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EXHIBIT 4.3
EXECUTION COPY
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AMERICAN EXPRESS CREDIT ACCOUNT MASTER TRUST
RECEIVABLES PURCHASE AGREEMENT
between
AMERICAN EXPRESS CENTURION BANK
and
AMERICAN EXPRESS RECEIVABLES FINANCING CORPORATION III LLC
Dated as of April 16, 2004
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RECEIVABLES PURCHASE AGREEMENT, dated as of April 16, 2004, by
and
between AMERICAN EXPRESS CENTURION BANK, a
Utah industrial loan company
(together with its permitted successors and
assigns, "Centurion"), and AMERICAN
EXPRESS RECEIVABLES FINANCING CORPORATION
III LLC, a Delaware limited liability
company (together with its permitted
successors and assigns, "RFC III").
W I T N E S S E T H:
WHEREAS, RFC III desires to purchase, from time to time,
certain
Receivables (hereinafter defined) existing
or arising in designated credit or
charge accounts of Centurion;
WHEREAS, Centurion desires to sell and assign, from time to
time,
certain Receivables to RFC III upon the
terms and conditions hereinafter set
forth;
WHEREAS, it is contemplated that the Receivables purchased
hereunder
will be transferred by RFC III to the
Trustee under the terms of the Pooling and
Servicing Agreement and that the Trust
created under the Pooling and Servicing
Agreement will issue beneficial interests
in the Trust (each capitalized term as
hereinafter defined); and
WHEREAS, Centurion agrees that all representations, warranties,
covenants and agreements made by Centurion
herein with respect to the Accounts
and the Receivables shall also be for the
benefit of the Trust, the Trustee and
the Certificateholders (each capitalized
term as hereinafter defined).
NOW, THEREFORE, it is hereby agreed by and between Centurion and
RFC
III 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 (a) each Initial Account, (b) each
Additional
Account (but only from and after the
Addition Date with respect thereto), (c)
each Related Account, and (d) each
Transferred Account. The term "Account" shall
not include Deleted Accounts and any
Account all of the Receivables in which are
reassigned to Centurion pursuant to Section
6.01 or Section 6.02.
"Account Agreement" shall mean, with respect to an Account, the
agreement between Centurion and the Obligor
governing the terms and conditions
of such Account, as such agreement may be
amended, modified or otherwise changed
from time to time.
"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 other than the Initial Accounts,
the aggregate amount outstanding in such
Account (a) on the Distribution Date
immediately succeeding the related Monthly
Period (for any Account Schedule
relating to New Accounts) and (b) on the
Addition Cut-Off Date (for any Account
Schedule relating to Aggregate Addition
Accounts).
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"Addition Cut-Off Date" shall mean (a) with respect to New
Accounts,
the later of the dates on which such New
Accounts are originated or designated,
and (b) with respect to Aggregate Addition
Accounts, the date specified as such
in the notice delivered with respect
thereto.
"Addition Date" shall mean (a) with respect to New Accounts, the
first
Distribution Date following the calendar
month in which falls the later of the
dates on which such New Accounts are
originated or designated, 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)(i).
"Addition Selection Date" shall mean, for each Aggregate
Addition
Account, the date specified as such in the
notice delivered with respect thereto
pursuant to Subsection 2.02(a).
"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.
"Aggregate Addition Account" means each credit or charge account
or
line of credit (if, with respect to the
line of credit, the full receivable
balance is not due upon receipt of a
monthly billing statement (excluding the
billing statement with respect to the final
payment of such balance) and the
line of credit contains an indicator as
described in Subsection 2.01(c)),
established pursuant to an Account
Agreement between Centurion and any Person,
which account or line of credit is
designated pursuant to Subsection 2.02(a) to
be included as an Account and is identified
on an Account Schedule delivered
pursuant to Sections 2.01 and 2.02.
"Agreement" shall mean this Receivables Purchase Agreement, as the
same
may be amended and supplemented from time
to time.
"Average Rate" shall have the meaning specified in the Pooling
and
Servicing Agreement.
"Business Day" shall mean any day other than (a) a Saturday or
Sunday
or (b) any other day on which national
banking associations or state banking
institutions in New York, New York, or any
other State in which the principal
executive offices of Centurion are located,
are authorized or obligated by law,
executive order or governmental decree to
be closed.
"Cash Advance Fees" shall mean cash advance transaction fees and
cash
advance late fees, if any, as specified in
any Account Agreement applicable to
an Account.
"Centurion" shall have the meaning specified in the initial
paragraph
of this Agreement.
"Certificateholder" shall have the meaning specified in the Pooling
and
Servicing Agreement.
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"Closing Date" shall mean the close of business on April 16,
2004.
"Collection Account" shall have the meaning specified in the
Pooling
and Servicing Agreement.
"Collections" shall mean all payments (including Recoveries and
Insurance Proceeds) 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).
"Credit Guidelines" shall mean the policies and procedures of
Centurion, as such policies and procedures
may be amended from time to time, (a)
relating to the operation of its credit or
charge business, as the case may be,
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 credit or charge
privileges to customers, and (b) relating
to the maintenance of accounts and
collection of related receivables.
"Date of Processing" shall mean, with respect to any transaction
or
receipt of Collections, the Business Day
after such transaction is first output,
in written form under the Servicer's
customary and usual practices, from the
Servicer'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 Credit Guidelines and the
Servicer's customary and usual servicing
procedures for servicing accounts
comparable to the Accounts. 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.
"Deleted Account" shall mean any Removed Account as to which there
are
no Receivables arising therein owned by RFC
III.
"Determination Date" shall have the meaning specified in the
Pooling
and Servicing Agreement.
"Distribution
Date" shall have the meaning specified in the Pooling and
Servicing Agreement.
"Eligible Account" shall mean a credit or charge account or line
of
credit (if, with respect to the line of
credit, the full receivable balance is
not due upon receipt of a monthly billing
statement (excluding the billing
statement with respect to the final payment
of such balance) and the line of
credit contains an indicator as described
in Subsection 2.01(c)), owned by
Centurion which (i) in the case of the
Initial Accounts, as of the selection
date related to its date of designation as
an "Account" under the Original
Pooling Agreement or (ii) in the case of
the Additional Accounts, as of the
applicable Addition Selection Date, in each
case, meets the following
requirements:
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(a) is a credit or charge account or line of credit (if, with
respect
to the line of credit, the full receivable
balance is not due upon receipt of a
monthly billing statement (excluding the
billing statement with respect to the
final payment of such balance) and the line
of credit contains an indicator that
it has been sold as described in Subsection
2.01(c)) in existence and maintained
by Centurion;
(b) is payable in United States dollars;
(c) has an Obligor who is not confirmed by Centurion in its
computer
files as being involved in a voluntary or
involuntary bankruptcy proceeding;
(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 Canada or a United States
military address; provided, however,
that, with the consent of RFC III, as of
any date of determination, up to 3% of
the Accounts (calculated by number of
Accounts) may have Obligors who have
provided, as their billing addresses,
addresses located outside of such
jurisdictions;
(e) if such account is a credit card or 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 to any other party;
(g) does not have any receivables that have been sold or pledged
by
Centurion to any other party (except
pursuant to the Original Pooling
Agreement); and
(h) does not have any receivables that are Defaulted Receivables
or
that have been identified by Centurion as
having been incurred as a result of
the fraudulent use of a related credit or
charge card.
Notwithstanding the above requirements,
Eligible Accounts may include accounts
(I) the receivables of which have been
written off or (II) with respect to which
Centurion has confirmed the related Obligor
is bankrupt, in each case as of the
selection dates related to their date of
designation as an "Account" under the
Original Pooling Agreement with respect to
Initial Accounts and as of the
related Addition Selection Date with
respect to Additional Accounts; provided,
however, that (1) the balance of all
receivables included in such accounts is
reflected on the books and records of
Centurion (and is treated for purposes of
this Agreement) as "zero," (b) borrowing
and charging privileges with respect to
all such accounts have been canceled in
accordance with the Credit Guidelines
applicable thereto and will not be
reinstated, and (c) any recoveries, insurance
proceeds or other amounts realized on such
accounts are retained by Centurion.
"Eligible Receivable" shall mean each Receivable:
(a) which has arisen in an Eligible Account;
(b) which was created in compliance in all material respects with
all
Requirements of Law applicable to Centurion
and pursuant to an Account Agreement
that complies in all material respects with
all Requirements of Law applicable
to Centurion, in either case, the failure
to comply with which would have a
material adverse effect on RFC III;
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(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
Centurion 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, at the time of the sale of such Receivable to RFC
III,
Centurion has good and marketable title
thereto, free and clear of all Liens
(other than any Lien for municipal or other
local taxes of Centurion if such
taxes are not then due and payable or if
Centurion is then contesting the
validity thereof in good faith by
appropriate proceedings and has set aside on
its books adequate reserves with respect
thereto);
(e) which has been the subject of a valid sale and assignment
from
Centurion to RFC III of all Centurion's
right, title and interest therein
(including any proceeds thereof);
(f) which is the legal, valid and binding payment obligation of
the
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 III,
has
not been waived or modified except as
permitted in accordance with the Credit
Guidelines and which waiver or modification
is reflected in Centurion's computer
file of accounts;
(h) which, at the time of the sale of such Receivable to RFC III,
is
not subject to any right of rescission,
setoff, counterclaim or any other
defense (including defenses arising out of
violations of usury laws) of the
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
III,
Centurion 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
III,
Centurion has not taken any action which
would impair, or omitted to take any
action the omission of which would impair,
the rights of RFC III 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 state
where the filing of a financing statement
is then required to perfect RFC III's
interest in such Receivable and the
proceeds thereof.
"Finance Charge Receivables" shall mean Receivables created in
respect
of Periodic Rate Finance Charges, Cash
Advance Fees, annual membership fees and
annual service charges, Late Fees,
Overlimit Fees, and all other incidental and
miscellaneous fees and charges.
"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.
"Group" shall have the meaning specified in the Pooling and
Servicing
Agreement.
"Initial Account" shall mean each credit or charge account or line
of
credit (if, with respect to the line of
credit, the full receivable balance is
not due upon receipt of a monthly billing
statement (excluding the billing
statement with respect to the final payment
of such balance) and the line of
credit contains an indicator as described
in Subsection 2.01(c)) established
pursuant to an Account Agreement between
Centurion and any Person, which account
or line of credit is identified in the
Account Schedule delivered to RFC III by
Centurion on the Closing Date.
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"Initial Cut-Off Date" shall mean the close of business on April
16,
2004.
"Insolvency Event" shall have the meaning specified in Section
8.02.
"Insurance Proceeds" shall mean any amounts received pursuant to
the
payment of benefits under any credit life
insurance policies, credit disability
insurance policies or unemployment
insurance policies covering any Obligor with
respect to Receivables under such Obligor's
Account.
"Issuer Rate Fees" shall mean all issuer rate fees payable to
Centurion
in connection with cardholder charges for
goods or services with respect to the
Receivables, the amount of which shall be
calculated as provided in Subsection
5.01(f).
"Late Fees" shall have the meaning specified in the Account
Agreement
applicable to each Account for late fees or
similar terms.
"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 lien created in favor of
the Trustee under the Original Pooling
Agreement shall not be deemed to
constitute a Lien.
"Monthly Period" shall mean, with respect to each Distribution
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 Distribution Date
shall occur.
"New Account" shall mean each credit or charge account or line
of
credit (if, with respect to the line of
credit, the full receivable balance is
not due upon receipt of a monthly billing
statement (excluding the billing
statement with respect to the final payment
of such balance) and the line of
credit contains an indicator as described
in Subsection 2.01(c)) established
pursuant to an Account Agreement between
Centurion and any Person, which account
or line of credit is designated pursuant to
Subsection 2.02(b) to be included as
an Account and is identified on an Account
Schedule delivered pursuant to
Sections 2.01 and 2.02.
"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
III
signed by any Vice President or more senior
officer of Centurion.
"Original Pooling Agreement" shall have the meaning specified in
the
Pooling and Servicing Agreement.
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"Overlimit Fees" shall have the meaning specified in the
Account
Agreement applicable to each Account for
overlimit fees or similar terms if such
fees are provided for with respect to such
Account.
"Pay-Out Event" shall have the meaning specified in the Pooling
and
Servicing Agreement.
"Periodic Rate Finance Charges" shall have the meaning specified in
the
Account Agreement applicable to each
Account for finance charges (due to
periodic rate) or any similar term.
"Person" shall mean any person or entity, including any
individual,
corporation, limited liability company,
partnership, limited liability
partnership, limited partnership, joint
venture, association, joint-stock
company, trust, unincorporated
organization, Governmental Authority, or other
entity of any nature.
"Pooling and Servicing Agreement" shall mean the Pooling and
Servicing
Agreement, dated as of May 16, 1996, as
amended and restated as of April 16,
2004, among American Express Receivables
Financing Corporation II, RFC III and
American Express Receivables Financing
Corporation IV LLC, as Transferors,
American Express Travel Related Services
Company, Inc., as Servicer, and The
Bank of New York, as Trustee, as amended
and supplemented from time to time.
"Portfolio Yield" shall have the meaning specified in the Pooling
and
Servicing Agreement.
"Principal Receivables" shall mean all Receivables other than
Finance
Charge Receivables. In calculating the
aggregate amount of Principal Receivables
on any day, the amount of Principal
Receivables shall be reduced by the
aggregate amount of credit balances in the
Accounts on such day.
"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).
"Rating Agency" shall mean the nationally-recognized statistical
rating
agency or agencies, if any, selected by RFC
III and the other Transferors to
rate any securities issued by the
Trust.
"Receivables" shall mean all amounts shown on Centurion's records
as
amounts payable by Obligors on any Account
from time to time, including amounts
payable for Principal Receivables and
Finance Charge Receivables.
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"Recoveries" shall mean all amounts received with respect to
Receivables which have previously been
charged-off.
"Reinvestment Event" shall have the meaning specified in the
Pooling
and Servicing Agreement.
"Related Account" shall mean an Account with respect to which a
new
account number has been issued by Centurion
(a)(i) resulting from a lost or
stolen credit or charge card relating to
such Account (if such Account is a
credit or charge card account) or (ii)
under circumstances not requiring the
standard application and credit evaluation
procedures under the Credit
Guidelines applicable to such Account, and
(b) that can be traced or identified
by reference to or by way of the Account
Schedule and the computer or other
records of Centurion.
"Removed Account" shall mean any Account as to which Centurion
has
received notice from the Servicer that such
Account is a "Removed Account" as
defined in the Pooling and Servicing
Agreement.
"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 III" shall have the meaning specified in the initial paragraph
of
this Agreement.
"Servicer" shall mean the entity acting as Servicer under the
Pooling
and Servicing Agreement.
"Stop Date" shall have the meaning specified in Subsection
2.03(a).
"Supplemental Conveyance" shall have the meaning specified in
Subsection 2.02(b)(v).
"Transfer Date" shall have the meaning specified in the Pooling
and
Servicing Agreement.
"Transfer Restriction Event" shall mean that Centurion is unable
for
any reason to transfer Receivables to RFC
III 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.
"Transferors" shall mean the entities acting as Transferors under
the
Pooling and Servicing Agreement.
"Transferred Account" shall mean each credit or charge account or
line
of credit (if, with respect to the line of
credit, the full receivable balance
is not due upon receipt of a monthly
billing statement (excluding the billing
statement with respect to the final payment
of such balance) and the line of
credit contains an indicator as described
in Subsection 2.01(c)) into which an
Account shall be transferred provided that
(a) such transfer was made in
accordance with the Credit Guidelines and
(b) such account or line of credit can
be traced or identified by reference to or
by way of the Account Schedule and
the computer or other records of
Centurion.
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"Trust" shall mean the American Express Credit Account Master
Trust,
heretofore created and continued by the
Pooling and Servicing Agreement.
"Trustee" shall mean the Trustee under the Pooling and
Servicing
Agreement.
"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, Centurion does hereby sell,
transfer, assign, set over and otherwise
convey to RFC III (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 close of
business on the Initial Cut-Off Date, in
the case of Receivables arising in the
Initial Accounts (including Related
Accounts and Transferred Accounts with
respect to such Initial Accounts), and at
the close of business on the related
Addition Cut-Off Date, in the case of
Receivables arising in the Additional
Accounts (including Related Accounts and
Transferred Accounts with respect to
such Additional Accounts), and in each case
thereafter created from time to time
in such Accounts, all Insurance Proceeds,
Issuer Rate Fees and 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 "Purchased Assets"). The
Receivables existing in the Initial
Accounts at the close of business on 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
Centurion and purchased by RFC III on the
Closing Date. Receivables arising after the
Closing Date in the Initial Accounts
and the related Purchased Assets shall be
sold by Centurion and purchased by RFC
III on the date such Receivables arise. The
Receivables existing in Additional
Accounts at the close of business on 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 Centurion and
purchased by RFC III on the related
Addition Date. Receivables arising after
such Addition Date in such Additional
Accounts and the related Purchased Assets
shall be sold by Centurion and purchased by
RFC III on the date such Receivables
arise.
(b) Centurion 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 Centurion to RFC III,
(ii) cause such financing statements
and amendments to name Centurion, as
seller, and RFC III, 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 III as soon as
is practicable after filing.
(c) Centurion 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 III in
accordance with this Agreement and have
been conveyed by RFC III to the Trustee
pursuant to the Pooling 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 III an Account Schedule
(provided, however, that such Account
Schedule shall be provided in respect of
New Accounts on the Distribution Date
immediately succeeding the related Monthly
Period during which their respective
Addition Dates occur) containing a true and
complete list of all such Accounts.
Centurion 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 Centurion has taken such action as is
necessary or advisable to cause the
interest of RFC III 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 Centurion on each Addition
Date (or with respect to New Accounts, on
the Distribution Date immediately
succeeding the related Monthly Period
during which their respective Addition
Dates occur), but not later than on a
semi-annual basis to include any new
Related Accounts and Transferred
Accounts.
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<PAGE>
(d) The parties hereto intend that the conveyance of Centurion'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 Centurion to RFC
III. 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 Centurion
shall be deemed to have granted, and
Centurion does hereby grant, to RFC III a
first priority perfected security interest
in all of Centurion's right, title
and interest, whether now owned or
hereafter acquired, in, to and under the
Purchased Assets to secure the obligations
of Centurion hereunder.
(e) To the extent that Centurion retains any interest in the
Purchased
Assets, Centurion hereby grants to the
Trustee a security interest in all of
Centurion'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 Centurion hereunder and
under the Pooling and Servicing
Agreement. With respect to such security
interest and such collateral, the
Trustee shall have all of the rights that
it has under the Pooling and Servicing
Agreement. The Trustee shall also have all
of the rights of a secured creditor
under the UCC.
(f) Centurion hereby acknowledges and agrees to perform its
obligations
under Section 2.01 of the Pooling and
Servicing Agreement.
Section 2.02. Addition of Accounts.
(a) If (i) RFC III is required, pursuant to Section 2.09(a) of
the
Pooling and Servicing Agreement, to
designate additional accounts to the Trust,
or (ii) RFC III elects, pursuant to Section
2.09(b) of the Pooling and Servicing
Agreement, to designate additional accounts
to the Trust, then in either case
RFC III, at its option, may give written
notice thereof to Centurion; 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, Centurion shall designate
sufficient Eligible Accounts as Aggregate
Addition Accounts and shall sell to
RFC III the Purchased Assets related to
such Aggregate Addition Accounts. In
addition, at its option and with the
consent of RFC III, Centurion may designate
Eligible Accounts as Aggregate Addition
Accounts and sell to RFC III the
Purchased Assets related to such Aggregate
Addition Accounts.
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<PAGE>
(b) At its option and with the consent of RFC III, Centurion
may
designate Eligible Accounts as New Accounts
and sell to RFC III the Purchased
Assets related to such New Accounts.
Centurion or RFC III, each at its option
and by written notice to the other party at
least ten (10) days in advance, may
elect at any time to terminate the
inclusion of new accounts which would
otherwise be New Accounts as of any
Business Day, to suspend any such inclusion
as of any Business Day, or to resume any
such inclusion as of any Business Day.
(c) On the Addition Date with respect to any designation of
Additional
Accounts, such Additional Accounts shall
become Accounts, and RFC III shall
purchase Centurion's right, title and
interest in, to and under the Receivables
in such Additional Accounts and the related
Purchased Assets as provided in
Section 2.01, subject to the satisfaction
of the following conditions on such
Addition Date:
(i) as of the Addition Selection Date, such Additional Accounts
shall be
Eligible Accounts;
(ii) Centurion shall have delivered to RFC III copies of UCC
financing
statements covering such Additional Accounts, if necessary to
perfect
RFC III's interest in the Receivables arising therein and the
related
Purchased Assets;
(iii) Centurion shall have delivered to RFC III all Collections
with
respect to
such Additional Accounts since the Addition Cut-Off Date;
(iv) as of each of the Addition Cut-Off Date and the Addition
Date,
no
Insolvency Event with respect to Centurion shall have occurred
nor
shall the
sale of the Receivables arising in the Additional Accounts and
the
related Purchased Assets to RFC III have been made in contemplation
of
the
occurrence thereof;
(v) in the case of Aggregate Addition Accounts, such addition
will
not have a
material adverse effect on RFC III;
(vi) Centurion shall have delivered to RFC III an Officer's
Certificate of Centurion, dated the Addition Date, confirming, to
the
extent
applicable and in Centurion's reasonable belief, the items set
forth in
clauses (i) through (v) above;
(vii) in the case of New Accounts, such addition will not cause
a
Pay-Out
Event or a Reinvestment Event under the Pooling and Servicing
Agreement;
(viii) Centurion shall have indicated in its computer files
that
Receivables created in connection with such Additional Accounts and
the
related
Purchased Assets have been sold to RFC III and, in the case of
Aggregate
Addition Accounts, shall have delivered to RFC III the Account
Schedule
with respect to such Aggregate Addition Accounts; and
(ix) Centurion and RFC III shall have entered into a duly
executed,
written
assignment, substantially in the form of Exhibit A (the
"Supplemental Conveyance").
Section 2.03. Removal and Deletion of Accounts.
(a) If an Account becomes a Removed Account, then Centurion shall
stop
selling to RFC III Principal 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 III
of additional Principal Receivables arising
in such Removed Account, Principal
Receivables sold to RFC III prior to the
Stop Date, Collections in respect of
such Principal Receivables, Finance Charge
Receivables whenever created that
accrue in respect of such Principal
Receivables, Collections in respect of such
Finance Charge Receivables, and Issuer Rate
Fees allocable to the foregoing
shall continue to be property of RFC III
available for transfer by RFC III to
the Trustee pursuant to the Pooling and
Servicing Agreement. To the extent that
it is not clear to Centurion whether
collections relate to a Receivable that was
sold to RFC III or to a receivable that
Centurion did not sell to RFC III,
Centurion 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.
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<PAGE>
(b) On and after the Stop Date for a Removed Account, Centurion
may
mark its books and records to indicate that
such Account is a Removed Account,
but Centurion shall not (i) alter the
indication referenced in clause (i) of
Subsection 2.01(c) with respect to such
Removed Account unless and until such
Account becomes a Deleted Account or
Centurion has taken such action as is
necessary or advisable to cause the
interest of RFC III in the Pu
