Exhibit 4.7
FORM OF SUBSERVICING AGREEMENT
THIS SUBSERVICING AGREEMENT is made as of [___], 200[_] (this
"Agreement"), among American Express Travel Related Services Company, Inc., a
New York corporation (the "Servicer") and Amex Card Services Company ("ACSC" or
the "Subservicer").
RECITALS
WHEREAS, the Servicer is a party to the Pooling and Servicing
Agreement, dated as of May 16, 1996, as amended and restated as of January 1,
2006 (as so amended and restated and as further amended and supplemented from
time to time, the "Pooling and Servicing Agreement"), among American Express
Receivables Financing Corporation II, American Express Receivables Financing
Corporation III LLC and American Express Receivables Financing Corporation IV
LLC, as Transferors (the "Transferors"), the Servicer, and The Bank of New York,
as Trustee (in such capacity, the "Trustee"); and
WHEREAS, pursuant to the Pooling and Servicing Agreement, the Servicer
has agreed to service and administer, or cause to be serviced and administered,
the Receivables; and
WHEREAS, the parties hereto desire that the Servicer engage the
Subservicer to subservice and administer certain Receivables upon the terms and
conditions and subject to the limitations hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement, and for other valuable consideration the receipt
and sufficiency of which are hereby acknowledged, the Servicer and the
Subservicer hereby agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise defined
shall have the meanings set forth in the Pooling and Servicing Agreement, a copy
of which has been delivered by the Servicer to the Subservicer.
2. Engagement of the Subservicer. Pursuant to Section 3.01 of the
Pooling and Servicing Agreement, the Servicer hereby engages ACSC to perform the
duties specified in Section 4 below, and ACSC hereby accepts such engagement.
3. Subservicing Fee. (a) As compensation for subservicing and
administering the Receivables in accordance with this Agreement, the Servicer
shall pay to the Subservicer, in immediately available funds on each
Distribution Date, a subservicing fee in an amount that the Servicer and the
Subservicer mutually agree will result in a Subservicing Fee determined to be
fair consideration for the subservicing and administrative obligations performed
by such Subservicer, which shall not exceed the Servicing Fee payable to the
Servicer under the Pooling and Servicing Agreement.
(b) Payment of the Subservicing Fee shall be independent of, and shall
not be conditioned in any way on, the receipt by the Servicer of the Servicing
Fee under the Pooling and Servicing Agreement.
4. Duties of the Subservicer. (a) As agent for the Servicer, the
Subservicer shall take all actions reasonably requested by the Servicer to
subservice and administer the applicable Receivables and perform the duties
enumerated in Items 1122(d)(iv), (vi), (vii), (viii), (ix) and (xiv) of
Regulation AB, in each case in accordance with the Pooling and Servicing
Agreement, the applicable Account Agreements, the applicable Credit Guidelines,
the Subservicer's customary and usual servicing procedures for servicing credit
or charge receivables comparable to such Receivables and the applicable
servicing agreements with the Account Owners. As agent for the Servicer, the
Subservicer shall have full power and authority, acting alone or through the
Servicer, to do any and all things in connection with such subservicing and
administration which it may deem necessary or desirable and which is permitted
of the Servicer under the Pooling and Servicing Agreement.
(b) The Subservicer shall not be obligated to use separate servicing
procedures, offices, employees, or accounts for subservicing the applicable
Receivables from the procedures, offices, employees, and accounts used by the
Subservicer in connection with servicing other comparable receivables. The
Subservicer may commingle Collections on the applicable Receivables to the
extent permitted of the Servicer under the Pooling and Servicing Agreement.
(c) The Servicer shall furnish the Subservicer with any files, records,
or documents necessary or appropriate to enable the Subservicer to carry out its
subservicing and administrative duties hereunder. The Subservicer shall furnish
the Servicer with any files, records, or documents necessary or appropriate to
enable the Servicer to carry out its servicing and administrative duties under
the Pooling and Servicing Agreement.
(d) The Subservicer shall pay out of its own funds, without
reimbursement, all expenses incurred in connection with its subservicing
activities hereunder.
(e) The Subservicer shall duly satisfy all obligations on its part to
be fulfilled under or in connection with each applicable Receivable and the
related Account, will maintain in effect all qualifications required under
Requirements of Law in order to subservice properly each applicable Receivable
and the related Account, and will comply in all material respects with all other
Requirements of Law in connection with subservicing each applicable Receivable
and the related Account, the failure to comply with which would have an Adverse
Effect.
(f) The Subservicer shall not authorize any rescission or cancellation
of any Receivable except in accordance with the applicable Credit Guidelines or
as ordered by a court of competent jurisdiction or other Governmental Authority.
(g) The Subservicer shall not take any action which, or omit to take
any action the omission of which, would impair the rights of the Trustee in any
Receivable. The Subservicer shall not reschedule, revise, or defer payments due
on any Receivable except in accordance with the applicable Credit Guidelines,
nor shall it sell any assets in the Trust.
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(h) Except in connection with its enforcement or collection of an
Account, the Subservicer shall not take any action to cause any Receivable to be
evidenced by any instrument (as defined in the UCC).
(i) As reasonably requested by the Servicer, the Subservicer shall (i)
furnish the Servicer with true and complete copies of all reports, statements,
certificates, notices, and other documents received or generated by the
Subservicer in connection with its duties hereunder and (ii) cooperate with the
Servicer in taking any and all actions which the Servicer deems necessary in
order for it to satisfactorily perform its obligations under the Pooling and
Servicing Agreement. Nothing in this Agreement shall be construed as granting to
the Subservicer any right or power with respect to the Receivables that is more
expansive than that granted to the Servicer under the Pooling and Servicing
Agreement.
5. Reimbursement of the Servicer. The Subservicer shall reimburse the
Servicer for any loss arising from a claim or demand (including any claim for
damages and any demand to accept an assignment of Receivables) that is made
against the Servicer under the Pooling and Servicing Agreement and that arises
from the Subservicer's misconduct, negligence, or failure to abide by the terms
of this Agreement (including provisions of the Pooling and Servicing Agreement
made applicable by this Agreement).
6. Representations, Warranties, and Covenants of the Parties. Each
party, for and as to itself only, hereby makes the following representations,
warranties, and covenants for the benefit of the other party:
(a) Such party is and will remain a legal entity duly organized and
validly existing in good standing under the laws of the jurisdiction of its
organization. Such party has, in all material respects, full power and authority
to own its properties and conduct its business as presently owned or conducted.
Such party has and will have, in all material respects, full power and authority
to execute, deliver, and perform its obligations under this Agreement.
(b) Such party is and will remain duly qualified to do business, is and
will remain in good standing as a foreign entity (or is exempt from such
requirements), and has obtained and will retain all necessary licenses and
approvals, in each jurisdiction in which its obligations under this Agreement
require such qualification, except where the failure to so qualify or obtain
licenses or approvals would not have a material adverse effect on its ability to
perform its obligations under this Agreement.
(c) Such party's execution, delivery, and performance of this Agreement
have been duly authorized by all necessary action on the part of such party.
(d) This Agreement constitutes a legal, valid, and binding obligation
of such party, enforceable in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, or other
similar laws affecting creditors' rights generally or by general principles of
equity.
(e) The execution and delivery of this Agreement by such party, and the
performance by such party of the transactions contemplated by this Agreement,
and the fulfillment by such party of the terms hereof and thereof applicable to
such party, will not conflict with, violate or result in any breach of any of
the material terms and provisions of, or constitute (with or without notice or
lapse of time or both) a material default under, any indenture, contract,
agreement, mortgage, deed of trust, or other instrument to which such party is a
party or by which it or its properties are bound.
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(f) The execution and delivery of this Agreement by such party, the
performance by such party of the transactions contemplated by this Agreement,
and the fulfillment by such party of the terms hereof and thereof applicable to
such party, will not conflict with or violate any Requirements of Law applicable
to such party.
(g) There are no proceedings or investigations pending or, to the best
knowledge of such party, threatened against such party before any Governmental
Authority seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or seeking any determination or ruling that, in
the reasonable judgment of such party, would materially and adversely affect the
performance by such party of its obligations under this Agreement.
(h) All authorizations, consents, orders, or approvals of or
registrations or declarations with any Governmental Authority required to be
obtained, effected, or given by such party in connection with the execution and
delivery of this Agreement by such party, and the performance of the
transactions contemplated by this Agreement by such party, have been duly
obtained, effected, or given and are and will remain in full force and effect.
7. Resignation or Termination of the Subservicer. The Subservicer may
resign at any time upon at least 45 days prior written notice to the Servicer.
The Servicer may terminate the Subservicer at any time upon at least 45 days
prior written notice to the Subservicer. The Servicer also may terminate the
Subservicer at any time without prior notice if (i) the Subservicer fails to
perform its obligations hereunder or (ii) any event occurs which materially and
adversely affects the ability of the Subservicer or the Servicer to collect the
applicable Receivables, the ability of the Subservicer to perform its
obligations hereunder, or the ability of the Servicer to perform its obligations
under the Pooling and Servicing Agreement.
8. Term. Except as provided in Section 7 of this Agreement, this
Agreement shall continue in full force and effect until the earlier of (i) the
termination of the Servicer under the Pooling and Servicing Agreement or (ii)
the termination of the Pooling and Servicing Agreement.
9. Acknowledgement by Servicer. Notwithstanding the delegation of
servicing set forth in this Agreement, the Servicer hereby acknowledges that
such delegation shall not relieve the Servicer of its duties under the Pooling
and Servicing Agreement and that the Servicer shall remain obligated and liable
to the Transferors and the Trustee for its duties under the Pooling and
Servicing Agreement as if the Servicer alone were performing such duties.
10. Compliance with Regulation AB. The Subservicer hereby acknowledges
that it is a "Subservicer" for purposes of Article XIV of the Pooling and
Servicing Agreement and, accordingly, agrees to provide the Servicer with such
documents and information necessary or appropriate to enable the Servicer and
the Transferors to comply with Regulation AB, including, without limitation, the
information specified in Sections 14.06, 14.07 and 14.08 of the Pooling and
Servicing Agreement.
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10. Notices. All notices, requests, and other communications permitted
or required hereunder shall be in writing and shall be delivered personally or
mailed by certified mail, postage prepaid and return receipt requested, or by
telex or facsimile as follows:
If to the Servicer, addressed to:
American Express Travel Related Services Company, Inc.
200 Vesey Street
New York, New York 10285
Attn: Treasurer (facsimile no. (212) 619-7099),
If to the Subservicer, addressed to
Amex Card Services Company
4315 South 2700 West
Salt Lake City, Utah 84184,
or to such other place within the United States of America as any party
may designate as to itself by written notice to the other parties. All notices
given by personal delivery or mail shall be effective on the date of actual
receipt at the appropriate address. Notice given by telex or facsimile shall be
effective upon actual receipt if received during the recipient's normal business
hours or the beginning of the next business day after receipt if received after
the recipient's normal business hours.
11. Non-Petition Covenant. Each of the Servicer and the Subservicer
hereby covenants and agrees that it will not at any time institute against any
Transferor, or join in instituting against any Transferor, any case or
proceeding under the United States Bankruptcy Code or any other bankruptcy,
insolvency, or similar law.
12. Successors and Assigns. This Agreement shall be binding on the
parties hereto and their respective successors and assigns; provided, however,
that the Subservicer may not assign any of its rights or delegate any of its
duties hereunder without the prior written consent of the Servicer.
13. Severability. The provisions of this Agreement are intended to be
severable. If any provision of this Agreement shall be held invalid or
unenforceable in whole or in part in any jurisdiction, such provision shall, as
to such jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without in any manner affecting the validity or enforceability
of such provision in any other jurisdiction or the remaining provisions hereof
in any jurisdiction.
14. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
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15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS
CONFLICTS OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
16. Captions. The captions in this Agreement are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
17. Entire Agreement; Amendments; Waiver. This Agreement constitutes
the entire agreement of the parties on the subject matter addressed herein and
supersedes any other agreement of the parties on such subject matter. This
Agreement may not be amended, and no rights hereunder may be waived, except by a
written document signed by the duly authorized representatives of the parties.
No waiver of any of the provisions of this Agreement shall be deemed to be or
shall constitute a waiver of any other provisions hereof (whether or not
similar), nor shall such waiver constitute a continuing waiver unless otherwise
expressly provided.
18. Third-Party Beneficiaries. The Trustee and its successors and
permitted assigns shall be third party beneficiaries to this Agreement entitled
to enforce the provisions hereof as if a party hereto. Except as otherwise
provided in the previous sentence, no Person other than the Servicer or the
Subservicer will have any right hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
AMERICAN EXPRESS TRAVEL RELATED
SERVICES COMPANY, INC.
By: _______________________________________
Name:
Title:
AMEX CARD SERVICES COMPANY
By: _______________________________________
Name:
Title: