EXHIBIT 3.1
EXECUTION COPY
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
AMERICAN EXPRESS RECEIVABLES FINANCING CORPORATION III LLC
This Amended and Restated Limited Liability Company Agreement (together with the
schedules attached hereto, this "Agreement") of American Express Receivables
Financing Corporation III LLC (the "Company"), is entered into by American
Express Centurion Bank, a Utah-chartered industrial loan corporation (the
"Bank"), as the sole equity member (the "Member"), and Ruth K. Lavelle of
Puglisi & Associates, 850 Library Avenue, Suite 204, Newark, Delaware 19711, as
the Special Member (as defined in Schedule A hereto). Capitalized terms used and
not otherwise defined herein have the meanings set forth on Schedule A hereto.
WHEREAS, the Member has heretofore formed the Company pursuant to the
Delaware Limited Liability Company Act, 6 Del. C. ss.18-101, et seq., as amended
from time to time (the "Act"), by filing the Certificate of Formation with the
office of the Secretary of State of the State of Delaware on March 11, 2004, and
entering into a Limited Liability Company Agreement of the Company, dated and
effective as of March 11, 2004 (the "Original Limited Liability Company
Agreement"); and
WHEREAS, the Member desires to continue the Company as a limited
liability company under the Act and to amend and restate the Original Limited
Liability Company Agreement in its entirety.
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
Section 1. Name.
The name of the limited liability company heretofore formed and
continued hereby is American Express Receivables Financing Corporation III LLC.
Section 2. Principal Business Office.
The principal business office of the Company shall be located at 4315
South 2700 West, Salt Lake City, Utah 84184 or such other location as may
hereafter be determined by the Member.
Section 3. Registered Office.
The address of the registered office of the Company in the State of
Delaware is c/o RL&F Service Corp., One Rodney Square, 10th Floor, Tenth and
King Streets, Wilmington, New Castle County, Delaware 19801.
Section 4. Registered Agent.
The name and address of the registered agent of the Company for service
of process on the Company in the State of Delaware is RL&F Service Corp., One
Rodney Square, 10th Floor, Tenth and King Streets, Wilmington, New Castle
County, Delaware 19801.
Section 5. Member.
(a) The mailing address of the Member is set forth on Schedule B
attached hereto. The Member was admitted to the Company as a member of the
Company upon its execution of the Original Limited Liability Company Agreement
and shall continue as a member of the Company upon its execution of a
counterpart signature page to this Agreement.
(b) Subject to Section 9(i), the Member may act by written consent.
(c) Upon the occurrence of any event that causes the Member to cease to
be a member of the Company (other than (i) upon an assignment by the Member of
all of its limited liability company interest in the Company and the admission
of the transferee pursuant to Sections 21 and 23, or (ii) the resignation of the
Member and the admission of an additional member of the Company pursuant to
Sections 22 and 23), the person acting as Independent Director pursuant to
Section 10 shall, without any action of any Person and simultaneously with the
Member ceasing to be a member of the Company, automatically be admitted to the
Company as a Special Member and shall continue the Company without dissolution.
No Special Member may resign from the Company or transfer its rights as Special
Member unless (i) a successor Special Member has been admitted to the Company as
Special Member by executing a counterpart to this Agreement, and (ii) such
successor has also accepted its appointment as Independent Director pursuant to
Section 10; provided, however, the Special Member shall automatically cease to
be a member of the Company upon the admission to the Company of a substitute
Member. The Special Member shall be a member of the Company that has no interest
in the profits, losses and capital of the Company and has no right to receive
any distributions of Company assets. Pursuant to Section 18-301 of the Act, a
Special Member shall not be required to make any capital contributions to the
Company and shall not receive a limited liability company interest in the
Company. The Special Member, in its capacity as Special Member, may not bind the
Company. Except as required by any mandatory provision of the Act, the Special
Member, in its capacity as Special Member, shall have no right to vote on,
approve or otherwise consent to any action by, or matter relating to, the
Company, including, without limitation, the merger, consolidation or conversion
of the Company. In order to implement the admission to the Company of the
Special Member, the person acting as Independent Director pursuant to Section 10
shall execute a counterpart to this Agreement. Prior to its admission to the
Company as Special Member, the person acting as Independent Director pursuant to
Section 10 shall not be a member of the Company.
Section 6. Certificates.
Lisa Lambert is hereby designated as an "authorized person" within the
meaning of the Act, and has executed, delivered and filed the Certificate of
Formation of the Company with the Secretary of State of the State of Delaware.
Upon the filing of the Certificate of Formation with the Secretary of State of
the State of Delaware, her powers as an "authorized person" ceased, and the
Member thereupon became the designated "authorized person" and shall continue as
the designated "authorized person" within the meaning of the Act. The Member or
an Officer shall execute, deliver and file any other certificates (and any
amendments and/or restatements thereof) necessary for the Company to qualify to
do business in New York, Utah and in any other jurisdiction in which the Company
may wish to conduct business.
The existence of the Company as a separate legal entity shall continue
until cancellation of the Certificate of Formation as provided in the Act.
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Section 7. Purposes. The purpose to be conducted or promoted by the Company is
to engage in the following activities:
(a)
(i) to execute and deliver and to perform its obligations
under a Receivables Purchase Agreement with the Bank
(the Receivables Purchase Agreement, as from time to
time amended, supplemented or otherwise modified, the
"Purchase Agreement"), to purchase or otherwise acquire
assets from the Bank, to execute and deliver and to
perform its obligations under any amendments and/or
supplements, including any supplemental conveyances
relating to the Purchase Agreement, and to engage in any
activities necessary, appropriate or convenient in
connection with the rights and obligations of the
Company under the Purchase Agreement and in connection
with the acquisition of assets from the Bank and to
authorize, execute, deliver and perform any other
agreement, notice or document, in connection with,
relating to or contemplated by the Purchase Agreement or
the acquisition of assets from the Bank;
(ii) to purchase, acquire, own, hold, sell, dispose of,
endorse, transfer, assign, pledge and finance the
Purchased Assets (as defined in the Purchase Agreement)
including, without limitation, to grant a security
interest in the Purchased Assets;
(iii) to engage in any activities necessary to hold, receive,
exchange, sell, transfer, otherwise dispose of and
otherwise deal in and exercise all rights, powers,
privileges, and all other incidents of ownership or
possession with respect to, all of the Company's
property, including without limitation, the Purchased
Assets and any property or interest which may be
acquired by the Company as a result of any distribution
in respect of the Purchased Assets and any property
received by the Company as a contribution from the
Member;
(iv) to execute, deliver, incur debt and other obligations
and perform its obligations under a Revolving Credit
Agreement to be entered into by and between the Bank and
the Company (as such may be amended, supplemented or
otherwise modified from time to time, the "Credit
Agreement"), to execute and deliver, and to perform its
obligations under, any amendments or supplements
relating to the Credit Agreement, and to engage in any
activities necessary, appropriate or convenient, and to
authorize, execute, deliver and perform any other
agreement, notice or document, in connection with,
relating to or contemplated by the Credit Agreement;
(v) to be substituted for the Bank and assume the rights and
obligations of the Bank as Seller or Transferor and to
become a Seller or Transferor and undertake all of the
rights and obligations of a Seller or a Transferor under
the terms of an Amended and Restated Pooling and
Servicing Agreement by and among the Company, American
Express Receivables Financing Corporation II 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 (the "Trustee") with respect to the
American Express Credit Account Master Trust (the
"Trust") (as such may be amended, supplemented or
otherwise modified from time to time, the "Pooling and
Servicing Agreement") and under the terms of each Series
Supplement thereto and to assume all of the rights and
obligations of the Seller or Transferor under and with
respect to other documents and agreements (including,
without limitation, series supplements and credit
enhancement documents) previously entered into by the
Bank or its predecessors, as Seller or Transferor,
related to the Trust and Trust Obligations issued by the
Trust;
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(vi) to be substituted for the Bank as a Transferor and to
assume all of the rights and obligations of a Transferor
under existing Transfer and Administration Agreements
each originally entered into by and among the Bank, as a
Transferor, American Express Receivables Financing
Corporation II, as a Transferor, American Express Travel
Related Services Company, Inc., as Administrator, and a
separate Delaware statutory trust for each of which
Wilmington Trust Company acts as owner trustee (each
such agreement as it may be amended, supplemented or
otherwise modified from time to time, a "Transfer
Agreement");
(vii) to be substituted for the Bank as an Owner and a
Transferor and to assume all of the rights and
obligations of an Owner and a Transferor under existing
Trust Agreements each of which relates to a separate
Delaware statutory trust and each of which was
originally entered into by and among the Bank, as a
Transferor, American Express Receivables Financing
Corporation II, as a Transferor, and Wilmington Trust
Company, as owner trustee (each such agreement as it may
be amended, supplemented or otherwise modified from time
to time, a "Trust Agreement");
(viii) to execute and deliver, and to perform its obligations
under, the Pooling and Servicing Agreement, to sell or
otherwise transfer all or any of the Purchased Assets to
the Trustee in connection therewith, to execute Trust
Obligations issued under the Pooling and Servicing
Agreement and any Series Supplements, to execute and
deliver, and to perform its obligations under, any
amendments, supplements or assignments, reassignments or
reconveyances of receivables and other assets related to
the Pooling and Servicing Agreement, to provide for the
issuance of additional series of Trust Obligations under
the Pooling and Servicing Agreement and to execute,
deliver and perform its obligations under each
additional Series Supplement and other documents related
to the issuance of Trust Obligations and to engage in
any activities necessary, appropriate or convenient, and
to authorize, execute, deliver and perform any other
agreement, notice or document, in connection with,
relating to the Trust or Trust Obligations or relating
to or contemplated by the Pooling and Servicing
Agreement and the Series Supplements thereto;
(ix) to execute and deliver, and to perform its obligations
under each document or agreement to which it becomes a
party by substitution for the Bank, as Seller, as
Transferor or as Owner and to execute and deliver, and
to perform its obligations under any amendments or
supplements related to the Transfer Agreements and Trust
Agreements, and to engage in any activities necessary,
appropriate or convenient, and to authorize, execute,
deliver and perform any other agreement, notice or
document, in connection with, relating to or
contemplated by the Transfer Agreements and the Trust
Agreements;
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(x) to acquire, hold, enjoy, sell or otherwise transfer and
grant rights in all of the rights and privileges of any
certificate, interest or other indicia of beneficial
ownership issued by the Trust or any other Person to the
Company pursuant to any trust agreement, purchase
agreement, pooling and servicing agreement, indenture or
other document and transfer such certificate, interest
or other indicia of beneficial ownership interest to
another Person;
(xi) to engage in any activities necessary, appropriate or
convenient, and to authorize, execute and deliver any
other agreement, notice or document (including the Basic
Documents), in connection with or relating to the
activities described above, including the filing of any
notices, applications, financing statements, and other
documents necessary, advisable or convenient to comply
with any applicable laws, statutes, rules and
regulation;
(xii) to acquire, own, hold, sell, transfer, service, convey,
safekeep, dispose of, pledge, assign, borrow money
against, finance, refinance or otherwise deal with,
publicly or privately issued asset backed securities and
whether with unrelated third parties or with affiliated
entities; and
(xiii) to engage in any lawful act or activity and to exercise
any powers permitted to limited liability companies
organized under the laws of the State of Delaware that
are related or incidental to and necessary, convenient
or advisable for the accomplishment of the above
mentioned purposes (including the entering into of
interest rate or basis swap, cap, floor or collar
agreements, currency exchange agreements or similar
hedging transactions and referral, management, servicing
and administration agreements).
(b) The Company and the Member, or any Director or Officer (including
any Vice President) on behalf of the Company, may enter into and perform the
Basic Documents and all documents, agreements, instruments, certificates,
assignments, reassignments, amendments, supplements or financing statements
contemplated thereby or related thereto, all without any further act, vote or
approval of the Member or any Director or Officer or other Person
notwithstanding any other provision of this Agreement, the Act or applicable
law, rule or regulation. The foregoing authorization shall not be deemed a
restriction on the powers of the Member or any Director or Officer to enter into
other agreements on behalf of the Company.
Section 8. Powers.
Subject to Section 9(i), the Company, and the Board of Directors and
the Officers of the Company on behalf of the Company, (i) shall have and
exercise all powers necessary, convenient or incidental to accomplish its
purposes as set forth in Section 7 and (ii) shall have and exercise all of the
powers and rights conferred upon limited liability companies formed pursuant to
the Act.
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Section 9. Management.
(a) Board of Directors. Subject to Section 9(i), the business and
affairs of the Company shall be managed by or under the direction of a Board of
two or more Directors designated by the Member. Subject to Section 10, the total
number of Directors on the Board shall be three, one of whom shall be an
Independent Director pursuant to Section 10, unless the total number of
Directors is otherwise fixed at a different number by an amendment hereto or a
resolution signed by the Member. Each Director shall hold office until removed
by a written instrument delivered by the Member or until such Director dies or
is unable to serve. In the event of any such vacancy, the Member may fill the
vacancy. Each Director shall execute and deliver the Management Agreement.
Directors need not be a member of the Company. The current Directors heretofore
designated by the Member are listed on Schedule D hereto. Subject to the terms
of this Agreement, the Member hereby agrees that only the Board of Directors of
the Company, Officers and authorized agents of the Company shall have the
authority to bind the Company. Subject to the terms of this Agreement, no
Member, by reason of its status as such, shall have any authority to act for or
bind the Company but shall have only the right to vote on and approve the
actions herein specified to be voted on or approved by any Member.
(b) Powers. Subject to Section 9(i), the Board of Directors shall have
the power to do any and all acts necessary, convenient or incidental to or for
the furtherance of the purposes described herein, including all powers,
statutory or otherwise. Subject to Sections 7 and 9, the Board of Directors has
the authority to bind the Company.
(c) Meeting of the Board of Directors. The Board of Directors of the
Company may hold meetings, both regular and special, within or outside the State
of Delaware. Regular meetings of the Board may be held without notice at such
time and at such place as shall from time to time be determined by the Board.
Special meetings of the Board may be called by the President or Secretary on not
less than one day's notice (which notice may be waived) to each Director by
telephone, facsimile, mail, telegram or any other means of communication, and
special meetings shall be called by the President or Secretary in like manner
and with like notice (which notice may be waived) upon the written request of
any one or more of the Directors.
(d) Quorum: Acts of the Board. At all meetings of the Board, a majority
of the Directors shall constitute a quorum for the transaction of business and,
except as otherwise provided in any other provision of this Agreement, the act
of a majority of the Directors present at any meeting at which there is a quorum
shall be the act of the Board. If a quorum shall not be present at any meeting
of the Board, the Directors present at such meeting may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present. Any action required or permitted to be taken at any
meeting of the Board or of any committee thereof may be taken without a meeting
if a majority of the members of the Board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee, as the case may be.
(e) Electronic Communications. Members of the Board, or any committee
designated by the Board, may participate in meetings of the Board, or any
committee, by means of telephone conference or similar communications equipment
that allows all persons participating in the meeting to hear each other, and
such participation in a meeting shall constitute presence in person at the
meeting. If all the participants are participating by telephone conference or
similar communications equipment, the meeting shall be deemed to be held at the
principal place of business of the Company.
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(f) Committees of Directors.
(i) The Board may, by resolution passed by a majority of the
whole Board, designate one or more committees, each
committee to consist of one or more of the Directors of
the Company. The Board may designate one or more
Directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting
of the committee.
(ii) In the absence or disqualification of a member of a
committee, the member or members thereof present at any
meeting and not disqualified from voting, whether or not
such members constitute a quorum, may unanimously
appoint another member of the Board to act at the
meeting in the place of any such absent or disqualified
member.
(iii) Any such committee, to the extent provided in the
resolution of the Board, and subject to, in all cases,
Sections 9(i) and 10, shall have and may exercise all
the powers and authority of the Board in the management
of the business and affairs of the Company. Such
committee or committees shall have such name or names as
may be determined from time to time by resolution
adopted by the Board. Each committee shall keep regular
minutes of its meetings and report the same to the Board
when required.
(g) Compensation of Directors; Expenses. The Board shall have the
authority to fix the compensation of Directors. The Directors may be paid their
expenses, if any, of attendance at meetings of the Board, which may be a fixed
sum for attendance at each meeting of the Board or a stated salary as Director.
No such payment shall preclude any Director from serving the Company in any
other capacity and receiving compensation therefor. Members of special or
standing committees may be allowed like compensation for attending committee
meetings.
(h) Directors as Agents. To the extent of their powers set forth in
this Agreement and subject to Section 9(i), the Directors are agents of the
Company for the purpose of the Company's business, and the actions of the
Directors taken in accordance with such powers set forth in this Agreement shall
bind the Company. Notwithstanding the last sentence of Section 18-402 of the
Act, except as provided in this Agreement or in a resolution of the Directors, a
Director may not bind the Company.
(i) Limitations on the Company's Activities.
(i) This Section 9(i) is being adopted in order to comply
with certain provisions required in order to qualify the
Company as a "special purpose" entity.
(ii) The Member shall not, so long as any Trust Obligation is
outstanding, amend, alter, change or repeal the
definition of "Independent Director" or Sections 5(c),
7, 8, 9, 10, 16, 20, 21, 22, 23, 24, 25, 26, 29, 30 or
31 or Schedule A of this Agreement without the unanimous
written consent of the Board (including the Independent
Director). Subject to this Section 9(i), the Member
reserves the right to amend, alter, change or repeal any
provisions contained in this Agreement in accordance
with Section 31.
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(iii) Notwithstanding any other provision of this Agreement
and any provision of law that otherwise so empowers the
Company, the Member, the Board, any Officer or any other
Person, so long as any Trust Obligation is outstanding,
none of the Member, the Board or any Officer or any
other Person shall be authorized or empowered, nor shall
they permit the Company, without the prior unanimous
written consent of the Member and the Board (including
the Independent Director), to take any Material Action;
provided, however, that, so long as any Trust Obligation
is outstanding, the Member and the Board may not vote
on, or authorize the taking of, any Material Action,
unless there is at least one Independent Director then
serving in such capacity.
(iv) The Board and the Member shall cause the Company to do
or cause to be done all things necessary to preserve and
keep in full force and effect its existence, rights
(charter and statutory) and franchises; provided,
however, that the Company shall not be required to
preserve any such right or franchise if: (1) the Board
shall determine that the preservation thereof is no
longer desirable for the conduct of its business and
that the loss thereof is not disadvantageous in any
material respect to the Company and (2) the Rating
Agency Condition is satisfied. The Board also shall
cause the Company to:
(A) maintain its own separate office, books and
records and bank accounts;
(B) at all times hold itself out to the public and all
other Persons as a legal entity separate from the
Member and any other Person;
(C) have a Board of Directors separate from that of
the Member and any other Person;
(D) file its own tax returns, if any, as may be
required under applicable law, to the extent (1)
not part of a consolidated group filing a
consolidated return or returns or (2) not treated
as a division for tax purposes of another
taxpayer, and pay any taxes so required to be paid
under applicable law;
(E) except as contemplated by the Basic Documents, not
commingle its assets with assets of any other
Person;
(F) conduct its business in its own name and strictly
comply with all organizational formalities to
maintain its separate existence;
(G) maintain separate financial statements; and, if
consolidated with financial statements of
Affiliates, include footnotes to the effect that
the Company is a separate legal entity and that
its assets are not (other than as provided in the
Basic Documents) available to satisfy the claims
of Affiliates;
(H) pay its own liabilities only out of its own funds;
(I) maintain an arm's length relationship with its
Affiliates and the Member;
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(J) pay the salaries of its own employees, if any;
(K) other than as provided in the Basic Documents, not
hold out its credit or assets as being available
to satisfy the obligations of others;
(L) allocate fairly and reasonably any overhead for
shared office space;
(M) use separate stationery, invoices and checks;
(N) other than as expressly permitted under the Basic
Documents, not pledge its assets for the benefit
of any other Person;
(O) correct any known misunderstanding regarding its
separate identity;
(P) maintain adequate capital in light of its
contemplated business purpose, transactions and
liabilities;
(Q) cause its Board of Directors to meet at least
annually or act pursuant to written consent and
keep minutes of such meetings and actions and
observe all other Delaware limited liability
company formalities;
(R) not acquire any securities of the Member; and
(S) cause the Directors, Officers, agents and other
representatives of the Company to act at all times
with respect to the Company consistently and in
furtherance of the foregoing and in the best
interests of the Company.
Failure of the Company, or the Member or
Board on behalf of the Company, to comply
with any of the foregoing covenants or any
other covenants contained in this Agreement
shall not affect the status of the Company
as a separate legal entity or the limited
liability of the Member or the Directors.
(v) So long as any Trust Obligation is outstanding, the
Board shall not cause or permit the Company to:
(A) other than as expressly permitted under the Basic
Documents, guarantee any obligation of any Person,
including any Affiliate;
(B) engage, directly or indirectly, in any business
other than the actions required or permitted to be
performed under Section 7, the Basic Documents or
this Section 9(i);
(C) incur, create or assume any indebtedness other
than as expressly permitted under the Basic
Documents or liabilities in the ordinary course of
business relating to the ownership or management
of the Purchased Assets and in amounts normal and
reasonable under the circumstances;
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(D) make or permit to remain outstanding any loan or
advance to, or own or acquire any stock or
securities of, any Person, except that the Company
may invest in those investments permitted under
the Basic Documents and may make any advance
required or expressly permitted to be made
pursuant to any provisions of the Basic Documents
and permit the same to remain outstanding in
accordance with such provisions;
(E) to the fullest extent permitted by law, engage in
any dissolution, liquidation, consolidation,
merger, asset sale or transfer of ownership
interests other than such activities as are
expressly permitted pursuant to any provision of
the Basic Documents; or
(F) form, acquire or hold any subsidiary (whether
corporate, partnership, limited liability company
or other).
Section 10. Independent Director.
As long as any Trust Obligation is outstanding, the Member shall cause
the Company at all times to have at least one Independent Director who will be
appointed by the Member. To the fullest extent permitted by law, including
Section 18-1101(c) of the Act, the Independent Director shall consider only the
interests of the Company, including its respective creditors, in acting or
otherwise voting on the matters referred to in Section 9(i)(iii). The Member may
remove, with or without cause, the Independent Director at any time without the
consent of any person, but no resignation or removal of an Independent Director,
and no appointment of a successor Independent Director, shall be effective until
such successor Independent Director shall (i) have accepted his or her
appointment as an Independent Director by a written instrument, which may be a
counterpart signature page to the Management Agreement and (ii) have executed a
counterpart to this Agreement as required by Section 5(c). In the event of a
vacancy in the position of Independent Director, the Member shall, as soon as
practicable, appoint a successor Independent Director. All right, power and
authority of the Independent Director shall be limited to the extent necessary
to exercise those rights and perform those duties specifically set forth in this
Agreement. Except as provided in the second sentence of this Section 10, in
exercising their rights and performing their duties under this Agreement, the
Independent Director shall have a fiduciary duty of loyalty and care similar to
that of a director of a business corporation organized under the General
Corporation Law of the State of Delaware. No Independent Director shall at any
time serve as trustee in bankruptcy for any Affiliate of the Company.
Section 11. Officers.
(a) Officers. The Officers of the Company shall be chosen by the Board
and shall consist of at least a President, a Secretary and a Treasurer. The
Board of Directors may also choose one or more Vice Presidents, Assistant
Secretaries and Assistant Treasurers. Any number of offices may be held by the
same person. The Board shall choose a President, a Secretary and a Treasurer.
The Board may appoint such other Officers and agents as it shall deem necessary
or advisable who shall hold their offices for such terms and shall exercise such
powers and perform such duties as shall be determined from time to time by the
Board. The salaries of all Officers and agents of the Company shall be fixed by
or in the manner prescribed by the Board. The Officers of the Company shall hold
office until their successors are chosen and qualified. Any Officer elected or
appointed by the Board may be removed at any time, with or without cause, by the
affirmative vote of a majority of the Board. Any vacancy occurring in any office
of the Company shall be filled by the Board. The current Officers of the Company
are listed on Schedule E hereto.
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(b) President. The President shall be the chief executive officer of
the Company, shall preside at all meetings of the Board, shall be responsible
for the general and active management of the business of the Company and shall
see that all orders and resolutions of the Board are carried into effect. The
President or any other Officer authorized by the President or the Board shall
execute all bonds, notes, mortgages and other contracts (including, without
limitation, the Basic Documents), except: (i) where required or permitted by law
or this Agreement to be otherwise signed and executed, including Section 7(b);
(ii) where signing and execution thereof shall be expressly delegated by the
Board to some other Officer or agent of the Company; and (iii) as otherwise
permitted in Section 11(c). The President hereby authorizes the Vice President
to execute the Basic Documents.
(c) Vice President. In the absence of the President or in the event of
the President's inability to act, the Vice President, if any (or in the event
there be more than one Vice President, the Vice Presidents in the order
designated by the Directors, or in the absence of any designation, then in the
order of their election), shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the restrictions upon
the President. The Vice Presidents, if any, shall perform such other duties and
have such other powers as the Board may from time to time prescribe.
(d) Secretary and Assistant Secretary. The Secretary shall be
responsible for filing legal documents and maintaining records for the Company.
The Secretary shall attend all meetings of the Board and record all the
proceedings of the meetings of the Company and of the Board in a book to be kept
for that purpose and shall perform like duties for the standing committees when
required. The Secretary shall give, or shall cause to be given, notice of all
meetings of the Member, if any, and special meetings of the Board, and shall
perform such other duties as may be prescribed by the Board or the President,
under whose supervision the Secretary shall serve. The Assistant Secretary, or
if there be more than one, the Assistant Secretaries in the order determined by
the Board (or if there be no such determination, then in order of their
election), shall, in the absence of the Secretary or in the event of the
Secretary's inability to act, perform the duties and exercise the powers of the
Secretary and shall perform such other duties and have such other powers as the
Board may from time to time prescribe.
(e) Treasurer and Assistant Treasurer. The Treasurer shall have the
custody of the Company funds and securities and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Company and
shall deposit all moneys and other valuable effects in the name and to the
credit of the Company in such depositories as may be designated by the Board.
The Treasurer shall disburse the funds of the Company as may be ordered by the
Board, taking proper vouchers for such disbursements, and shall render to the
President and to the Board, at its regular meetings or when the Board so
requires, an account of all of the Treasurer's transactions and of the financial
condition of the Company. The Assistant Treasurer, or if there shall be more
than one, the Assistant Treasurers in the order determined by the Board (or if
there be no such determination, then in the order of their election), shall, in
the absence of the Treasurer or in the event of the Treasurer's inability to
act, perform the duties and exercise the powers of the Treasurer and shall
perform such other duties and have such other powers as the Board may from time
to time prescribe.
(f) Officers as Agents. The Officers, to the extent of their powers set
forth in this Agreement or otherwise vested in them by action of the Board not
inconsistent with this Agreement, are agents of the Company for the purpose of
the Company's business and, subject to Section 9(i), the actions of the Officers
taken in accordance with such powers shall bind the Company.
-11-
(g) Duties of Board and Officers. Except to the extent otherwise
provided herein, each Director and Officer shall have a fiduciary duty of
loyalty and care similar to that of directors and officers of business
corporations organized under the General Corporation Law of the State of
Delaware.
Section 12. Limited Liability.
Except as otherwise expressly provided by the Act, the debts,
obligations and liabilities of the Company, whether arising in contract, tort or
otherwise, shall be the debts, obligations and liabilities solely of the
Company, and neither the Member nor the Special Member nor any Director shall be
obligated personally for any such debt, obligation or liability of the Company
solely by reason of being a Member, Special Member or Director of the Company.
Section 13. Capital Contributions.
The Member has contributed to the Company property of an agreed value
as listed on Schedule B attached hereto. In accordance with Section 5(c), the
Special Member shall not be required to make any capital contributions to the
Company.
Section 14. Additional Contributions.
The Member is not required to make any additional capital contribution
to the Company. However, the Member may make additional capital contributions to
the Company at any time upon the written consent of such Member. To the extent
that the Member makes an additional capital contribution to the Company, the
Member shall revise Schedule B of this Agreement. The provisions of this
Agreement, including this Section 14, are intended to benefit the Member and the
Special Member and, to the fullest extent permitted by law, shall not be
construed as conferring any benefit upon any creditor of the Company (and no
such creditor of the Company shall be a third-party beneficiary of this
Agreement) and the Member and the Special Member shall not have any duty or
obligation to any creditor of the Company to make any contribution to the
Company or to issue any call for capital pursuant to this Agreement.
Section 15. Allocation of Profits and Losses.
The Company's profits and losses shall be allocated to the Member.
Section 16. Distributions.
Distributions shall be made to the Member at the times and in the
aggregate amounts determined by the Board. Notwithstanding any provision to the
contrary contained in this Agreement, the Company shall not be required to make
a distribution to the Member on account of its interest in the Company if such
distribution would violate the Act or any other applicable law or any Basic
Document.
Section 17. Books and Records.
The Board shall keep or cause to be kept complete and accurate books of
account and records with respect to the Company's business. The books of the
Company shall at all times be maintained by the Board. The Member and its duly
authorized representatives shall have the right to examine the Company books,
records and documents during normal business hours. The Company, and the Board
on behalf of the Company, shall not have the right to keep confidential from the
Member any information that the Board would otherwise be permitted to keep
confidential from the Member pursuant to Section 18-305(c) of the Act. The
Company's books of account shall be kept using the method of accounting
determined by the Member. The Company's independent auditor, if any, shall be an
independent public accounting firm selected by the Member.
-12-
Section 18. Reports.
(a) Upon reasonable demand by the Member, within 60 days after the end
of each fiscal quarter, the Board shall cause to be prepared an unaudited report
setting forth as of the end of such fiscal quarter:
(i) unless such quarter is the last fiscal quarter, a balance
sheet of the Company; and
(ii) unless such quarter is the last fiscal quarter, an income
statement of the Company for such fiscal quarter.
(b) Upon reasonable demand by the Member, the Board shall use diligent
efforts to cause to be prepared and mailed to the Member, within 90 days after
the end of each fiscal year, an audited or unaudited report setting forth as of
the end of such fiscal year:
(i) a balance sheet of the Company;
(ii) an income statement of the Company for such fiscal year; and
(iii) a statement of the Member's capital account.
(c) Upon reasonable demand by the Member, the Board shall, after the
end of each fiscal year, use reasonable efforts to cause the Company's
independent accountants, if any, to prepare and transmit to the Member as
promptly as possible any such tax information as may be reasonably necessary to
enable the Member to prepare its federal, state and local income tax returns
relating to such fiscal year.
Section 19. Other Business.
Notwithstanding any duty otherwise existing at law or in equity, the
Member, the Special Member and any Affiliate of the Member or the Special Member
may engage in or possess an interest in other business ventures (unconnected
with the Company) of every kind and description, independently or with others,
and the Company shall not have any rights in or to such independent ventures or
the income or profits therefrom by virtue of this Agreement.
Section 20. Exculpation and Indemnification.
(a) Neither the Member nor the Special Member nor any Officer,
Director, employee or agent of the Company and no employee, representative,
agent or Affiliate of the Member or the Special Member (collectively, the
"Covered Persons") shall, to the fullest extent permitted by law, be liable to
the Company or any other Person that is a party to or is otherwise bound by this
Agreement for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Covered Person in good faith on behalf of
the Company and in a manner reasonably believed to be within the scope of the
authority conferred on such Covered Person by this Agreement, except that a
Covered Person shall be liable for any such loss, damage or claim incurred by
reason of such Covered Person's knowing violation of law or willful misconduct.
-13-
(b) To the fullest extent permitted by applicable law, a Covered Person
shall be entitled to indemnification from the Company for any loss, damage or
claim incurred by such Covered Person by reason of any act or omission performed
or omitted by such Covered Person in good faith on behalf of the Company and in
a manner reasonably believed to be within the scope of the authority conferred
on such Covered Person by this Agreement, except that no Covered Person shall be
entitled to be indemnified in respect of any loss, damage or claim incurred by
such Covered Person by reason of such Covered Person's gross negligence or
willful misconduct with respect to such acts or omissions; provided, however,
that any indemnity under this Section 20 by the Company shall be provided out of
and to the extent of Company assets only, and the Member and the Special Member
shall not have personal liability on account thereof; and provided further, that
so long as any Trust Obligation is outstanding, no indemnity payment from funds
of the Company (as distinct from funds from other sources, such as insurance) of
any indemnity under this Section 20 shall be payable from amounts allocable to
any other Person pursuant to the Basic Documents.
(c) To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by a Covered Person defending any claim, demand,
action, suit or proceeding shall, from time to time, be advanced by the Company
prior to the final disposition of such claim, demand, action, suit or proceeding
upon receipt by the Company of an undertaking by or on behalf of the Covered
Person to repay such amount if it shall be determined that the Covered Person is
not entitled to be indemnified as authorized in this Section 20.
(d) A Covered Person shall be fully protected in relying in good faith
upon the records of the Company and upon such information, opinions, reports or
statements presented to the Company by any Person as to matters the Covered
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Company, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, or any other facts pertinent to the
existence and amount of assets from which distributions to the Member might
properly be paid.
(e) To the extent that, at law or in equity, a Covered Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Company or to any other Covered Person that is a party to or is otherwise bound
by this Agreement, such Covered Person acting under this Agreement shall not be
liable to the Company or to any such other Covered Person for its good faith
reliance on the provisions of this Agreement or any approval or authorization
granted by the Company or any other Covered Person. The provisions of this
Agreement, to the extent that they restrict the duties and liabilities of a
Covered Person otherwise existing at law or in equity, are agreed by the Member
and the Special Member to replace such other duties and liabilities of such
Covered Person.
(f) So long as any Trust Obligation is outstanding, no expense of the
Company shall be payable from amounts allocable to any other Person pursuant to
the Basic Documents.
(g) The foregoing provisions of this Section 20 shall survive any
termination of this Agreement.
Section 21. Assignments.
The Member may assign in whole or in part its limited liability company
interest in the Company. Subject to Section 23, if the Member transfers all of
its limited liability company interest in the Company pursuant to this Section
21, the transferee shall be admitted to the Company as a member of the Company
upon its execution of an instrument signifying its agreement to be bound by the
terms and conditions of this Agreement, which instrument may be a counterpart
signature page to this Agreement. Such admission shall be deemed effective
immediately prior to the transfer and, immediately following such admission, the
transferor Member shall cease to be a member of the Company. Notwithstanding
anything in this Agreement to the contrary, any successor to the Member by
merger or consolidation in compliance with the Basic Documents shall, without
further act, be the Member hereunder, and such merger or consolidation shall not
constitute an assignment for purposes of this Agreement and the Company shall
continue without dissolution.
-14-
Section 22. Resignation.
So long as any Trust Obligation is outstanding, the Member may not
resign, except as permitted under the Basic Documents and if the Rating Agency
Condition is satisfied. If the Member is permitted to resign pursuant to this
Section 22, an additional member of the Company shall be admitted to the
Company, subject to Section 23, upon its execution of an instrument signifying
its agreement to be bound by the terms and conditions of this Agreement, which
instrument may be a counterpart signature page to this Agreement. Such admission
shall be deemed effective immediately prior to the resignation and, immediately
following such admission, the resigning Member shall cease to be a member of the
Company.
Section 23. Admission of Additional Members.
One or more additional members of the Company may be admitted to the
Company with the written consent of the Member; provided, however, that,
notwithstanding the foregoing, so long as any Trust Obligation remains
outstanding, no additional Member may be admitted to the Company pursuant to
Section 21, 22 or 23 unless the Rating Agency Condition is satisfied; provided
further that while any Trust Obligation remains outstanding, any assignment
(including any pledge, participation, hypothecation or any other transfer) of a
limited liability company interest in the Company and any admission of a Member
pursuant to this Section 23 may be effected only upon delivery of a Tax Opinion
(as defined in the Pooling and Servicing Agreement) to the Trustee with respect
to such assignment or admission, as applicable.
Section 24. Dissolution.
(a) The Company shall be dissolved, and its affairs shall be wound up
upon the first to occur of the following: (i) the termination of the legal
existence of the last remaining member of the Company or the occurrence of any
other event which terminates the continued membership of the last remaining
member of the Company in the Company unless the Company is continued without
dissolution in a manner permitted by this Agreement or the Act or (ii) the entry
of a decree of judicial dissolution under Section 18-802 of the Act. Upon the
occurrence of any event that causes the last remaining member of the Company to
cease to be a member of the Company or that causes the Member to cease to be a
member of the Company (other than (i) upon an assignment by the Member of all
its limited liability company interest in the Company and the admission of the
transferee pursuant to Sections 21 and 23, or (ii) the resignation of the Member
and the admission of an additional member of the Company pursuant to Sections 22
and 23), to the fullest extent permitted by law, the personal representative of
such member is hereby authorized to, and shall, within 90 days after the
occurrence of the event that terminated the continued membership of such member
in the Company, agree in writing (i) to continue the Company and (ii) to the
admission of the personal representative or its nominee or designee, as the case
may be, as a substitute member of the Company, effective as of the occurrence of
the event that terminated the continued membership of the last remaining member
of the Company or the Member in the Company.
-15-
(b) Notwithstanding any other provision of this Agreement, the
Bankruptcy of the Member or Special Member shall not cause the Member or Special
Member, respectively, to cease to be a member of the Company and upon the
occurrence of such an event, the Company shall continue without dissolution.
(c) Notwithstanding any other provision of this Agreement, each of the
Member and the Special Member waives any right it might have to agree in writing
to dissolve the Company upon the Bankruptcy of the Member or a Special Member,
or the occurrence of an event that causes the Member or the Special Member to
cease to be a member of the Company.
(d) In the event of dissolution, the Company shall conduct only such
activities as are necessary to wind up its affairs (including the sale of the
assets of the Company in an orderly manner), and the assets of the Company shall
be applied in the manner, and in the order of priority, set forth in Section
18-804 of the Act.
(e) The Company shall terminate when (i) all of the assets of the
Company, after payment of or due provision for all debts, liabilities and
obligations of the Company shall have been distributed to the Member in the
manner provided for in this Agreement and (ii) the Certificate of Formation
shall have been canceled in the manner required by the Act.
Section 25. Waiver of Partition; Nature of Interest.
Except as otherwise expressly provided in this Agreement, to the
fullest extent permitted by law, each of the Member and the Special Member
hereby irrevocably waives any right or power that such Person might have to
cause the Company or any of its assets to be partitioned, to cause the
appointment of a receiver for all or any portion of the assets of the Company,
to compel any sale of all or any portion of the assets of the Company pursuant
to any applicable law or to file a complaint or to institute any proceeding at
law or in equity to cause the dissolution, liquidation, winding up or
termination of the Company. The Member shall not have any interest in any
specific assets of the Company, and the Member shall not have the status of a
creditor with respect to any distribution pursuant to Section 16 hereof. The
interest of the Member in the Company is personal property.
Section 26. Benefits of Agreement; No Third-Party Rights.
None of the provisions of this Agreement shall (with the exception of
the Trustee under the Basic Documents while the Trust Obligations remain
outstanding) be for the benefit of or enforceable by any creditor of the Company
or by any creditor of the Member or the Special Member. Nothing in this
Agreement shall be deemed to create any right in any Person (other than Covered
Persons) not a party hereto, and this Agreement shall not be construed in any
respect to be a contract in whole or in part for the benefit of any third Person
(except as provided in Section 29).
Section 27. Severability of Provisions.
Each provision of this Agreement shall be considered severable and if
for any reason any provision or provisions herein are determined to be invalid,
unenforceable or illegal under any existing or future law, such invalidity,
unenforceability or illegality shall not impair the operation of or affect those
portions of this Agreement which are valid, enforceable and legal.
-16-
Section 28. Entire Agreement.
This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof.
Section 29. Binding Agreement.
Notwithstanding any other provision of this Agreement, the Member
agrees that this Agreement, including, without limitation, Sections 7, 8, 9, 10,
20, 21, 22, 23, 24, 26, 29 and 31, constitutes a legal, valid and binding
agreement of the Member, and is enforceable against the Member by the
Independent Director, in accordance with its terms. In addition, the Independent
Director shall be an intended beneficiary of this Agreement.
Section 30. Governing Law.
This Agreement shall be governed by and construed under the laws of the
State of Delaware (without regard to conflict of laws principles), all rights
and remedies being governed by said laws.
Section 31. Amendments.
Subject to Section 9(i), this Agreement may not be modified, altered,
supplemented or amended except pursuant to a written agreement executed and
delivered by the Member. Notwithstanding anything to the contrary in this
Agreement, so long as any Trust Obligation is outstanding, this Agreement may
not be modified, altered, supplemented or amended unless the Rating Agency
Condition is satisfied except: (i) to cure any ambiguity or (ii) to convert or
supplement any provision in a manner consistent with the intent of this
Agreement and the other Basic Documents.
Section 32. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original of this Agreement and all of which together
shall constitute one and the same instrument.
Section 33. Notices.
Any notices required to be delivered hereunder shall be in writing and
personally delivered, mailed or sent by telecopy, electronic mail or other
similar form of rapid transmission, and shall be deemed to have been duly given
upon receipt (a) in the case of the Company, to the Company at its address in
Section 2, (b) in the case of the Member, to the Member at its address as listed
on Schedule B attached hereto and (c) in the case of either of the foregoing, at
such other address as may be designated by written notice to the other party.
-17-
IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, have duly executed this Amended and Restated Limited Liability Company
Agreement as of the 16th day of April, 2004.
MEMBER:
AMERICAN EXPRESS CENTURION BANK
By: /s/ L. Craig Downs
----------------------------------
Name: L. Craig Downs
Title: President & Chief Operating
Officer
SPECIAL MEMBER/INDEPENDENT DIRECTOR:
/s/ Ruth K. Lavelle
-------------------------
Name: Ruth K. Lavelle
-18-
SCHEDULE A
Definitions
A. Definitions
When used in this Agreement, the following terms not otherwise defined
herein have the following meanings:
"Act" has the meaning set forth in the preamble to this Agreement.
"Administrative Services and Premises Agreement" shall mean the
administrative services and premises agreement, expected to be dated as of April
16 2004, by and among American Express Travel Related Services Company, Inc.,
American Express Bank, FSB, American Express Receivables Financing Corporation
IV LLC and the Company, as the same may be amended, supplemented or otherwise
modified from time to time.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly Controlling or Controlled by or under direct or indirect
common Control with such Person.
"Agreement" means this Amended and Restated Limited Liability Company
Agreement of the Company, together with the schedules attached hereto, as
amended, restated or supplemented or otherwise modified from time to time.
"Bankruptcy" means, with respect to any Person, if such Person (i)
makes an assignment for the benefit of creditors, (ii) files a voluntary
petition in bankruptcy, (iii) is adjudged bankrupt or insolvent, or has entered
against it an order for relief, in any bankruptcy or insolvency proceedings,
(iv) files a petition or answer seeking for itself any reorganization,
arrangement, composition, readjustment, liquidation or similar relief under any
statute, law or regulation, (v) files an answer or other pleading admitting or
failing to contest the material allegations of a petition filed against it in
any proceeding of this nature, (vi) seeks, consents to or acquiesces in the
appointment of a trustee, receiver or liquidator of the Person or of all or any
substantial part of its properties, (vii) if 120 days after the commencement of
any proceeding against the Person seeking reorganization, arrangement,
composition, readjustment, liquidation or similar relief under any statute, law
or regulation, the proceeding has not been dismissed, or if within 90 days after
the appointment without such Person's consent or acquiescence of a trustee,
receiver or liquidator of such Person or of all or any substantial part of its
properties, the appointment is not vacated or stayed, or if within 90 days after
the expiration of any such stay, the appointment is not vacated, or (viii)
admits in writing its inability to pay its debts generally as such debts become
due. The foregoing definition of "Bankruptcy" is intended to replace and shall
supersede and replace the definition of "Bankruptcy" set forth in Sections
18-101(1) and 18-304 of the Act.
"Basic Documents" means (i) the Pooling and Servicing Agreement, (ii)
the Purchase Agreement, (iii) the Credit Agreement, (iv) the Administrative
Services and Premises Agreement, (v) the Series Supplements, (vi) the Trust
Agreements, (vii) the Transfer Agreements, (viii) the Trust Obligations, (ix)
the First Amendment to the American Express Credit Account Secured Note Trust
2004-1 Trust Agreement, dated on or about April 16, 2004, among the Bank, the
Company, American Express Receivables Financing Corporation II, American Express
Receivables Financing Corporation IV LLC and Wilmington Trust Company, as owner
trustee, (x) the First Amendment to the American Express Credit Account Secured
Note Trust 2004-1 Transfer and Administration Agreement, dated on or about April
16, 2004, among the Bank, the Company, American Express Receivables Financing
Corporation II, American Express Receivables Financing Corporation IV LLC,
American Express Travel Related Services Company, Inc. and the American Express
Credit Account Secured Note Trust 2004-1, (xi) the Omnibus Amendment to the
Series Supplements, dated on or about April 16, 2004, among the Bank, the
Company, American Express Receivables Financing Corporation II, American Express
Receivables Financing Corporation IV LLC, American Express Travel Related
Services Company, Inc. and the Trustee, (xii) the Amended and Restated
Transferors' Agreement, dated on or about April 16, 2004, among the Company,
American Express Receivables Financing Corporation II, American Express
Receivables Financing Corporation IV LLC and American Express Travel Related
Services Company, Inc., (xiii) the Assignment and Bill of Sale, dated on or
about April 16, 2004, among the Bank, the Company and American Express
Receivables Financing Corporation IV LLC and (xiv) all documents, instruments
and certificates contemplated thereby or delivered in connection therewith, and
all amendments thereto.
A-1
"Board" or "Board of Directors" means the Board of Directors of the
Company.
"Certificate of Formation" means the Certificate of Formation of the
Company filed with the Secretary of State of the State of Delaware on March 11,
2004, as amended or amended and restated from time to time.
"Company" means American Express Receivables Financing Corporation III
LLC, a Delaware limited liability company.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities or general partnership or managing
member interests, by contract or otherwise. "Controlling" and "Controlled" shall
have correlative meanings. Without limiting the generality of the foregoing, a
Person shall be deemed to Control any other Person in which it owns, directly or
indirectly, a majority of the ownership interests.
"Covered Persons" has the meaning set forth in Section 20(a).
"Credit Agreement" means the Revolving Credit Agreement entered into by
the Bank and the Company, as from time to time amended, supplemented or
otherwise modified.
"Directors" means the Persons elected to the Board of Directors from
time to time by the Member, including the Independent Director, in their
capacity as managers of the Company. A Director is hereby designated as a
"manager" of the Company within the meaning of Section 18-101(10) of the Act.
"Independent Director" means a natural person who, for the five-year
period prior to his or her appointment as Independent Director has not been, and
during the continuation of his or her service as Independent Director is not:
(i) an employee, director, stockholder, partner, agent, consultant, advisor,
attorney, accountant or officer of the Company or any of its Affiliates (other
than his or her service as an Independent Director or other similar capacity
and/or Special Member of the Company or any of such Affiliates); (ii) a customer
or supplier of the Company or any of its Affiliates; or (iii) any member of the
immediate family of a person described in (i) or (ii).
A-2
"Management Agreement" means the agreement of the Directors in the form
attached hereto as Schedule C. The Management Agreement shall be deemed
incorporated into, and a part of, this Agreement.
"Material Action" means to consolidate or merge the Company with or
into any Person, or sell all or substantially all of the assets of the Company,
or to institute proceedings to have the Company be adjudicated bankrupt or
insolvent, or consent to the institution of bankruptcy or insolvency proceedings
against the Company or file a petition seeking, or consent to, reorganization or
relief with respect to the Company under any applicable federal or state law
relating to bankruptcy, or consent to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Company or a
substantial part of its property, or make any assignment for the benefit of
creditors of the Company, or admit in writing the Company's inability to pay its
debts generally as they become due, or take action in furtherance of any such
action, or, to the fullest extent permitted by law, dissolve or liquidate the
Company.
"Member" means American Express Centurion Bank, as the member of the
Company, and includes any Person admitted as an additional member of the Company
or a substitute member of the Company pursuant to the provisions of this
Agreement, each in its capacity as a member of the Company; provided, however,
that the term "Member" shall not include the Special Member.
"Officer" means an officer of the Company described in Section 11.
"Person" means any individual, corporation, partnership, joint venture,
limited liability company, limited liability partnership, association, joint
stock company, trust, unincorporated organization, or other organization,
whether or not a legal entity, and any governmental authority.
"Pooling and Servicing Agreement" means the Amended and Restated
Pooling and Servicing Agreement by and among the Company, American Express
Receivables Financing Corporation II and American Express Receivables Financing
Corporation IV LLC, as Transferors, American Express Travel Related Services
Company, Inc., as Servicer, and the Trustee with respect to the Trust, as from
time to time amended, supplemented or otherwise modified.
"Purchase Agreement" means the Receivables Purchase Agreement entered
into by the Bank and the Company, as from time to time amended, supplemented or
otherwise modified.
"Rating Agency" has the meaning assigned to that term in the Pooling
and Servicing Agreement.
"Rating Agency Condition" means, with respect to any action, that each
Rating Agency shall have been given ten days prior notice thereof and that each
of the Rating Agencies shall have notified the Company in writing prior to such
action that such action will not result in a reduction or withdrawal of the then
current rating of any Series or Class (each as defined in the Pooling and
Servicing Agreement) with respect to which it is a Rating Agency.
"Seller" has the meaning assigned thereto in the Purchase Agreement.
"Series Supplement" means any supplement to the Pooling and Servicing
Agreement executed and delivered in connection with the original issuance of
Investor Certificates (as defined in the Pooling and Servicing Agreement) of a
series, whether executed and delivered prior to or after the date of this
Agreement, and all amendments and supplements thereto.
A-3
"Special Member" means, upon such person's admission to the Company as
a member of the Company pursuant to Section 5(c), a person acting as Independent
Director, in such person's capacity as a member of the Company. A Special Member
shall only have the rights and duties expressly set forth in this Agreement.
"Transfer Agreement" has the meaning set forth in Section 7(a). For
purposes of the definition of "Basic Documents," the term "Transfer Agreement"
shall also mean any other similar agreement or agreements entered into from time
to time by the Company as Transferor and pursuant to which the Company will
transfer an interest in the Trust to a trust.
"Transferor" has the meaning assigned thereto in the Pooling and
Servicing Agreement or in the related Transfer Agreement, as the context
requires.
"Trust" means the American Express Credit Account Master Trust
heretofore created and continued under the terms of the Pooling and Servicing
Agreement.
"Trust Agreement" has the meaning set forth in Section 7(a). For
purposes of the definition of "Basic Documents," the term "Trust Agreement"
shall also mean any other trust agreements entered into from time to time by the
Company providing for the creation of a trust to which the Company shall
transfer an interest in the Trust.
"Trust Obligation" means any Investor Certificate (as defined in the
Pooling and Servicing Agreement) or other interest in the Trust issued under the
Pooling and Servicing Agreement and any supplement thereto.
"Trustee" means The Bank of New York, a New York banking corporation,
as the trustee under the Pooling and Servicing Agreement.
B. Rules of Construction
Definitions in this Agreement apply equally to both the singular and
plural forms of the defined terms. The words "include" and "including" shall be
deemed to be followed by the phrase "without limitation." The terms "herein,"
"hereof" and "hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular Section, paragraph or
subdivision. The Section titles appear as a matter of convenience only and shall
not affect the interpretation of this Agreement. All Section, paragraph, clause,
Exhibit or Schedule references not attributed to a particular document shall be
references to such parts of this Agreement.
A-4
SCHEDULE B
Member
Agreed Value of Membership
Name Mailing Address Capital Contribution Interest
- ------------------------------ ---------------------------- -------------------- -----------
American Express Centurion 4315 South 2700 West $100 100%
Bank Salt Lake City, Utah 84184
B-1
SCHEDULE C
Management Agreement
April 16, 2004
American Express Receivables Financing Corporation III LLC
4315 South 2700 West
Salt Lake City, Utah 84184
Re: Management Agreement -- American Express Receivables
Financing Corporation III LLC
------------------------------------------------------
Ladies and Gentlemen:
For good and valuable consideration, each of the undersigned persons,
who have been designated as directors of American Express Receivables Financing
Corporation III LLC, a Delaware limited liability company (the "Company"), in
accordance with the Amended and Restated Limited Liability Company Agreement of
the Company, dated as of April 16, 2004, as it may be amended or restated from
time to time (the "LLC Agreement"), hereby agrees as follows:
1. Each of the undersigned accepts such person's rights and authority
as a Director under the LLC Agreement and agrees to perform and discharge such
person's duties and obligations as a Director under the LLC Agreement, and
further agrees that such rights, authorities, duties and obligations under the
LLC Agreement shall continue until such person's successor as a Director is
designated or until such person's resignation or removal as a Director in
accordance with the LLC Agreement. Each of the undersigned agrees and
acknowledges that it has been designated as a "manager" of the Company within
the meaning of the Delaware Limited Liability Company Act.
2. So long as any Trust Obligation is outstanding, each of the
undersigned agrees, solely in its capacity as a creditor of the Company on
account of any indemnification or other payment owing to the undersigned by the
Company, not to acquiesce, petition or otherwise invoke or cause the Company to
invoke the process of any court or governmental authority for the purpose of
commencing or sustaining an involuntary case against the Company under any
federal or state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Company or any substantial part of the property of the Company, or
ordering the winding up or liquidation of the affairs of the Company.
3. THIS MANAGEMENT AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, AND ALL RIGHTS AND REMEDIES
SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.
Initially capitalized terms used and not otherwise defined herein have
the meanings set forth in the LLC Agreement.
This Management Agreement may be executed in any number of
counterparts, each of which shall be deemed an original of this Management
Agreement and all of which together shall constitute one and the same
instrument.
C-1
IN WITNESS WHEREOF, the undersigned have executed this Management
Agreement as of the day and year first above written.
By:
-------------------------
Name: Daniel L. Follett
Title: Director
By:
-------------------------
Name: Michael A. Bender
Title: Director
By:
-------------------------
Name: Ruth K. Lavelle
Title: Director
C-2
SCHEDULE D
DIRECTORS
1. Daniel L. Follett
2. Michael A. Bender
3. Ruth K. Lavelle
D-1
SCHEDULE E
OFFICERS TITLE
- -------- -----
L. Craig Downs President
Daniel L. Follett Vice President and Treasurer
Michael A. Bender Vice President and Secretary
E-1