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EXHIBIT 4.4
EXECUTION COPY
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AMERICAN EXPRESS CREDIT ACCOUNT MASTER TRUST
RECEIVABLES PURCHASE AGREEMENT
between
AMERICAN EXPRESS BANK, FSB
and
AMERICAN EXPRESS RECEIVABLES FINANCING CORPORATION IV 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 BANK, FSB, a
federally-chartered savings bank (together
with its permitted successors and assigns,
"FSB"), and AMERICAN EXPRESS
RECEIVABLES FINANCING CORPORATION IV LLC, a
Delaware limited liability company
(together with its permitted successors and
assigns, "RFC IV").
W I T N E S S E T H:
WHEREAS, RFC IV desires to purchase, from time to time, certain
Receivables (hereinafter defined) existing
or arising in designated credit or
charge accounts of FSB;
WHEREAS, FSB desires to sell and assign, from time to time,
certain
Receivables to RFC IV upon the terms and
conditions hereinafter set forth;
WHEREAS, it is contemplated that the Receivables purchased
hereunder
will be transferred by RFC IV 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, FSB agrees that all representations, warranties, covenants
and
agreements made by FSB 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 FSB and RFC IV
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 FSB pursuant to Section 6.01
or Section 6.02.
"Account Agreement" shall mean, with respect to an Account, the
agreement between FSB 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 FSB 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, federal savings
banks or state banking institutions in New
York, New York, or any other State in
which the principal executive offices of
FSB 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.
"Certificateholder" shall have the meaning specified in the Pooling
and
Servicing Agreement.
"Closing Date" shall mean the close of business on April 16,
2004.
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"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 FSB,
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
IV.
"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 FSB
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 American Express Centurion Bank (in
cases that arose prior to the Closing
Date) or FSB (in cases that arise on or
after the Closing Date);
(b) is payable in United States dollars;
(c) has an Obligor who is not confirmed by American Express
Centurion
Bank (in cases that arose prior to the
Closing Date) or FSB (in cases that arise
on or after the Closing Date) 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 IV, 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
American Express Centurion Bank (in cases
that arose prior to the Closing Date)
or FSB (in cases that arise on or after the
Closing Date) 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 American
Express Centurion Bank (in cases that
arose prior to the Closing Date) or FSB (in
cases that arise on or after the
Closing Date) 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
American Express Centurion Bank (in cases
that arose prior to the Closing Date)
or FSB (in cases that arise on or after the
Closing Date) 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 FSB (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 FSB.
"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 FSB and
pursuant to an Account Agreement that
complies in all material respects with all
Requirements of Law applicable to
FSB, in either case, the failure to comply
with which would have a material
adverse effect on RFC IV;
(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 FSB 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;
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(d) as to which, at the time of the sale of such Receivable to RFC
IV,
FSB has good and marketable title thereto,
free and clear of all Liens (other
than any Lien for municipal or other local
taxes of FSB if such taxes are not
then due and payable or if FSB 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
FSB
to RFC IV of all FSB'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 IV,
has
not been waived or modified except as
permitted in accordance with the Credit
Guidelines and which waiver or modification
is reflected in FSB's computer file
of accounts;
(h) which, at the time of the sale of such Receivable to RFC IV, 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
IV,
FSB 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
IV,
FSB has not taken any action which would
impair, or omitted to take any action
the omission of which would impair, the
rights of RFC IV 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 IV'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.
"FSB" shall have
the meaning specified in the initial paragraph of this
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.
"Group" shall have the meaning specified in the Pooling and
Servicing
Agreement.
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"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
FSB and any Person, which account or
line of credit is identified in the Account
Schedule delivered to RFC IV by FSB
on the Closing Date.
"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 FSB
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
FSB 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
IV
signed by any Vice President or more senior
officer of FSB.
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"Original Pooling Agreement" shall have the meaning specified in
the
Pooling and Servicing Agreement.
"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, American
Express Receivables Financing Corporation
III LLC and RFC IV, 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
IV and the other Transferors to rate
any securities issued by the Trust.
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"Receivables" shall mean all amounts shown on FSB's records as
amounts
payable by Obligors on any Account from
time to time, including amounts payable
for Principal Receivables and Finance
Charge Receivables.
"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 FSB
(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 FSB.
"Removed Account" shall mean any Account as to which FSB 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 IV" 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 FSB is unable for any
reason to transfer Receivables to RFC IV 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.
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"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 FSB.
"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, FSB does hereby sell, transfer,
assign, set over and otherwise convey to
RFC IV (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 FSB and purchased
by RFC IV on the Closing Date.
Receivables arising after the Closing Date
in the Initial Accounts and the
related Purchased Assets shall be sold by
FSB and purchased by RFC IV 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 FSB and purchased by RFC IV
on the related Addition Date. Receivables
arising after such Addition Date in
such Additional Accounts and the related
Purchased Assets shall be sold by FSB
and purchased by RFC IV on the date such
Receivables arise.
(b) FSB 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 FSB to RFC IV, (ii) cause such
financing statements and amendments to name
FSB, as seller, and RFC IV, 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 IV as soon
as is practicable after filing.
(c) FSB 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 IV in accordance with
this Agreement and have been conveyed by
RFC IV 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
IV 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. FSB
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 FSB has taken such action as is
necessary or advisable to cause the interest
of RFC IV 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 FSB 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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(d) The parties hereto intend that the conveyance of FSB'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 FSB to RFC IV. 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 FSB shall be deemed to have
granted, and FSB does hereby grant, to RFC
IV a first priority perfected
security interest in all of FSB's right,
title and interest, whether now owned
or hereafter acquired, in, to and under the
Purchased Assets to secure the
obligations of FSB hereunder.
(e) To the extent that FSB retains any interest in the
Purchased
Assets, FSB hereby grants to the Trustee a
security interest in all of FSB'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 FSB hereunder. 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.
Section 2.02. Addition of Accounts.
(a) If (i) RFC IV is required, pursuant to Section 2.09(a) of
the
Pooling and Servicing Agreement, to
designate additional accounts to the Trust,
or (ii) RFC IV 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 IV, at its option, may give written
notice thereof to FSB; 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, FSB shall designate
sufficient Eligible Accounts as Aggregate
Addition Accounts and shall sell to
RFC IV the Purchased Assets related to such
Aggregate Addition Accounts. In
addition, at its option and with the
consent of RFC IV, FSB may designate
Eligible Accounts as Aggregate Addition
Accounts and sell to RFC IV the
Purchased Assets related to such Aggregate
Addition Accounts.
(b) At its option and with the consent of RFC IV, FSB may
designate
Eligible Accounts as New Accounts and sell
to RFC IV the Purchased Assets
related to such New Accounts. FSB or RFC
IV, 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.
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<PAGE>
(c) On the Addition Date with respect to any designation of
Additional
Accounts, such Additional Accounts shall
become Accounts, and RFC IV shall
purchase FSB'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) FSB shall have delivered to RFC IV copies of UCC
financing statements covering such Additional Accounts, if
necessary to
perfect RFC IV's interest in the Receivables arising therein and
the
related Purchased Assets;
(iii) FSB shall have delivered to RFC IV 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 FSB shall have occurred
nor
shall the sale of the Receivables arising in the Additional
Accounts
and the related Purchased Assets to RFC IV 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 IV;
(vi) FSB shall have delivered to RFC IV an Officer's
Certificate of FSB, dated the Addition Date, confirming, to the
extent
applicable and in FSB'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) FSB 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 IV and, in the case
of
Aggregate Addition Accounts, shall have delivered to RFC IV the
Account
Schedule with respect to such Aggregate Addition Accounts; and
(ix) FSB and RFC IV shall have entered into a duly executed,
written assignment, substantially in the form of Exhibit A (the
"Supplemental Conveyance").
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Section 2.03. Removal and Deletion of Accounts.
(a) If an Account becomes a Removed Account, then FSB shall
stop
selling to RFC IV 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 IV
of additional Principal Receivables arising
in such Removed Account, Principal
Receivables sold to RFC IV 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 IV
available for transfer by RFC IV to the
Trustee pursuant to
