRS shall deliver to RFC V an
Account Schedule containing a true and complete list of the New Accounts. Such
Account Schedule is incorporated into and made part of this Supplemental
Conveyance, shall be SCHEDULE 1 to this Supplemental Conveyance and shall
supplement SCHEDULE 1 to the Receivables Purchase Agreement.
3. Conveyance of Receivables. TRS does hereby sell, transfer,
assign, set over and otherwise convey to RFC V, without recourse except as
provided in the Receivables Purchase Agreement, all of its right, title and
interest, whether now owned or hereafter acquired, in, to and under the
Receivables arising in the New Accounts (including Related Accounts with respect
to such New Accounts), existing at the applicable Addition Cut-Off Date of each
New Account and thereafter created, all Recoveries allocable to such
Receivables, all monies due or to become due and all amounts received or
receivable with respect thereto, all Collections with respect thereto, and all
proceeds (including "proceeds" as defined in the UCC) thereof (collectively, the
"ADDITIONAL PURCHASED ASSETS").
(a) If necessary, TRS shall (i) record and file, at its own
expense, any financing statements (and amendments with respect to such financing
statements when applicable) with respect to the Additional Purchased Assets
meeting the requirements of applicable state law in such manner and in such
jurisdictions as are necessary to perfect, and maintain perfection of, the sale
of the Additional Purchased Assets to RFC V, (ii) cause such financing
statements and amendments to name TRS, as seller, and RFC V, as purchaser, of
the Additional Purchased Assets and (iii) to deliver a file-stamped copy of such
financing statements or amendments or other evidence of such filings to RFC V as
soon as is practicable after filing.
(b) TRS shall, at its own expense, on or prior to the Addition
Date, indicate in its books and records (including its computer files) that all
Receivables created in connection with the New Accounts and the related
Additional Purchased Assets have been sold to RFC V pursuant to this
Supplemental Conveyance.
(c) The parties hereto intend that the conveyance of TRS's
right, title and interest in and to the Additional Purchased Assets shall
constitute an absolute sale, conveying good title free and clear of any liens,
claims, encumbrances or rights of others from TRS to RFC V. It is the intention
of the parties hereto that the arrangements with respect to the Additional
Purchased Assets shall constitute a purchase and sale of such Additional
Purchased Assets and not a loan. In the event, however, that it were to be
determined that the transactions evidenced hereby constitute a loan and not a
purchase and sale, it is the intention of the parties hereto that this
Supplemental Conveyance shall constitute a security agreement under applicable
law, and that TRS shall be deemed to have granted, and TRS does hereby grant, to
RFC V a first priority perfected security interest in all of TRS's right, title
and interest, whether now owned or hereafter acquired, in, to and under the
Additional Purchased Assets to secure the obligations of TRS hereunder and under
the Receivables Purchase Agreement.
(d) To the extent that TRS retains any interest in the
Additional Purchased Assets, TRS hereby grants to the Trust and the Indenture
Trustee a security interest in all of TRS's right, title and interest, whether
now owned or hereafter acquired, in, to and under the Additional Purchased
Assets, to secure the performance of all of the obligations of TRS hereunder and
under the Receivables Purchase Agreement. With respect to such security interest
and such collateral, the Trust and the Indenture Trustee shall have all of the
rights that it has under the Transfer and Servicing Agreement. Each of the Trust
and the Indenture Trustee shall also have all of the rights of a secured
creditor under the UCC.
B-2
4. Acceptance by RFC V. RFC V hereby acknowledges that, on the
New Account Delivery Date, TRS has agreed to deliver to RFC V the Account
Schedule described in Section 2 of this Supplemental Conveyance with respect to
all New Accounts.
5. Representations and Warranties of TRS. TRS hereby
acknowledges on the Addition Date that it makes the representations and
warranties in Sections 4.01 and 4.02 of the Receivables Purchase Agreement with
respect to the New Accounts.
6. Ratification of the Receivables Purchase Agreement. The
Receivables Purchase Agreement is hereby ratified, and all references to the
"RECEIVABLES PURCHASE AGREEMENT," to "THIS AGREEMENT" and "HEREIN" shall be
deemed from and after the Addition Date to be a reference to the Receivables
Purchase Agreement as supplemented and amended by this Supplemental Conveyance.
Except as expressly amended hereby, all the representations, warranties, terms,
covenants and conditions of the Receivables Purchase Agreement shall remain
unamended and shall continue to be, and shall remain, in full force and effect
in accordance with its terms and, except as expressly provided herein, shall not
constitute or be deemed to constitute a waiver of compliance with or consent to
non-compliance with any term or provision of the Receivables Purchase Agreement.
7. Counterparts. This Supplemental Conveyance may be executed
in any number of counterparts, all of which taken together shall constitute one
and the same instrument.
8. GOVERNING LAW. THIS SUPPLEMENTAL CONVEYANCE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401
OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
B-3
IN WITNESS WHEREOF, TRS and RFC V have caused this
Supplemental Conveyance to be duly executed and delivered by their respective
duly authorized officers on the date first above written.
AMERICAN EXPRESS TRAVEL RELATED
SERVICES COMPANY, INC.
By: ____________________________________
Name:
Title:
AMERICAN EXPRESS RECEIVABLES FINANCING
CORPORATION V LLC
By: ____________________________________
Name:
Title:
B-4
Schedule 1 to
Supplemental
Conveyance
NEW ACCOUNTS
B-5
EXHIBIT C
FORM OF REASSIGNMENT OF RECEIVABLES
(As required by Section 2.04 of
the Receivables Purchase Agreement)
REASSIGNMENT No. [__] OF RECEIVABLES, dated as of [ ], by and
between AMERICAN EXPRESS RECEIVABLES FINANCING CORPORATION V LLC, a Delaware
limited liability company (together with its permitted successors and assigns,
"RFC V"), and AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC., a New York
corporation (together with its permitted successors and assigns, "TRS"),
pursuant to the Receivables Purchase Agreement referred to below.
WITNESSETH:
WHEREAS, RFC V and TRS are parties to a Receivables Purchase
Agreement, date as of May 19, 2005 (hereinafter as such agreement may have been,
or may from time to time be, amended, supplemented or otherwise modified, the
"RECEIVABLES PURCHASE AGREEMENT");
WHEREAS, pursuant to the Receivables Purchase Agreement, RFC V
wishes to reconvey to TRS all of RFC V's right, title and interest in, to and
under the Receivables in certain designated accounts removed from the Trust by
RFC V (the "REMOVED ACCOUNTS"), whether existing at the Removal Date or
thereafter created; and
WHEREAS, TRS is willing to accept such designation and
reconveyance subject to the terms and conditions hereof.
NOW, THEREFORE, RFC V and TRS hereby agree as follows:
1. Defined Terms. All capitalized terms used herein shall have
the meanings ascribed to them in the Receivables Purchase Agreement unless
otherwise defined herein.
"Removal Date" shall mean, with respect to the Removed
Accounts, [_________].
"Removed Accounts" shall mean the Removed Accounts that are
designated hereby and listed on SCHEDULE 1 hereto.
"Selection Date" shall mean [____________].
2. Designation of Removed Accounts. RFC V delivers or causes
to be delivered herewith an Account Schedule containing a true and complete list
of the Removed Accounts. Such Account Schedule is incorporated into and made a
part of this Reassignment, shall be SCHEDULE 1 to this Reassignment and shall
supplement SCHEDULE 1 to the Receivables Purchase Agreement.
C-1
3. Conveyance of Receivables.
(a) RFC V does hereby sell, transfer, assign, set over and
otherwise convey to TRS, without recourse except as provided in the Receivables
Purchase Agreement, all of its right, title and interest, whether now owned or
hereafter acquired, in, to and under the Receivables arising in the Removed
Accounts (including Related Accounts with respect to such Removed Accounts),
existing at the Removal Date and thereafter created, all Recoveries allocable to
such Receivables, all monies due or to become due and all amounts received or
receivable with respect thereto, all Collections with respect thereto, and all
proceeds (including "proceeds" as defined in the UCC) thereof (collectively, the
"REPURCHASED ASSETS").
(b) In connection with such sale, RFC V agrees to execute and
deliver to TRS on or prior to the date this Reassignment is delivered,
applicable termination statements prepared by RFC V with respect to the
Receivables existing at the Removal Date and thereafter created from time to
time in the Removed Accounts reassigned hereby and the proceeds thereof
evidencing the release by RFC V of its interest in the Receivables in the
Removed Accounts, and meeting the requirements of applicable state law, in such
manner and such jurisdictions as are necessary to terminate such interest.
4. Representations and Warranties of RFC V. RFC V hereby
represents and warrants to TRS as of the Removal Date:
(a) Legal Valid and Binding Obligation. This Reassignment
constitutes a legal, valid and binding obligation of RFC V enforceable against
RFC V, in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect affecting the enforcement of
creditors' rights in general and except as such enforceability may be limited by
general principles of equity (whether considered in a suit at law or in equity);
and
(b) List of Removed Accounts. The list of Removed Accounts
delivered pursuant to Section 2.04 of the Receivables Purchase Agreement, as of
the Removal Date, is true and complete in all material respects.
5. Ratification of Agreement. As supplemented by this
Reassignment, the Receivables Purchase Agreement is in all respects ratified and
confirmed and the Agreement as so supplemented by this Reassignment shall be
read, taken and construed as one and the same instrument.
6. Counterparts. This Reassignment may be executed in two or
more counterparts, and by different parties on separate counterparts, each of
which shall be an original, but all of which shall constitute one and the same
instrument.
7. GOVERNING LAW. THIS REASSIGNMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
C-2
IN WITNESS WHEREOF, RFC V and TRS have caused this
Reassignment to be duly executed by their respective officers as of the day and
year first above written.
AMERICAN EXPRESS RECEIVABLES
FINANCING CORPORATION V LLC
By:
--------------------------------
Name:
Title:
AMERICAN EXPRESS TRAVEL RELATED
SERVICES COMPANY, INC.
By:
--------------------------------
Name:
Title:
C-3
Schedule 1 to
Supplemental
Conveyance
REMOVED ACCOUNTS
C-4
Schedule 1
LIST OF ACCOUNTS
I-1
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
Section 1.01. Definitions.......................................................................1
Section 1.02. Other Definitional Provisions.....................................................9
ARTICLE II
PURCHASE AND CONVEYANCE OF RECEIVABLES
Section 2.01. Purchase.........................................................................10
Section 2.02. Addition of Aggregate Addition Accounts..........................................11
Section 2.03. Addition of New Accounts.........................................................12
Section 2.04. Removal and Deletion of Accounts.................................................13
ARTICLE III
CONSIDERATION AND PAYMENT
Section 3.01. Purchase Price...................................................................15
Section 3.02. Adjustments to Purchase Price....................................................15
Section 3.03. Use of Name, Logo and Marks......................................................15
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of TRS Relating to TRS............................16
Section 4.02. Representations and Warranties of TRS Relating to the
Agreement and the Receivables....................................................17
Section 4.03. Representations and Warranties of RFC V..........................................18
ARTICLE V
COVENANTS
Section 5.01. Covenants of TRS.................................................................20
ARTICLE VI
REPURCHASE OBLIGATION
Section 6.01. Reassignment of Ineligible Receivables...........................................22
Section 6.02. Reassignment of Other Receivables................................................22
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.01. Conditions to RFC V's Obligations Regarding Initial Receivables..................23
Section 7.02. Conditions Precedent to TRS's Obligations........................................23
ARTICLE VIII
TERM AND PURCHASE TERMINATION
Section 8.01. Term.............................................................................24
Section 8.02. Purchase Termination.............................................................24
i
PAGE
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. Amendment........................................................................25
Section 9.02. Governing Law....................................................................25
Section 9.03. Notices..........................................................................25
Section 9.04. Severability of Provisions.......................................................25
Section 9.05. Assignment.......................................................................25
Section 9.06. Acknowledgement and Agreement of TRS.............................................26
Section 9.07. Further Assurances...............................................................26
Section 9.08. No Waiver; Cumulative Remedies...................................................26
Section 9.09. Counterparts.....................................................................26
Section 9.10. Binding; Third-Party Beneficiaries...............................................26
Section 9.11. Merger and Integration...........................................................26
Section 9.12. Headings ....................................................................27
Section 9.13. Schedules and Exhibits...........................................................27
Section 9.14. Survival of Representations and Warranties.......................................27
Section 9.15. Nonpetition Covenant.............................................................27
EXHIBIT A: FORM OF SUPPLEMENTAL CONVEYANCE FOR AGGREGATE ADDITION ACCOUNTS...............A-1
EXHIBIT B: FORM OF SUPPLEMENTAL CONVEYANCE FOR NEW ACCOUNTS..............................B-1
EXHIBIT C: FORM OF REASSIGNMENT OF RECEIVABLES...........................................C-1
SCHEDULE 1: LIST OF ACCOUNTS.............................................................I-1
ii