EXHIBIT 5.2
FIRST AMENDMENT TO
POOLING AND SERVICING AGREEMENT
This FIRST AMENDMENT TO THE POOLING AND SERVICING AGREEMENT,
dated as of March 30, 2001 (this "Amendment"), is among American Express
Centurion Bank (the "Bank"), American Express Receivables Financing Corporation
II ("RFC II"), American Express Travel Related Services Company, Inc. (the
"Servicer") and The Bank of New York (the "Trustee"). This Amendment amends the
Pooling and Servicing Agreement, dated as of May 16, 1996 (the "Pooling and
Servicing Agreement" and, together with this Amendment, the "Amended Pooling and
Servicing Agreement").
RECITALS
1. Pursuant to Section 13.01(a) of the Pooling and Servicing
Agreement, the Bank and RFC II have delivered to the Trustee an Officer's
Certificate, dated the date of this Amendment, stating that the Bank and RFC II
reasonably believe that this Amendment will not have an Adverse Effect.
2. The Parties to the Pooling and Servicing Agreement have
satisfied all conditions precedent contained in the Pooling and Servicing
Agreement to entering into this Amendment. All capitalized terms not otherwise
defined herein shall have the meanings assigned to such terms in the Pooling and
Servicing Agreement.
3. Now, therefore, in consideration of the mutual agreements
herein contained, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, each party hereto agrees as follows:
AMENDMENTS
SECTION 1. Amendment of Section 1.01. Section 1.01 of the
Pooling and Servicing Agreement shall be and hereby is amended by the addition
of the following definition, which shall read in its entirety as follows:
"Permitted Activities" means the primary activities of the
Trust, which are:
(a) holding Receivables transferred from the Transferors
and the other assets of the Trust, including passive
derivative financial instruments that pertain to
beneficial interests issued or sold to parties other
than the Transferors, its Affiliates or its agents;
(b) issuing Certificates and other interests in the Trust
Assets;
(c) receiving Collections and making payments on such
Certificates and interests in accordance with the terms
of this Agreement and any Supplement;
(d) engaging in other activities that are necessary or
incidental to accomplish these limited purposes, which
activities cannot be contrary to the status of the
Trust as a qualified special purpose entity under
existing accounting literature.
SECTION 2. Amendment of Section 2.10. Section 2.10 of the
Pooling and Servicing Agreement shall be and hereby is amended by the addition
of the following paragraph immediately after clause (v) of such Section, which
shall be read in its entirety as follows:
In addition to the terms and conditions contained in clauses
(i)-(v) above, the Transferors' right to require the reassignment to
them or their designees of all the Trust's right, title and interest
in, to and under the Receivables in Removed Accounts and Removed
Participation Interests, shall be subject to the following
restrictions:
(a) Except for Removed Accounts described in clause (b) below,
there shall be no more than one Removal Date in any Monthly Period and
the Accounts to be designated as Removed Accounts shall be selected at
random by the Transferors; and
(b) The Transferors may designate Removed Accounts as provided
in and subject to the terms and conditions contained in this Section
2.10 without being subject to the restrictions set forth in clause (a)
above if the Removed Accounts are Accounts (i) originated or acquired
under a specific affinity agreement, private label agreement, merchant
agreement, co-branding agreement or other program which is co-owned,
operated or promoted, provided that such agreement has terminated in
accordance with the terms therein or (ii) being removed due to other
circumstances caused by requirements of agreements in which the right
to such Removed Accounts or control thereof is determined by a party or
parties to such agreements other than the Transferors, any Affiliate of
the Transferors or any agent of the Transferors.
SECTION 3. Amendment of Section 9.01. Section 9.01(a) of the
Pooling and Servicing Agreement shall be and hereby is amended by deleting the
fourth and fifth sentences thereof in their entirety, and inserted in their
place shall be the following:
Within 15 days of the Appointment Day, the Trustee shall (i) publish a
notice in an Authorized Newspaper that an Insolvency Event or violation
has occurred and that the Trustee intends to sell, dispose of or
otherwise liquidate the Receivables and (ii) send written notice to the
Investor Certificateholders describing the provisions of this Section
9.01 and requesting instructions from such Holders. Unless within 60
days from the day notice pursuant to clause (i) above is first
published the Trustee shall have received written instructions from
Holders of Investor Certificates evidencing more than 50% of the
Invested Amount of each Series issued and outstanding (or, if any such
Series has two or more Classes, each Class) to the effect that such
Certificateholders disapprove of the liquidation of the Receivables and
wish to continue having Principal Receivables transferred to the Trust
as before such Insolvency Event or violation, the Trustee shall use its
best efforts to sell, dispose of or otherwise liquidate the Receivables
by the solicitation of competitive bids and on terms equivalent to the
best purchase offer as determined by the Trustee.
SECTION 4. Amendment of Section 10.01. Section 10.01 of the
Pooling and Servicing Agreement shall be and hereby is amended by deleting the
last proviso in the first paragraph of such Section in its entirety, and
inserted in its place shall be the following:
; provided, however, if within 60 days of receipt of a Termination
Notice the Trustee does not receive any bids from Eligible Servicers in
accordance with subsection 10.02(c) to act as a Successor Servicer and
receives Officers' Certificates of the Transferors to the effect that
the Servicer cannot in good faith cure the Servicer Default which gave
rise to the Termination Notice, the Trustee shall, except in the case
of a Servicer Default set forth in subsection 10.01(d), grant the
Transferors the right of first refusal to purchase the
Certificateholders' Interest on the Distribution Date in the next
calendar month.
SECTION 5. Amendment of Section 12.04. Subsection 12.04 of the
Pooling and Servicing Agreement shall be and hereby is amended by adding
immediately before the first proviso in subsection 12.04(a) the following, which
shall read in its entirety as follows:
if the deposit referred to in subsection 12.04(c)(i) below is funded
solely from Collections of Receivables or, if funded from any other
sources, only if Defeasance is available to such Series in accordance
with its related Supplement
SECTION 6. Amendment of Section 13.01. (a) Section 13.01(a) of
the Pooling and Servicing Agreement shall be and hereby is amended by adding at
the end of the second sentence thereof the following, which shall read in its
entirety as follows:
; provided further that such action shall not effect a change in the
Permitted Activities of the Trust except for those changes necessary
for compliance with accounting requirements or tax requirements or
required to cure any ambiguity or correct or supplement any provision
contained in the Agreement or any Supplement which may be defective or
inconsistent with any provisions thereof
(b) Section 13.01(b) of the Pooling and Servicing Agreement
shall be and hereby is amended by inserting after the word "Trustee" is first
used the following, which shall read in its entirety as follows:
(A) in the case of a change in the Permitted Activities of the Trust
which is not materially adverse to Holders of Investor Certificates,
with the consent of Holders of Investor Certificates evidencing not
less than 50% of the aggregated unpaid principal amount of the Investor
Certificates of each outstanding Series affected by such change, unless
such change is necessary for compliance with accounting requirements or
tax requirements or required to cure any ambiguity or correct or
supplement any provision contained in the Agreement or any Supplement
which may be defective or inconsistent with any provisions thereof and
(B) in all other cases
SECTION 7. Miscellaneous. The amendments provided for by this
Amendment shall be effective upon receipt by the Trustee of the following:
(a) Notification in writing from each of Moody's and Standard
& Poor's to the effect that this Amendment will not result in a reduction or
withdrawal of the rating of any outstanding Series or Class to which it is a
Rating Agency.
(b) Officers' Certificates of the Transferors to the effect
that the Transferors reasonably believe that this Amendment will not have an
Adverse Effect.
(c) Counterparts of this Amendment, duly executed by the
parties hereto.
SECTION 8. Pooling and Servicing Agreement in Full Force and
Effect as Amended. The Pooling and Servicing Agreement is hereby amended by
providing that all references therein to the "Pooling and Servicing Agreement,"
"this Agreement," "hereby," "hereof" and "herein" shall be deemed from and after
the effective date of this Amendment to be a reference to the Amended Pooling
and Servicing Agreement. Except as expressly amended hereby, all of the
representations, warranties, terms, covenants and conditions of the Pooling and
Servicing Agreement shall remain unamended and shall continue to be, and shall
remain, in full force and effect in accordance with their terms and except as
expressly provided herein, this Amendment 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 Pooling and Servicing Agreement.
SECTION 9. Counterparts. This Amendment 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 10. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS
CONFLICTS OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Bank, RFC II, the Servicer and the
Trustee have caused this Amendment to be duly executed and delivered by their
respective duly authorized officers as of the day and year first written above.
AMERICAN EXPRESS CENTURION BANK
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Assistant Treasurer
AMERICAN EXPRESS RECEIVABLES
FINANCING CORPORATION II
By: /s/ Xxxxxx X. Xxxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxxx
Title: President
AMERICAN EXPRESS TRAVEL RELATED
SERVICES COMPANY, INC.
By: /s/ Xxx X. Xxxxxxxxx
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Name: Xxx X. Xxxxxxxxx
Title: Senior Vice President and
Treasurer
THE BANK OF NEW YORK
By: /s/ Xxxxxxxxx Xxxxxxxx
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Name: Xxxxxxxxx Xxxxxxxx
Title: Assistant Vice President