Registration No. 333-  



UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549


F ORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933


American Express Company
(Exact name of registrant as specified in its charter)


 

 

 

New York
(State or other jurisdiction of incorporation or organization)

200 Vesey Street,
New York, New York 10285
(212) 640-2000

(Address, including zip code, and telephone number, including area code,
of registrant’s principal executive offices)

 

13-4922250
(I.R.S. Employer Identification Number)

LOUISE M. PARENT, Esq.
Executive Vice President and General Counsel
American Express Company
200 Vesey Street
New York, New York 10285
(212) 640-2000

(Name, address, including zip code, and telephone number, including
area code, of agent for service)


 

 

 

Copies to:

DAVID S. CARROLL, Esq.
Senior Counsel
American Express Company
200 Vesey Street
New York, New York 10285
(212) 640-2000

 

LESLIE N. SILVERMAN, Esq.
CRAIG B. BROD, Esq.
KIMBERLY B. BLACKLOW, Esq.
Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza
New York, New York 10006
(212) 225-2000


Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement, as determined in light of market conditions.

If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.  £

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, please check the following box.  S

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act of 1933, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  £

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act of 1933, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  £

If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act of 1933, check the following box.  S

If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities pursuant to Rule 413(b) under the Securities Act of 1933, check the following box.  £

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company.

 

 

 

 

 

 

 

 

 

Large accelerated filer

 

S

 

 

 

Accelerated filer

 

£

Non-accelerated filer

 

£

 

(Do not check if a smaller reporting company)

 

Smaller reporting company

 

£


CALCULATION OF REGISTRATION FEE

 

 

 

 

Title of each class of Securities
to be Registered

 

 

Amount to be Registered/
Proposed Maximum Offering Price per Unit/
Proposed Maximum Aggregate Offering Price/
Amount of Registration Fee

Debt Securities

 

 

Preferred Shares, par value $1.66 2 / 3 per share (1)

 

 

 

(2

)(3)

 

Depositary Shares

 

 

Common Shares, par value $0.20 per share (1)

 

 

Warrants

 

 

 

 

(1)

 

 

 

An indeterminate number of preferred shares and common shares may be issued from time to time upon exercise, conversion or exchange of other securities.

 

(2)

 

 

 

An indeterminate aggregate initial offering price and number of the securities of each identified class is being registered and may from time to time be offered at indeterminate prices. Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of other securities.

 

(3)

 

 

 

In accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended, the Registrant is deferring payment of the entire registration fee. In connection with the securities offered hereby, the Registrant will pay “pay-as-you-go registration fees” in accordance with Rule 456(b).




PROSPECTUS

 

 

 

 

 

 

American Express Company
Debt Securities
Preferred Shares
Depositary Shares
Common Shares
Warrants

 

 


American Express Company may offer from time to time in one or more series:

 

 

 

 

unsecured debt securities,

 

 

 

 

preferred shares, par value $1.66 2 / 3 per share,

 

 

 

 

depositary shares,

 

 

 

 

common shares, par value $0.20 per share,

 

 

 

 

warrants to purchase debt securities, preferred shares, common shares or equity securities issued by one of our affiliated or unaffiliated corporations or other entity,

 

 

 

 

currency warrants entitling the holder to receive the cash value in U.S. dollars of the right to purchase or the right to sell foreign currencies or composite currencies or

 

 

 

 

warrants relating to other items or indices.

We may offer any combination of these securities at prices and on terms to be determined at or prior to the time of sale.

We may offer and sell securities to or through one or more underwriters, dealers and agents, or directly to purchasers. The names and compensation of any underwriters or agents involved in the sale of securities will be described in a supplement to this prospectus.

We will provide the specific terms of any offering in a supplement to this prospectus. This prospectus may not be used to consummate a sale of these securities unless accompanied by a supplement to this prospectus.

Our common stock is listed on the New York Stock Exchange under the symbol “AXP.”

You should carefully consider the information under “Risk Factors” beginning on page 2 of this prospectus as well as the risk factors contained in other documents incorporated by reference into this prospectus.

Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.


The date of this prospectus is October 30, 2009.


TABLE OF CONTENTS

Prospectus

 

 

 

 

 

Page

About this Prospectus

 

 

 

i

 

Where You Can Find More Information

 

 

 

ii

 

Incorporation of Certain Documents by Reference

 

 

 

ii

 

Forward-Looking Statements

 

 

iii

 

The Company

 

 

 

1

 

Risk Factors

 

 

 

2

 

Ratio of Earnings to Fixed Charges

 

 

 

7

 

Use of Proceeds

 

 

 

8

 

Description of Debt Securities

 

 

 

9

 

Description of Preferred Shares

 

 

 

29

 

Description of Depositary Shares

 

 

 

31

 

Description of Common Shares

 

 

 

32

 

Description of Securities Warrants

 

 

 

34

 

Description of Currency Warrants

 

 

 

35

 

Description of Other Warrants

 

 

 

36

 

ERISA Considerations

 

 

 

37

 

Certain U.S. Federal Income Tax Consequences

 

 

 

39

 

Plan of Distribution

 

 

 

47

 

Legal Matters

 

 

 

49

 

Experts

 

 

 

49

 

You should rely only on the information contained or incorporated by reference in this prospectus or in a prospectus supplement. We have not authorized anyone to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. We are not making an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. You should not assume that the information contained or incorporated by reference in this prospectus or any prospectus supplement is accurate as of any date other than the date of the document containing the information.

ABOUT THIS PROSPECTUS

This prospectus is part of a registration statement on Form S-3, to which we refer as the registration statement, filed with the Securities and Exchange Commission, to which we refer as the SEC, under the Securities Act of 1933, as amended, to which we refer as the Securities Act, using a shelf registration process. Under this process, we may sell from time to time any combination of the securities described in this prospectus.

This prospectus describes the general terms of these securities and the general manner in which we will offer the securities. Each time these securities are sold, this prospectus will be accompanied by a prospectus supplement that describes the specific terms of these securities and the specific manner in which they may be offered. You should read the prospectus supplement and this prospectus, along with the documents incorporated by reference and described under the headings “INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE” and “WHERE YOU CAN FIND MORE INFORMATION,” before making your investment decision.

References in this prospectus to the “Company,” “American Express,” “we,” “us” and “our” are to American Express Company.

We have filed or incorporated by reference exhibits to the registration statement of which this prospectus forms a part. You should read the exhibits carefully for provisions that may be important to you.

i


WHERE YOU CAN FIND MORE INFORMATION

We file annual, quarterly and current reports and other information with the SEC. Our SEC filings are available to the public from the SEC’s Website at http://www.sec.gov. You may also read and copy any document we file, including the registration statement, at the SEC’s public reference facilities at 100 F Street, N.E., Room 1580, Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information about the operation of the public reference room.

INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE

The SEC allows us to incorporate by reference the information we file with the SEC, which means that we can disclose important information to you by referring you to those documents. The information that we incorporate by reference is considered to be part of this prospectus.

Any reports filed by us with the SEC after the date of this prospectus and before the date that the offering of the securities by means of this prospectus is terminated will automatically update and, where applicable, supersede any information contained in this prospectus or incorporated by reference in this prospectus. This means that you must look at all of the SEC filings that we incorporate by reference to determine if any of the statements in this prospectus or in any documents previously incorporated by reference have been modified or superseded. We incorporate by reference into this prospectus the following documents filed with the SEC (other than, in each case, documents or information deemed furnished and not filed in accordance with the SEC rules, including pursuant to Item 2.02 or Item 7.01 of Form 8-K, and no such information shall be deemed specifically incorporated by reference hereby or in any accompanying prospectus supplement):

 

 

 

 

Annual Report on Form 10-K for the year ended December 31, 2008.

 

 

 

 

Quarterly Report on Form 10-Q for the quarter ended March 31, 2009.

 

 

 

 

Quarterly Report on Form 10-Q for the quarter ended June 30, 2009.

 

 

 

 

Quarterly Report on Form 10-Q for the quarter ended September 30, 2009.

 

 

 

 

Current Reports on Form 8-K filed on January 9, 2009, May 19, 2009 (2), June 5, 2009, June 17, 2009, July 29, 2009 and October 6, 2009.

 

 

 

 

All documents filed by us under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, on or after the date of this prospectus and before the date that the offering of the securities by means of this prospectus is terminated.

You may request a copy of these filings at no cost, by writing or telephoning us at the following address or number:

American Express Company
200 Vesey Street
New York, New York 10285
Attention: Secretary
(212) 640-2000

ii


FORWARD-LOOKING STATEMENTS

We have made various statements in this prospectus that may constitute “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. Forward-looking statements may also be made in our documents incorporated or deemed to be incorporated by reference in this prospectus, in our press releases, in reports filed with the SEC and in other documents. In addition, from time to time, we, through our management, may make oral forward-looking statements. Forward-looking statements are subject to risks and uncertainties, including those identified in the documents that are or will be incorporated by reference into this prospectus, which could cause actual results to differ materially from such statements. The words “believe,” “expect,” “anticipate,” “optimistic,” “intend,” “plan,” “aim,” “will,” “may,” “should,” “could,” “would,” “likely” and similar expressions are intended to identify forward-looking statements. We caution you that any risk factors described in this prospectus, in any prospectus supplement or in any documents incorporated by reference herein are not exclusive. There may also be other risks that we are unable to predict at this time that may cause actual results to differ materially from those in forward-looking statements. Readers are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date on which they are made. We undertake no obligation to update publicly or revise any forward-looking statements.

Information concerning important factors that could cause actual events or results to be materially different from the forward–looking statements can be found in the “Risk Factors” section of this prospectus as well as in the documents that are or will be incorporated by reference into this prospectus. Although we believe the expectations reflected in our forward-looking statements are based upon reasonable assumptions, it is not possible to foresee or identify all factors that could have a material and negative impact on our future performance. The forward-looking statements included or incorporated by reference in this prospectus are made on the basis of management’s assumptions and analyses, as of the time the statements are made, in light of their experience and perception of historical conditions, expected future developments and other factors believed to be appropriate under the circumstances.

Except as otherwise required by the federal securities laws, we disclaim any obligations or undertaking to publicly release any updates or revisions to any forward-looking statement contained or incorporated by reference in this prospectus to reflect any change in our expectations with regard thereto or any change in events, conditions or circumstances on which any such statement is based.

iii


THE COMPANY

We, together with our consolidated subsidiaries, are a leading global payments and travel company. Our principal products and services are charge and credit payment card products and travel-related services offered to consumers and businesses around the world. We and our principal operating subsidiary, American Express Travel Related Services Company, Inc., each became a bank holding company, and each elected to be treated as a financial holding company, under the Bank Holding Company Act of 1956, subject to the supervision and examination by the Board of Governors of the Federal Reserve System, or the Federal Reserve, on November 14, 2008.

Our reportable operating segments are comprised of two customer-focused groups—the Global Consumer Group and the Global Business-to-Business Group.

Global Consumer Group

The Global Consumer Group offers a range of products and services, including charge and credit card products for consumers and small businesses worldwide (primarily through our U.S. bank subsidiaries and affiliates), consumer travel services and stored value products such as Travelers Cheques and other prepaid products.

Global Business-to-Business Group

The Global Business-to-Business Group provides, among other products and services, business travel, corporate cards and other expense-management products and services, network services for our network partners, and merchant acquisition and merchant processing, point-of-sale, servicing and settlement and marketing products and services for merchants.

In certain countries we have granted licenses to partially-owned affiliates and unaffiliated entities to offer some of these products and services.


A key asset of our network is the American Express brand, which is one of the world’s most highly recognized and respected brands.

The Company’s products and services are sold globally to diverse customer groups, including consumers, small businesses, middle-market companies and large corporations. These products and services are sold through various channels including direct mail, on-line applications, targeted sales forces, and direct response advertising.

Our general-purpose card network, card-issuing and merchant-acquiring and processing businesses are global in scope. We are a world leader in providing charge and credit cards to consumers, small businesses and large corporations. These cards include cards issued by American Express as well as cards issued by third-party banks and other institutions that are accepted on the American Express network (collectively,“Cards”). Our Cards permit our cardmembers, or Cardmembers, to charge purchases of goods and services in most countries around the world at the millions of merchants that accept Cards bearing our logo. As of September 30, 2009, we had a total of 88.4 million Cards-in-force worldwide (including Cards issued by third parties). For the nine months ended September 30, 2009, our worldwide billed business (spending on American Express ® Cards, including Cards issued by third parties) was $447.2 billion.

Our executive offices are located at 200 Vesey Street, New York, New York 10285 (telephone number: 212-640-2000).

1


RISK FACTORS

The following risk factors may be applicable to certain types of securities that may be issued by us. Descriptions of the securities are contained below under “Description of Debt Securities,” “Description of Preferred Shares” and “Description of Common Shares,” as well as in the accompanying prospectus supplement for each type of security we issue. Before making an investing decision, you should carefully consider these risks as well as other information we include or incorporate by reference in this prospectus, including the risk factors relating to us included in our periodic or current reports and incorporated herein by reference.

The Price of Our Common Shares May Fluctuate Significantly, and This May Make It Difficult for You to Resell the Common Shares You Own At Times or At Prices You Find Attractive.

The trading price of our common shares may fluctuate widely as a result of a number of factors, many of which are outside our control. In addition, the stock market is subject to fluctuations in share prices and trading volumes that affect the market prices of the shares of many companies. These broad market fluctuations have adversely affected and may continue to adversely affect the market price of our common shares. Among the factors that could affect our stock price are:

 

 

 

actual or anticipated quarterly fluctuations in our operating results and financial condition;

 

 

 

 

changes in revenue or earnings estimates or publication of research reports and recommendations by financial analysts or actions taken by rating agencies with respect to our securities or those of other financial institutions;

 

 

 

 

failure to meet analysts’ revenue or earnings estimates;

 

 

 

 

speculation in the press or investment community generally or relating to our reputation or the financial services industry;

 

 

 

 

strategic actions by us or our competitors, such as acquisitions or restructurings;

 

 

 

 

actions by institutional shareholders;

 

 

 

 

fluctuations in the stock price and operating results of our competitors;

 

 

 

 

future sales of our equity or equity-related securities;

 

 

 

 

changes in the frequency or amount of dividends or share repurchases;

 

 

 

 

proposed or adopted regulatory changes or developments;

 

 

 

 

anticipated or pending investigations, proceedings, or litigation that involve or affect us;

 

 

 

 

domestic and international economic factors unrelated to our performance; or

 

 

 

 

general market conditions and, in particular, developments related to market conditions for the financial services industry.

A significant decline in our stock price could result in substantial losses for individual shareholders and could lead to costly and disruptive securities litigation.

There May Be Sales or Other Dilution of Our Equity, Which May Adversely Affect the Market Price of Our Common Shares.

Except as described in the accompanying prospectus supplement, we are not restricted from issuing additional common shares or preferred shares, including securities that are convertible into or exchangeable for, or that represent the right to receive, common shares or preferred shares. The issuance of additional common shares or convertible securities will dilute the ownership interest of our existing common shareholders. The market price of our common shares could decline as a result of sales by us or others of a large block of our common shares, preferred shares or similar securities in the market, or the perception that such sales could occur.

You May Not Receive Dividends on Common Shares.

Holders of our common shares are only entitled to receive such dividends as our Board of Directors may declare out of funds legally available for such payments. Furthermore, holders of our common shares are subject to the prior dividend rights of holders of our preferred shares or the depositary shares

2


representing such preferred shares then outstanding. Although historically we have declared cash dividends on our common shares, we are not required to do so and may reduce or eliminate dividends on our common shares in the future. Additionally, we are limited in our ability to pay dividends by our regulators who could prohibit a dividend that would be considered an unsafe or unsound banking practice. For example, it is the policy of the Federal Reserve that bank holding companies should generally pay dividends on common shares only out of earnings, and only if prospective earnings retention is consistent with the organization’s expected future needs, asset quality, and financial condition. For more information on bank holding company dividend restrictions, please see “Financial Review—Share Repurchases and Dividends” on page 34 and Note 13 on page 96 of our 2008 Annual Report to Shareholders, which information is incorporated herein by reference.

Common Shares Are Equity and Are Subordinate to Our Existing and Future Indebtedness and Preferred Shares.

Our common shares are equity interests and do not constitute indebtedness. As such, our common shares will rank junior to all of our indebtedness and to other non-equity claims against us and our assets available to satisfy claims against us, including in our liquidation. Additionally, holders of our common shares are subject to the prior dividend and liquidation rights of holders of any outstanding preferred shares or the depositary shares representing such preferred shares then outstanding. Our Board of Directors is authorized to issue additional classes or series of preferred shares without any action on the part of the holders of our common shares.

If We Are Deferring Payments on Our Outstanding Subordinated Notes or Are In Default Under the Indentures Governing those Securities, We Will Be Prohibited From Making Distributions on our Common Shares.

The terms of our outstanding subordinated notes prohibit us from declaring or paying any dividends or distributions on our capital stock, including our common shares, or purchasing, acquiring, or making a liquidation payment on such stock, if we are aware of any event that would be an event of default under the indenture governing those subordinated notes or at any time when we have deferred payment of interest on those subordinated notes.

Our Ability to Pay Dividends Depends Upon the Results of Operations of Our Subsidiaries.

We are a holding company that conducts substantially all of our operations through our subsidiaries. As a result, our ability to make dividend payments on our common shares depends primarily upon the receipt of dividends and other distributions from our subsidiaries. In addition, if, in the opinion of the applicable regulatory authority, a bank under its jurisdiction is engaged in or is about to engage in an unsafe or unsound practice, such authority may require, after notice and hearing, that such bank cease and desist from such practice. Depending on the financial condition of our banking subsidiaries, the applicable regulatory authority might deem us to be engaged in an unsafe or unsound practice if our banking subsidiaries were to pay dividends.

In addition, our right to participate in any distribution of assets of any of our subsidiaries upon the subsidiary’s liquidation or otherwise, and thus the ability of holders of our common shares to benefit indirectly from such distribution, will be subject to the prior claims of creditors of that subsidiary, except to the extent that any of our claims as a creditor of such subsidiary may be recognized. As a result, our common shares effectively will be subordinated to all existing and future liabilities and obligations of our subsidiaries.

Anti-Takeover Provisions Could Negatively Impact Our Stockholders.

Provisions of our certificate of incorporation and bylaws could make it more difficult for a third party to acquire control of us or have the effect of discouraging a third party from attempting to acquire control of us. For example, our certificate of incorporation authorizes our Board of Directors to issue preferred shares, which could be issued as a defensive measure in response to a takeover proposal. These provisions could make it more difficult for a third party to acquire us even if an acquisition might be in the best interest of our stockholders.

3


Changes in Exchange Rates and Exchange Controls Could Result in a Substantial Loss to You

An investment in debt securities that are denominated in, or the payment of which is determined with reference to, a specified currency other than U.S. dollars entails significant risks that are not associated with a similar investment in a security denominated in U.S. dollars. Similarly, an investment in an indexed debt security, on which all or part of any payment due is based on a currency other than U.S. dollars, has significant risks that are not associated with a similar investment in non-indexed debt securities. Such risks include, without limitation:

 

 

 

the possibility of significant market changes in rates of exchange between U.S. dollars and the specified currency;

 

 

 

 

the possibility of significant changes in rates of exchange between U.S. dollars and the specified currency resulting from official redenominations or revaluation of such specified currency; and

 

 

 

 

the possibility of the imposition or modification of foreign exchange controls with respect to the specified currency.

Such risks generally depend on factors over which we have no control, such as:

 

 

 

economic events;

 

 

 

 

political events; and

 

 

 

 

the supply of and demand for the relevant currencies.

In recent years, rates of exchange between U.S. dollars and certain foreign currencies in which our notes may be denominated, and between these foreign currencies and other foreign currencies, have been highly volatile, and this volatility may continue in the future. Fluctuations in any particular exchange rate that have occurred in the past are not necessarily indicative, however, of fluctuations in the rate that may occur during the term of any debt security. Depreciation against the U.S. dollar of a foreign currency or foreign currency units in which a debt security is denominated would result in a decrease in the effective yield of such debt security below its coupon rate, and in certain circumstances could result in a loss to the investor on a U.S. dollar basis.

Governments have from time to time imposed, and may in the future impose, exchange controls that could affect exchange rates as well as the availability of a foreign currency for making payments on a debt security denominated in such currency. We can give no assurances that exchange controls will not restrict or prohibit payments of principal, premium or interest in any currency or currency unit. Similarly, in the case of indexed notes and depending on the specific terms of the notes, fluctuations of the relevant underlying currencies could result in no return or in a substantial loss to the investor.

Even if there are no actual exchange controls, it is possible that on an interest payment date or at maturity for any particular debt security, the foreign currency for such debt security would not be available to us to make payments of interest and principal then due. In that event, we will make such payments in U.S. dollars. You should consult your own financial and legal advisors as to the risks of an investment in notes denominated in a currency other than U.S. dollars. See “—The Unavailability of Currencies Could Result in a Substantial Loss to You” below.

The information set forth in this prospectus is directed to prospective purchasers of debt securities who are United States residents. We disclaim any responsibility to advise prospective purchasers who are residents of countries other than the United States regarding any matters that may affect the purchase or holding of, or receipt of payments of principal, premium or interest on, debt securities. Such persons should consult their own counsel and advisors with regard to such matters. Prospectus supplements relating to debt securities having a specified currency other than U.S. dollars will contain information concerning historical exchange rates for such specified currency, a description of the currency and any exchange controls as of the date of the accompanying prospectus supplement affecting such currency.

The Unavailability of Currencies Could Result in a Substantial Loss to You

Except as we specify in the accompanying prospectus supplement, if payment on a debt security is required to be made in a specified currency other than U.S. dollars and such currency is:

 

 

 

unavailable due to the imposition of exchange controls or other circumstances beyond our control;

 

 

 

 

no longer used by the government of the country issuing such currency; or

4


 

 

 

 

no longer used for the settlement of transactions by public institutions of, or within, the international banking community;

then all payments with respect to the debt security shall be made in U.S. dollars until such currency is again available or so used. The amount so payable on any date in such foreign currency shall be converted into U.S. dollars at a rate determined on the basis of the most recently available market exchange rate or as otherwise determined in good faith by us if the foregoing is impracticable. Any payment in respect of such debt security made under such circumstances in U.S. dollars will not constitute an event of default under the indenture under which such debt security will have been issued.

If the official unit of any component currency is altered by way of combination or subdivision, the number of units of that currency as a component shall be divided or multiplied in the same proportion. If two or more component currencies are consolidated into a single currency, the amounts of those currencies as components shall be replaced by an amount in such single currency equal to the sum of the amounts of the consolidated component currencies expressed in such single currency. If any component currency is divided into two or more currencies, the amount of that original component currency as a component shall be replaced by the amounts of such two or more currencies having an aggregate value on the date of division equal to the amount of the former component currency immediately before such division.

The debt securities will not provide for any adjustment to any amount payable as a result of:

 

 

 

any change in the value of the specified currency of those debt securities relative to any other currency due solely to fluctuations in exchange rates; or

 

 

 

 

any redenomination of any component currency of any composite currency, unless that composite currency is itself officially redenominated.

Currently, there are limited facilities in the United States for conversion of U.S. dollars into foreign currencies, and vice versa. In addition, banks do not generally offer non-U.S. dollar-denominated checking or savings account facilities in the United States. Accordingly, payments on debt securities made in a currency other than U.S. dollars will be made from an account at a bank located outside the United States, unless otherwise specified in the accompanying prospectus supplement.

Judgments in a Foreign Currency Could Result in a Substantial Loss to You

The debt securities will be governed by and construed in accordance with the laws of the State of New York. Courts in the United States customarily have not rendered judgments for money damages denominated in any currency other than U.S. dollars. A 1987 amendment to the Judiciary Law of New York State provides, however, that an action based on an obligation denominated in a currency other than U.S. dollars will be rendered in the foreign currency of the underlying obligation. If a debt security is denominated in a specified currency other than U.S. dollars, any judgment under New York law will be rendered in the foreign currency of the underlying obligation and converted into U.S. dollars at a rate of exchange prevailing on the date of entry of the judgment or decree.

Changes in the Value of Underlying Assets of Indexed Debt Securities Could Result in a Substantial Loss to You

An investment in indexed debt securities may have significant risks that are not associated with a similar investment in a debt instrument that:

 

 

 

has a fixed principal amount;

 

 

 

 

is denominated in U.S. dollars; and

 

 

 

 

bears interest at either a fixed rate or a floating rate based on nationally or internationally published interest rate references.

The risks of a particular indexed debt security will depend on the terms of that indexed debt security. Such risks may include, but are not limited to, the possibility of significant changes in the prices of:

 

 

 

the underlying assets;

 

 

 

 

another objective price; and

 

 

 

 

economic or other measures making up the relevant index.

5


Underlying assets could include:

 

 

 

currencies;

 

 

 

 

commodities;

 

 

 

 

securities (individual or baskets); and

 

 

 

 

indices.

The risks associated with a particular indexed debt security generally depend on factors over which we have no control and which cannot readily be foreseen. These risks include:

 

 

 

economic events;

 

 

 

 

political events; and

 

 

 

 

the supply of, and demand for, the underlying assets.

In recent years, currency exchange rates and prices for various underlying assets have been highly volatile. Such volatility may continue in the future. Fluctuations in rates or prices that have occurred in the past are not necessarily indicative, however, of fluctuations that may occur during the term of any indexed debt security.

In considering whether to purchase indexed debt securities, you should be aware that the calculation of amounts payable on indexed debt securities may involve reference to prices that are published solely by third parties or entities that are not regulated by the laws of the United States.

The risk of loss as a result of linking of principal or interest payments on indexed debt securities to an index and to the underlying assets can be substantial. You should consult your own financial and legal advisors as to the risks of an investment in indexed debt securities.

The Return on Indexed Notes May Be Below the Return on Similar Standard Debt Securities

Depending on the terms of an indexed note, as specified in the accompanying prospectus supplement, you may not receive any interest payments or receive only very low interest payments on such indexed note. Similarly, depending on the terms of an indexed note, you may receive at maturity a principal payment that is equal to, less than, or only marginally greater than your initial investment in the notes. As a result, the overall return on such indexed note may be less than the amount you would have earned by investing in a standard debt security that bears interest at a prevailing market fixed or floating rate.

An Indexed Note May Be Linked to Volatile Underlying Assets, Which May Adversely Affect Your Investment

Some underlying assets are highly volatile, which means that their value may increase or decrease significantly over a short period of time. It is impossible to predict the future performance of underlying assets based on historical performance. The amount of principal or interest that can be expected to become payable on an indexed note may vary substantially from time to time. Because the amounts payable with respect to an indexed note are generally calculated based on the price, value or level of the relevant underlying assets on a specified date or over a limited period of time, volatility in the underlying assets increases the risk that the return on the indexed note may be adversely affected by a fluctuation in the level of the relevant underlying assets.

The volatility of underlying assets may be affected by financial, political, military or economic events, including governmental actions, or by the activities of participants in the relevant markets. Any of these events or activities could adversely affect the value of an indexed note.

If You Purchase an Indexed Note, You Will Have No Rights with Respect to any Underlying Assets to which Such Indexed Note is Linked

Investing in an indexed note will not make you a holder of any of the underlying assets or any of their components. As a result, you will not have any voting rights, any right to receive dividends or other distributions or any other rights with respect to any of the underlying assets or any of their components.

6


RATIO OF EARNINGS TO FIXED CHARGES

The following table shows our historical ratios of earnings to fixed charges for the periods indicated:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Nine Months
Ended
September 30,

 

Year Ended December 31,

 

2009

 

2008

 

2007

 

2006

 

2005

  2004

Ratio of Earnings to Fixed Charges

 

 

 

2.09

   

 

 

1.96

   

 

 

2.24

   

 

 

2.54

   

 

 

2.55

   

 

 

2.77

 

In computing the ratio of earnings to fixed charges, “earnings” consist of pretax income from continuing operations, interest expense and other adjustments. Interest expense includes interest expense related to the cardmember lending activities, international banking operations, and charge card and other activities in our consolidated statements of income included in the documents incorporated by reference into this prospectus. Interest expense does not include interest on liabilities recorded in accordance with GAAP governing unrecognized tax benefits. Our policy is to classify such interest in income tax provision in the consolidated statements of income.

For purposes of computing “earnings,” other adjustments included adding the amortization of capitalized interest, the net loss of affiliates accounted for under the equity method whose debt is not guaranteed by the Company, the non-controlling interest in the earnings of majority-owned subsidiaries with fixed charges, and the interest component of rental expense, and subtracting undistributed net income of affiliates accounted for under the equity method.

“Fixed charges” consist of interest expense and other adjustments, including capitalized interest costs and the interest component of rental expense.

7


USE OF PROCEEDS

Except as may be otherwise set forth in the prospectus supplement accompanying this prospectus, we will use the net proceeds we receive from sales of these securities for general corporate purposes.

8


DESCRIPTION OF DEBT SECURITIES

The debt securities covered by this prospectus will be our direct unsecured obligations. The debt securities will be either senior debt securities that rank on an equal basis with all of our other senior unsecured and unsubordinated debt, or subordinated debt securities that rank junior to all of our senior unsecured debt.

The following description briefly sets forth certain general terms and provisions of the debt securities. The prospectus supplement for a particular series of debt securities will describe the particular terms of the debt securities we offer and the extent to which these general provisions may apply to that particular series of debt securities.

We will issue our senior debt securities under a senior debt indenture, dated as of August 1, 2007, between us and the Bank of New York Mellon (formerly known as The Bank of New York), as trustee. We will issue our subordinated debt securities under a subordinated debt indenture, dated as of August 1, 2007, between us and the Bank of New York Mellon (formerly known as The Bank of New York), as trustee. The senior debt indenture and the subordinated debt indenture are sometimes referred to in this prospectus individually as an “indenture” and collectively as the “indentures.” When we refer to the indentures in this prospectus, we mean the indentures as they have been supplemented.

The indentures, together with a form of supplemental indenture, have been filed with the SEC as exhibits to the registration statement of which this prospectus forms a part.

The following summaries of certain provisions of the indentures are not complete and are qualified in their entirety by reference to the indentures. You should read the indentures for further information. If we make no distinction in the following summaries between the senior debt securities and the subordinated debt securities or between the indentures, such summaries refer to any debt securities and either indenture. Any reference to particular sections or defined terms of the applicable indenture in any statement under this heading qualifies the entire statement and incorporates by reference the applicable definition into that statement.

Provisions Applicable to Both Senior and Subordinated Debt Securities

Issuances in Series

The indentures allow us to issue debt securities from time to time under either indenture without limitation as to amount. We may issue the debt securities in one or more series with the same or different terms. We need not issue all debt securities of the same series at the same time. All debt securities of the same series need not bear interest at the same rate or mature on the same date. Each indenture permits the appointment of a different trustee for each series of debt securities. If there is at any time more than one trustee under the indentures, the term “trustee” means each such trustee and will apply to each such trustee only with respect to those series of debt securities for which it is serving as trustee.

We may sell debt securities at a substantial discount below their stated principal amount that bear no interest or below market rates of interest. The accompanying prospectus supplement will describe the material federal income tax consequences and special investment considerations applicable to any such series of debt securities.

Unless otherwise specified for the debt securities denominated in a currency other than U.S. dollars or as otherwise specified in an accompanying prospectus supplement, we will issue debt securities only in fully registered form in denominations of $1,000 and integral multiples thereof in excess of that amount. The debt securities will be denominated in U.S. dollars and payments of principal of and premium, if any, and interest on the debt securities will be made in U.S. dollars unless we provide otherwise in an accompanying prospectus supplement. If any of the debt securities are to be denominated in a foreign currency or currency unit, or if the principal of and premium, if any, and any interest on any of the debt securities is to be payable at your option or at our option in a currency, including a currency unit, other than that in which such debt securities are denominated, we will provide additional information pertaining to such debt securities in an accompanying prospectus supplement.

9


The prospectus supplement relating to any series of debt securities being offered will contain the specific terms relating to the offering. These terms will include some or all of the following (to the extent not otherwise described in this prospectus):

 

 

 

the designation, aggregate principal amount and authorized denominations of the debt securities;

 

 

 

 

the percentage of the principal amount at which we will sell the debt securities and whether the debt securities will be “original issue discount” securities for U.S. federal income tax purposes;

 

 

 

 

the maturity date or the method for determining the maturity date;

 

 

 

 

the terms for exchange, if any, of the debt securities;

 

 

 

 

the interest rate or rates, if any, or the method for computing such rate or rates;

 

 

 

 

the interest payment dates or the method for determining such dates;

 

 

 

 

if other than U.S. dollars, the currency or currencies in which debt securities may be denominated and purchased and the currency or currencies (including composite currencies) in which principal, premium, if any, and any interest may be payable;

 

 

 

 

if the currency for which debt securities may be purchased or in which principal, premium, if any, and any interest may be payable is at the election of us or the purchaser, the manner in which such an election may be made and the terms of such election;

 

 

 

 

if other than denominations of $1,000 and integral multiples thereof in excess of that amount, the denominations in which the debt securities shall be issuable;

 

 

 

 

if other than cash, the type and amount of securities or other property, or the method by which such amount shall be determined, in which principal, premium, if any, and any interest may be payable at the election of us or the purchaser;

 

 

 

 

any mandatory or optional sinking fund, redemption or other similar terms;

 

 

 

 

any index or other method used to determine the amount of principal, premium, if any, and interest, if any, on the debt securities;

 

 

 

 

whether the debt securities are to be issued as individual certificates to each holder or in the form of global certificates held by a depositary on behalf of holders;

 

 

 

 

information describing any book-entry features;

 

 

 

 

if a trustee other than The Bank of New York Mellon is named for the debt securities, the name and corporate trust office of such trustee;

 

 

 

 

any material federal income tax consequences;

 

 

 

 

any material provisions of the indentures that do not apply to the debt securities; and

 

 

 

 

any other specific terms of the debt securities.

Interest and Interest Rates

Each debt security will bear interest from its date of issue or from the most recent date to which interest on that series of debt securities has been paid or duly provided for, at the annual rate or at a rate determined according to an interest rate formula, stated in the debt security and in an accompanying prospectus supplement, until the principal of the debt security is paid or made available for payment. We will pay interest, if any, on each interest payment date and at maturity or upon redemption or repayment, if any. Interest payment date means the date on which payments of interest on a debt security (other than payments on maturity) are to be made. Maturity means the date on which the principal of a debt security becomes due and payable, whether at the stated maturity or by declaration of acceleration or otherwise. Stated maturity means the date specified in a debt security as the date on which principal of the debt security is due and payable. Any debt security that has a specified currency of pounds sterling will mature in compliance with the regulations the Bank of England may promulgate from time to time.

We will pay interest to the person in whose name a debt security is registered at the close of business on the regular record date next preceding the applicable interest payment date. Regular record date means the date on which a debt security must be held in order for the holder to receive an interest payment on

10


the next interest payment date. However, we will pay interest at maturity or upon redemption or repayment to the person to whom we pay the principal. The first payment of interest on any debt security originally issued between a regular record date and an interest payment date will be made on the interest payment date following the next succeeding regular record date to the registered owner on such next regular record date.

Unless we specify otherwise in an accompanying prospectus supplement, the interest payment dates and the regular record dates for fixed rate debt securities shall be described below under “Fixed Rate Debt Securities.” The interest payment dates for floating rate debt securities shall be as indicated in an accompanying prospectus supplement, and unless we specify otherwise in an accompanying prospectus supplement, each regular record date for a floating rate debt security will be the fifteenth day (whether or not a business day) next preceding each interest payment date.

Each debt security will bear interest either at a fixed rate or a floating rate determined by reference to an interest rate formula that may be adjusted by a spread or spread multiplier, if any. Spread means the number of basis points, if any, to be added or subtracted to the Commercial Paper Rate, the Federal Funds Rate, the CD Rate, LIBOR, EURIBOR, the Prime Rate, the Treasury Rate or any other interest rate index in effect from time to time with respect to a debt security, which amount will be set forth in such debt security and the related accompanying prospectus supplement. Spread multiplier means the percentage by which the Commercial Paper Rate, the Federal Funds Rate, the CD Rate, LIBOR, EURIBOR, the Prime Rate, the Treasury Rate or any other interest rate index in effect from time to time with respect to a debt security is to be multiplied, which amount will be set forth in such debt security and the related accompanying prospectus supplement. Any floating rate debt security may also have either or both of the following: (1) a maximum numerical interest rate limitation, or ceiling, on the rate of interest that may accrue during any interest period; and (2) a minimum numerical interest rate limitation, or floor, on the rate of interest that may accrue during any interest period.

The accompanying prospectus supplement will designate one of the following interest rate bases as applicable to each debt security:

 

 

 

a fixed rate per year, in which case the debt security will be a fixed rate debt security;

 

 

 

 

the Commercial Paper Rate, in which case the debt security will be a Commercial Paper Rate debt security;

 

 

 

 

the Federal Funds Rate, in which case the debt security will be a Federal Funds Rate debt security;

 

 

 

 

the CD Rate, in which case the debt security will be a CD Rate debt security;

 

 

 

 

LIBOR, in which case the debt security will be a LIBOR debt security;

 

 

 

 

EURIBOR, in which case the debt security will be a EURIBOR debt security;

 

 

 

 

the Prime Rate, in which case the debt security will be a Prime Rate debt security;

 

 

 

 

the Treasury Rate, in which case the debt security will be a Treasury Rate debt security; or

 

 

 

 

such other interest rate formula as is set forth in an accompanying prospectus supplement.

We will specify in the accompanying prospectus supplement for each floating rate debt security the applicable index maturity for the debt security. Index maturity means the period of time designated by us as the representative maturity of the instrument or obligation with respect to which the interest rate basis or bases will be calculated as set forth in a floating rate debt security bearing interest at one of those rates and in the accompanying prospectus supplement.

Fixed Rate Debt Securities

Each fixed rate debt security will bear interest from its date of issue at the annual rate stated on the debt security. Unless we indicate otherwise in an accompanying prospectus supplement, the interest payment dates for the fixed rate debt securities will be on February 1 and August 1 of each year and the regular record dates will be on January 15 and July 15 of each year. Unless we specify otherwise in an accompanying prospectus supplement, interest on fixed rate debt securities will be computed and paid on the basis of a 360-day year of twelve 30-day months.

11


Floating Rate Debt Securities

The interest rate on each floating rate debt security will be equal to either (1) the interest rate calculated by reference to the specified interest rate formula (as specified in an accompanying prospectus supplement) plus or minus the spread, if any, or (2) the interest rate calculated by reference to the specified interest rate formula multiplied by the spread multiplier, if any. We will specify in an accompanying prospectus supplement the interest rate basis and the spread or spread multiplier, if any, and the maximum or minimum interest rate limitation, if any, applicable to each floating rate debt security. In addition, such accompanying prospectus supplement may contain particulars as to the calculation agent, calculation dates, index maturity, initial interest rate, interest determination dates, interest payment dates, regular record dates and interest reset dates with respect to such debt security.

Except as provided below, interest on floating rate debt securities will be payable on the maturity date and:

 

 

 

in the case of floating rate debt securities with a daily, weekly or monthly interest reset date (as defined below), on the third Wednesday of each month or on the third Wednesday of March, June, September and December as specified in an accompanying prospectus supplement;

 

 

 

 

in the case of floating rate debt securities with a quarterly interest reset date, on the third Wednesday of March, June, September and December of each year as specified in an accompanying prospectus supplement;

 

 

 

 

in the case of floating rate debt securities with a semi-annual interest reset date, on the third Wednesday of two months of each year as specified in an accompanying prospectus supplement; and

 

 

 

 

in the case of floating rate debt securities with an annual interest reset date, on the third Wednesday of one month of each year as specified in an accompanying prospectus supplement.

If any interest payment date for any floating rate debt security would otherwise be a day that is not a business day for that floating rate debt security, the interest payment date for that floating rate debt security shall be postponed to the next day that is a business day for that floating rate debt security, except that in the case of a LIBOR debt security or a EURIBOR debt security, if such day falls in the next calendar month, the interest payment date shall be the immediately preceding day that is a business day. If the maturity date of a floating rate debt security falls on a day that is not a business day, the payment of principal, premium, if any, and interest, if any, will be made on the next succeeding business day, and we will not pay any additional interest for the period from and after the maturity date.

As used in this prospectus, business day means:

 

 

 

with respect to any payment, each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in the Borough of Manhattan, New York City are authorized or required by law or executive order to close;

 

 

 

 

when used for any other purpose, each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in the Borough of Manhattan, New York City, or in the city in which the corporate trust office of the trustee is located, are authorized or required by law or executive order to close;

 

 

 

 

for debt securities, the interest rate of which is based on LIBOR only, such day shall also be a day on which dealings in deposits in U.S. dollars are transacted in the London interbank market (a “London Business Day”);

 

 

 

 

for debt securities, the interest rate of which is based on EURIBOR only, such day shall be any day on which the Trans-European Automated Real-Time Gross Settlement Express Transfer system, or TARGET, is open; and

 

 

 

 

for debt securities having a specified currency other than U.S. dollars only, any day that, in the capital city of the country issuing the specified currency, except for Australian dollars or Canadian dollars, which will be based on the cities of Sydney or Toronto, respectively, is not a day on which banking institutions are authorized or obligated to close, or for euros, any day which is not a day on which TARGET is closed.

12


The rate of interest on each floating rate debt security will be reset on the interest reset date that will be weekly, monthly, quarterly, semi-annually or annually, as we specify in an accompanying prospectus supplement. The interest reset date will be:

 

 

 

in the case of floating rate debt securities (other than Treasury Rate debt securities) that reset weekly, the Wednesday of each week;

 

 

 

 

in the case of Treasury Rate debt securities that reset weekly, the Tuesday of each week;

 

 

 

 

in the case of floating rate debt securities that reset monthly, the third Wednesday of each month;

 

 

 

 

in the case of floating rate debt securities that reset quarterly, the third Wednesday of March, June, September and December;

 

 

 

 

in the case of floating rate debt securities that reset semi-annually, the third Wednesday of two months of each year, as specified in an accompanying prospectus supplement, and in the case of floating rate debt securities that reset annually, the third Wednesday of one month of each year, as specified in an accompanying prospectus supplement;

However, in each case the interest rate in effect from the date of issue to the first interest reset date with respect to a floating rate debt security will be the initial interest rate set forth in an accompanying prospectus supplement. If any interest reset date for any floating rate debt security would otherwise be a day that is not a business day for that floating rate debt security, the interest reset date for that floating rate debt security shall be postponed to the next day that is a business day for that floating rate debt security, except that in the case of a LIBOR debt security or a EURIBOR debt security, if such business day is in the next succeeding calendar month, the interest reset date shall be the immediately preceding business day.

The interest rate applicable to each interest accrual period beginning on an interest reset date will be the rate determined on the calculation date, if any, by reference to the interest determination date. Calculation date means the date, if any, on which the calculation agent (as defined below) is to calculate an interest rate for a floating rate debt security.

Unless otherwise specified in the accompanying prospectus supplement, the calculation date, where applicable, pertaining to any interest determination date will be the earlier of (a) the tenth calendar day after that interest determination date or, if such day is not a business day, the next succeeding business day or (b) the business day preceding the applicable interest payment date or maturity date, as the case may be. Calculation agent means the agent we appoint to calculate interest rates on floating rate debt securities. The calculation agent will be The Bank of New York Mellon unless we specify otherwise in an accompanying prospectus supplement.

The interest determination date pertaining to an interest reset date will be:

 

 

 

the second business day preceding such interest reset date for (1) a Commercial Paper Rate debt security, (2) a Federal Funds Rate debt security, (3) a CD Rate debt security or (4) a Prime Rate debt security;

 

 

 

 

the second business day preceding such interest reset date for a LIBOR debt security or a EURIBOR debt security; or

 

 

 

 

the day of the week in which such interest reset date falls on which Treasury bills would normally be auctioned for a Treasury Rate debt security.

Treasury bills are usually sold at auction on Monday of each week, unless that day is a legal holiday, in which case the auction is usually held on the following Tuesday, except that such auction may be held on the preceding Friday. If, as the result of a legal holiday, an auction is held on the preceding Friday, such Friday will be the interest determination date for the Treasury Rate debt security pertaining to the interest reset date occurring in the next succeeding week. If an auction date shall fall on any interest reset date for a Treasury Rate debt security, then such interest reset date shall instead be the first business day immediately following such auction date. Unless otherwise specified in the accompanying prospectus supplement, the interest determination date pertaining to a floating rate note, the interest rate of which is determined with reference to two or more interest rate bases, will be the latest business day which is at least two business days prior to each interest reset date for such floating rate note. Each interest rate basis will be determined and compared on such date, and the applicable interest rate will take effect on the related interest reset date, as specified in the accompanying prospectus supplement.

13


Unless we specify otherwise in an accompanying prospectus supplement, the interest payable on each interest payment date or at maturity for floating rate debt securities will be the amount of interest accrued from and including the issue date or from and including the last interest payment date to which interest has been paid, as the case may be, to, but excluding, such interest payment date or the date of maturity, as the case may be.

Accrued interest from the date of issue or from the last date to which interest has been paid is calculated by multiplying the face amount of a debt security by an accrued interest factor. This accrued interest factor is computed by adding the interest factors calculated for each day from and including the later of (a) the date of issue and (b) the last day to which interest has been paid or duly provided for to but excluding the last date for which accrued interest is being calculated. The interest factor (expressed as a decimal rounded to the nearest one hundred-thousandth of a percentage point ( e.g. , 9.876544% and 9.876545% being rounded to 9.87654% and 9.87655%, respectively)) for each such day is computed by dividing the interest rate (expressed as a decimal rounded to the nearest one hundred-thousandth of a percentage point) applicable to such date by 360, in the case of Commercial Paper Rate debt securities, Federal Funds Rate debt securities, CD Rate debt securities, LIBOR debt securities, EURIBOR debt securities and Prime Rate debt securities, or by the actual number of days in the year, in the case of Treasury Rate debt securities. All dollar amounts used in or resulting from calculations on floating rate debt securities will be rounded to the nearest cent with one half cent being rounded upward.

The calculation agent will, upon the request of the holder of any floating rate debt security, provide the interest rate then in effect and, if determined, the interest rate that will become effective as a result of a determination made on the most recent interest determination date with respect to such debt security. For purposes of calculating the rate of interest payable on floating rate debt securities, we will enter into an agreement with the calculation agent.

In addition to any maximum interest rate that may be applicable to any floating rate debt security, the interest rate on the floating rate debt securities will in no event be higher than the maximum rate permitted by New York law as the same may be modified by United States law of general application. Under present New York law, the maximum rate of interest, with few exceptions, is 25% per year (calculated on a simple interest basis). This limit only applies to obligations that are less than $2,500,000.

Commercial Paper Rate Debt Securities

A Commercial Paper Rate debt security will bear interest at an interest rate calculated with reference to the Commercial Paper Rate and the spread or spread multiplier, if any, that we specify in the Commercial Paper Rate debt security and in an accompanying prospectus supplement.

Unless we indicate otherwise in an accompanying prospectus supplement, Commercial Paper Rate for any interest determination date will be the money market yield (calculated as described below) of the rate on that date for commercial paper having the index maturity designated in an accompanying prospectus supplement as such rate is published by the Federal Reserve in “Statistical Release H.15(519), Selected Interest Rates” or any successor publication of the Federal Reserve, to which we refer as “H.15(519),” under the heading “Commercial Paper—Nonfinancial.”

The following procedures will be followed if the Commercial Paper Rate cannot be determined as described above:

 

 

 

In the event that such rate is not published prior to 3:00 p.m., New York City time, on the applicable calculation date, then the Commercial Paper Rate shall be the money market yield of the rate on such date for commercial paper having the index maturity designated in an accompanying prospectus supplement as published in the daily update of H.15(519), available through the worldwide website of the Federal Reserve at http://www.federalreserve.gov/releases/H15/update, or any successor site or publication, to which we refer as “H.15 Daily Update,” under the heading “Commercial Paper—Nonfinancial” (with an index maturity of one month or three months being deemed to be equivalent to an index maturity of 30 days or 90 days, respectively).

 

 

 

 

If by 3:00 p.m., New York City time, on such calculation date such rate is not yet published in H.15(519) or H.15 Daily Update, then the Commercial Paper Rate for such interest determination date shall be calculated by the calculation agent and shall be the money market yield of the

14


 

 

 

 

arithmetic mean (each as rounded to the nearest one hundred-thousandth of a percentage point) of the offered rates of three leading dealers of commercial paper in New York City selected by the calculation agent, after consultation with us, as of 11:00 a.m., New York City time, on such date, for commercial paper having the index maturity designated in an accompanying prospectus supplement placed for a non-financial issuer whose bond rating is “AA,” or the equivalent, from a nationally recognized securities rating agency.

 

 

 

 

If the dealers selected by the calculation agent are not quoting as mentioned in the previous sentence, the Commercial Paper Rate with respect to such interest determination date will be the same as the Commercial Paper Rate for the immediately preceding interest reset period (or, if there was no preceding interest reset period, the rate of interest will be the initial interest rate).

Money market yield will be a yield (expressed as a percentage rounded to the nearest one hundred-thousandth of a percentage point) calculated in accordance with the following formula:

 

 

 

 

 

 

 

 

 

Money Market Yield

 

=

 

     D  ´  360     
360 – (D 
´  M)

 

 

 

=

   

 

 

100

    

where “D” refers to the annual rate for the commercial paper quoted on a bank discount basis and expressed as a decimal, and “M” refers to the actual number of days in the interest period for which interest is being calculated.

Federal Funds Rate Debt Securities

A Federal Funds Rate debt security will bear interest at an interest rate calculated with reference to the Federal Funds Rate and the spread or spread multiplier, if any, that we specify in the Federal Funds Rate debt security and in an accompanying prospectus supplement.

Unless we indicate otherwise in an accompanying prospectus supplement, Federal Funds Rate for any interest determination date will be the rate on that date for federal funds as published in H.15(519) under the heading “Federal Funds (Effective),” as such rate is displayed on Reuters 3000 Xtra Service (“Reuters”) (or any successor service) on page FEDFUNDS1 (or any page which may replace such page).

The following procedures will be followed if the Federal Funds Rate cannot be determined as described above:

 

 

 

If that rate is not published by 3:00 p.m., New York City time, on the applicable calculation date, the Federal Funds Rate will be the rate on such interest determination date as published in H.15 Daily Update under the heading “Federal Funds (Effective).”

 

 

 

 

If such rate is not published in either H.15(519) or H.15 Daily Update by 3:00 p.m., New York City time, on the applicable calculation date, then the Federal Funds Rate for such interest determination date will be calculated by the calculation agent and will be the arithmetic mean (rounded to the nearest one hundred- thousandth of a percentage point) of the rates as of 9:00 a.m., New York City time, on such date for the last transaction in overnight United States dollar federal funds arranged by three leading brokers of federal funds transactions in New York City selected by the calculation agent, after consultation with us.

 

 

 

 

If the brokers selected by the calculation agent are not quoting as mentioned in the previous sentence, the Federal Funds Rate with respect to such interest determination date will be the same as the Federal Funds Rate for the immediately preceding interest reset period (or, if there was no preceding interest reset period, the rate of interest will be the initial interest rate).

CD Rate Debt Securities

A CD Rate Note will bear interest at an interest rate calculated with reference to the CD Rate and the spread or spread multiplier, if any, that we specify in the CD Rate debt security and in an accompanying prospectus supplement.

Unless we indicate otherwise in an accompanying prospectus supplement, the CD Rate for any interest determination date will be the rate on that date for negotiable certificates of deposit having the index maturity designated in an accompanying prospectus supplement as published in H.15(519) under the heading “CDs (Secondary Market).”

15


The following procedures will be followed if the CD Rate cannot be determined as described above:

 

 

 

If that rate is not published by 3:00 p.m., New York City time, on the applicable calculation date, the CD Rate will be the rate on such interest determination date for negotiable certificates of deposit of the index maturity designated in an accompanying prospectus supplement as published in H.15 Daily Update under the heading “CDs (Secondary Market).”

 

 

 

 

If such rate is not published in either H.15(519) or H.15 Daily Update by 3:00 p.m., New York City time, on such calculation date, then the CD Rate on such interest determination date will be calculated by the calculation agent and will be the arithmetic mean (each as rounded to the nearest one hundred-thousandth of a percentage point) of the secondary market offered rates as of 10:00 a.m., New York City time, on such date, of three leading nonbank dealers in negotiable U.S. dollar certificates of deposit in New York City selected by the calculation agent, after consultation with us, for negotiable certificates of deposit of major United States money market banks (in the market for negotiable certificates of deposit) with a remaining maturity closest to the index maturity designated in an accompanying prospectus supplement in an amount that is representative for a single transaction in that market at that time.

 

 

 

 

If the dealers selected by the calculation agent are not quoting as mentioned in the previous sentence, the CD Rate with respect to such interest determination date will be the same as the CD Rate for the immediately preceding interest reset period (or, if there was no preceding interest reset period, the rate of interest will be the initial interest rate).

LIBOR Debt Securities

A LIBOR debt security will bear interest at an interest rate calculated with reference to LIBOR and the spread or spread multiplier, if any, that we specify in the LIBOR debt security and in an accompanying prospectus supplement.

Unless we indicate otherwise in an accompanying prospectus supplement, LIBOR will be determined by the calculation agent in accordance with the following provisions in the order set forth below:

 

 

 

On each interest determination date, LIBOR will be determined on the basis of the offered rate for deposits in the London interbank market in the index currency (as defined below) having the index maturity designated in an accompanying prospectus supplement commencing on the second business day immediately following such interest determination date that appears on the Designated LIBOR Page (as defined below) or a successor reporter of such rates selected by the calculation agent and acceptable to us, as of 11:00 a.m., London time, on such interest determination date. If no rate appears on the Designated LIBOR Page, LIBOR in respect of such interest determination date will be determined as if the parties had specified the rate described in the following paragraph.

 

 

 

 

With respect to an interest determination date relating to a LIBOR debt security to which the last sentence of the previous paragraph applies, the calculation agent will request the principal London offices of each of four major reference banks (which may include any underwriters, agents or their affiliates) in the London interbank market selected by the calculation agent after consultation with us to provide the calculation agent with its offered quotation for deposits in the index currency for the period of the index maturity designated in the accompanying prospectus supplement commencing on the second London business day immediately following such interest determination date to prime banks in the London interbank market at approximately 11:00 a.m., London time, on such interest determination date and in a principal amount that is at least U.S. $1,000,000 or the approximate equivalent in such index currency that is representative for a single transaction in such index currency in such market at such time. If at least two such quotations are provided, LIBOR determined on such interest determination date will be the arithmetic mean of such quotations. If fewer than two quotations are provided, LIBOR determined on such interest determination date will be the arithmetic mean of the rates quoted at approximately 11:00 a.m. (or such other time specified in the accompanying prospectus supplement), in the principal financial center of the country of the specified index currency, on that interest determination date for loans made in the index currency to leading European banks having the index maturity designated in the accompanying prospectus supplement commencing on the second London business day immediately following such interest determination date and in a principal amount that is representative for a single transaction in that

16


 

 

 

 

index currency in that market at such time by three major reference banks (which may include any underwriters, agents or their affiliates) in such principal financial center selected by the calculation agent after consultation with us; provided, however, that if fewer than three reference banks so selected by the calculation agent are quoting such rates as mentioned in this sentence, LIBOR with respect to such interest determination date will be the same as LIBOR in effect for the immediately preceding interest reset period (or, if there was no preceding interest reset period, the rate of interest will be the initial interest rate).

“Index currency” means the currency (including currency units and composite currencies) specified in the accompanying prospectus supplement as the currency with respect to which LIBOR will be calculated. If no currency is specified in the accompanying prospectus supplement, the index currency will be
U.S. dollars.

“Designated LIBOR Page” means the display on page LIBOR01 (or any other page specified in the accompanying prospectus supplement) of Reuters (or any successor service) for the purpose of displaying the London interbank offered rates of major banks for the applicable index currency (or such other page as may replace that page on that service for the purpose of displaying such rates).

EURIBOR Debt Securities

Each EURIBOR debt security will bear interest for each interest reset period at an interest rate equal to EURIBOR and any spread or spread multiplier as specified in the debt security and an accompanying prospectus supplement.

The calculation agent will determine EURIBOR on each EURIBOR determination date. The EURIBOR determination date is the second business day prior to the interest reset date for each interest reset period.

On a EURIBOR determination date, the calculation agent will determine EURIBOR for each interest reset period as follows.

The calculation agent will determine the offered rates for deposits in euros for the period of the index maturity specified in an accompanying prospectus supplement, commencing on the interest reset date, which appears on page EURIBOR01 on Reuters or any successor service as of 11:00 a.m., Brussels time, on that interest determination date.

If EURIBOR cannot be determined on a EURIBOR determination date as described above, then the calculation agent will determine EURIBOR as follows:

 

 

 

The calculation agent for the EURIBOR debt security will select four major banks in the euro-zone interbank market.

 

 

 

 

The calculation agent will request that the principal euro-zone offices of those four selected banks provide their offered quotations to prime banks in the euro-zone interbank market at approximately 11:00 a.m., Brussels time, on the EURIBOR determination date. These quotations shall be for deposits in euros for the period of the specified index maturity, commencing on the interest reset date. Offered quotations must be based on a principal amount equal to at least 1,000,000 or the approximate equivalent in U.S. dollars that is representative of a single transaction in such market at that time.

 

(1)

 

 

 

If two or more quotations are provided, EURIBOR for the interest reset period will be the arithmetic mean of those quotations.

 

(2)

 

 

 

If less than two quotations are provided, the calculation agent will select three major banks in the euro-zone after consultation with us and follow the steps in the two bullet points below:

 

 

 

 

The calculation agent will then determine EURIBOR for the interest reset period as the arithmetic mean of rates quoted by those three major banks in the euro-zone to leading European banks at approximately 11:00 a.m., Brussels time, on the EURIBOR determination date. The rates quoted will be for loans in euros, for the period of the specified index maturity, commencing on the interest reset date. Rates quoted must be based on a principal amount of at least 1,000,000 or the approximate equivalent in U.S. dollars that is representative of a single transaction in such market at that time.

17


 

 

 

 

If the banks so selected by the calculation agent are not quoting rates as described above, EURIBOR for the interest reset period will be the same as for the immediately preceding interest reset period. If there was no preceding interest reset period, the rate of interest will be the initial interest rate.

“Euro-zone” means the region comprised of the member states of the European Union that adopted the Euro as their single currency in accordance with the Treaty establishing the European Community, as amended.

Prime Rate Debt Securities

A Prime Rate debt security will bear interest at an interest rate calculated with reference to the Prime Rate and the spread or spread multiplier, if any, that we specify in the Prime Rate debt security and in an accompanying prospectus supplement.

Unless we indicate otherwise in an accompanying prospectus supplement, Prime Rate for any interest determination date will be the rate on that date as published in H.15(519) under the heading “Bank Prime Loan.”

The following procedures will be followed if the Prime Rate cannot be determined as described above:

 

 

 

If the rate is not published by 3:00 p.m., New York City time, on the calculation date, then the Prime Rate will be the rate on that interest determination date as published in H.15 Daily Update, or such other recognized electronic source used for the purpose of displaying such rate, under the heading “Bank Prime Loan.”

 

 

 

 

If the rate is not published in either H.15(519) or the H.15 Daily Update by 3:00 p.m., New York City time, on the calculation date, then the calculation agent will determine the Prime Rate to be the arithmetic mean of the rates of interest publicly announced by each bank that appears on the Reuters page USPRIME1 (“Reuters page USPRIME1”) as that bank’s prime rate or base lending rate as in effect as of 11:00 a.m., New York City time, for that interest determination date as quoted on Reuters page USPRIME1 Page on that interest determination date.

 

 

 

 

If fewer than four rates appear on Reuters page USPRIME1 Page for that interest determination date, the calculation agent will determine the Prime Rate to be the arithmetic mean of the prime rates quoted on the basis of the actual number of days in the year divided by 360 as of the close of business on that interest determination date by three major banks in New York City selected by the calculation agent, after consultation with us, from which quotations are requested.

 

 

 

 

If the banks so selected by the calculation agent are not quoting rates as described above, the Prime Rate with respect to that interest determination date will be the same as the Prime Rate for the immediately preceding interest reset period (or, if there was no preceding interest reset period, the rate of interest will be the initial interest rate).

Reuters Screen USPRIME 1 Page means the display designated as page “USPRIME 1” of the Reuters Monitor Money Rates Service, or any successor service, or any other page that may replace the USPRIME 1 Page on that service for the purpose of displaying prime rates or base lending rates of major United States banks.

Treasury Rate Debt Securities

A Treasury Rate debt security will bear interest at an interest rate calculated with reference to the Treasury Rate and the spread or spread multiplier, if any, that we specify in the Treasury Rate debt security and in an accompanying prospectus supplement.

Unless we indicate otherwise in an accompanying prospectus supplement, the Treasury Rate for any interest determination date will be the rate applicable to the auction held on such date of direct obligations of the United States (“Treasury bills”) having the index maturity specified in the accompanying prospectus supplement as such rate appears opposite the caption “INVEST RATE” on the display on Reuters (or any successor service) on page USAUCTION10 (or any other page as may replace such page) or page USAUCTION11 (or any other page as may replace such page).

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The following procedures will be followed if the Treasury Rate cannot be determined as above:

 

 

 

If the above rate is not published by 3:00 p.m., New York City time, on the calculation date, the Treasury Rate will be the bond equivalent yield (as defined below) of the rate for such Treasury bills as published in H.15 Daily Update, or such other recognized electronic source used for the purpose of displaying such rate, under the heading “U.S. Government Securities/Treasury Bills/Auction High.”

 

 

 

 

In the event that the results of the auction of Treasury bills having the index maturity specified in an accompanying prospectus supplement are not published or reported as provided above by 3:00 p.m., New York City time, on such calculation date, or if no such auction is held on such interest determination date, then the calculation agent will determine the Treasury Rate to be the bond equivalent yield of the auction rate of such Treasury bills as announced by the U.S. Department of the Treasury.

 

 

 

 

In the event that the auction rate of Treasury bills having the index maturity designated in the accompanying prospectus supplement is not so announced by the U.S. Department of the Treasury, or if no such auction is held, then the Treasury rate will be the bond equivalent yield of the rate on that interest determination date of Treasury bills having the index maturity designated in the accompanying prospectus supplement as published in H.15(519) under the heading “U.S. Government Securities/Treasury Bills/Secondary Market” or, if not published by 3:00 p.m., New York City time, on the related calculation date, the rate on that interest determination date of such Treasury bills as published in H.15 Daily Update, or such other recognized electronic source used for the purpose of displaying such rate, under the heading “U.S. Government Securities/Treasury Bills/Secondary Market.”

 

 

 

 

In the event such rate is not published by 3:00 p.m., New York City time, on such calculation date, then the calculation agent will calculate the Treasury rate, which will be a bond equivalent yield of the arithmetic mean of the secondary market bid rates, as of approximately 3:30 p.m., New York City time, on such interest determination date, of three leading primary U.S. government securities dealers selected by the calculation agent after consultation with us for the issue of Treasury bills with a remaining maturity closest to the index maturity designated in the accompanying prospectus supplement.

 

 

 

 

If the dealers selected by the calculation agent are not quoting bid rates as mentioned in this sentence, the Treasury rate with respect to the interest determination date will be the same as the Treasury rate in effect for the immediately preceding interest reset period (or, if there was no preceding interest reset period, the rate of interest will be the initial interest rate).

Bond Equivalent Yield means a yield (expressed as a percentage) calculated as follows:

 

 

 

 

 

 

 

 

 

Bond Equivalent Yield

 

=

 

     D  ´  N     
360 – (D 
´  M)

 

 

 

=

   

 

 

100

    

where “D” refers to the applicable annual rate for the Treasury bills quoted on a bank discount basis and expressed as a decimal, “N” refers to 365 or 366, as the case may be, and “M” refers to the actual number of days in the interest period for which interest is being calculated.

Amortizing Debt Securities

We may from time to time offer amortizing debt securities on which a portion or all of the principal amount is payable prior to stated maturity:

 

 

 

in accordance with a schedule;

 

 

 

 

by application of a formula; or

 

 

 

 

based on an index.

Further information concerning additional terms and conditions of any amortizing debt securities, including terms of repayment of such debt securities, will be set forth in the accompanying prospectus supplement.

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Indexed Debt Securities

We may also issue indexed debt securities on which the principal amount payable at maturity, premium, if any, and/or interest payments are determined with reference to the price or prices of specified commodities (including baskets of commodities), securities (including baskets of securities), interest rate indices, interest rate or exchange rate swap indices, the exchange rate of one or more specified currencies (including baskets of currencies or a composite currency) relative to an indexed currency, or such other price or exchange rate or other financial or non-financial index or indices as we may specify in such indexed debt security and in the accompanying prospectus supplement for the indexed debt security. Holders of indexed debt securities may receive a principal amount at maturity that is greater than, equal to, or less than the face amount of the indexed debt securities depending upon the relative value at maturity of the specified index. We will provide information on the method for determining the principal payable at maturity, premium, if any and/or interest payments in an accompanying prospectus supplement for the indexed debt securities. Certain historical information, where applicable, with respect to the specified indexed item or items and tax considerations associated with an investment in indexed debt securities will also be provided in an accompanying prospectus supplement.

Notwithstanding anything to the contrary contained herein or in the accompanying prospectus, for purposes of determining the rights of a holder of an indexed debt security in respect of voting for or against amendments to the indentures and modifications and the waiver of rights thereunder, the principal amount of such indexed debt security shall be deemed to be equal to the face amount thereof upon issuance. The amount of principal payable at maturity will be specified in an accompanying prospectus supplement.

Original Issue Discount Debt Securities

We may issue original issue discount debt securities at an issue price (as specified in the accompanying prospectus supplement) that is less than 100% of the principal amount of such debt securities (i.e., par). Original issue discount debt securities may not bear any interest currently or may bear interest at a rate that is below market rates at the time of issuance. The difference between the issue price of an original issue discount debt security and par is referred to herein as the “discount.” In the event of redemption, repayment or acceleration of maturity of an original issue discount debt security, the amount payable to the holder of an original issue discount debt security will be equal to the sum of (a) the issue price (increased by any accruals of discount) and, in the event of any redemption by us of such original issue discount debt security (if applicable), multiplied by the initial redemption percentage specified in the accompanying prospectus supplement (as adjusted by the initial redemption percentage reduction, if applicable) and (b) any unpaid interest on such original issue discount debt security accrued from the date of issue to the date of such redemption, repayment or acceleration of maturity.

Unless otherwise specified in the accompanying prospectus supplement, for purposes of determining the amount of discount that has accrued as of any date on which a redemption, repayment or acceleration of maturity occurs for an original issue discount debt security, the discount will be accrued using a constant yield method. The constant yield will be calculated using a 30-day month, 360-day year convention, a compounding period that, except for the initial period (as defined below), corresponds to the shortest period between interest payment dates for the applicable original issue discount debt security (with ratable accruals within a compounding period), a coupon rate equal to the initial coupon rate applicable to such original issue discount debt security and an assumption that the maturity of such original issue discount debt security will not be accelerated. If the period from the date of issue to the initial interest payment date, or the initial period, for an original issue discount debt security is shorter than the compounding period for such original issue discount debt security, a proportionate amount of the yield for an entire compounding period will be accrued. If the initial period is longer than the compounding period, then such period will be divided into a regular compounding period and a short period with the short period being treated as provided in the preceding sentence. The accrual of the applicable discount may differ from the accrual of original issue discount for purposes of the Internal Revenue Code.

Certain original issue discount debt securities may not be treated as having original issue discount for federal income tax purposes, and debt securities other than original issue discount debt securities may be

20


treated as issued with original issue discount for federal income tax purposes. We refer you to “Certain U.S. Federal Income Tax Consequences.”

Payment

Unless otherwise specified in an accompanying prospectus supplement, principal and premium, if any, and interest, if any, on the debt securities will be payable initially at the principal corporate trust office of the trustee. At our option, payment of interest may be made, subject to collection, by check mailed to the holders of record at the address registered with the trustee.

If the principal of or premium, if any, and interest, if any, on any series of debt securities is payable in foreign currencies or if debt securities are sold for foreign currencies, the restrictions, elections, tax consequences, specific terms and other information with respect to such debt securities will be described in an accompanying prospectus supplement.

Redemption and Repayment

Unless we specify otherwise in an accompanying prospectus supplement, the debt securities will not be redeemable prior to their stated maturity. If we so specify in an accompanying prospectus supplement, the debt security will be redeemable on or after the date or dates set forth in such supplement, either in whole or from time to time in part, at our option, at a redemption price equal to 100% of the principal amount to be redeemed or at such other price or prices set forth in such prospectus supplement. We will pay interest accrued on a redeemed debt security to the date of redemption, and will give notice of redemption no more than 60 and not less than 30 days prior to the date of redemption. The debt securities will not be subject to any sinking fund or to any provisions for repayment at your option unless we specify otherwise in the accompanying prospectus supplement.

Modification of the Indenture

We may make modifications and amendments to the indentures with respect to one or more series of debt securities by supplemental indentures without the consent of the holders of those debt securities in the following instances:

 

 

 

to evidence the succession of another corporation to us and the assumption by such successor of our obligations under the indenture;

 

 

 

 

to add to or modify our covenants or events of default for the benefit of the holders of the debt securities;

 

 

 

 

to convey, transfer, assign, mortgage or pledge any property to or with the trustee;

 

 

 

 

to surrender any right or power conveyed by the indenture upon us;

 

 

 

 

to establish the form or terms of the debt securities of any series;

 

 

 

 

to cure any ambiguity or make any other provisions with respect to matters or questions arising under the indentures that will not adversely affect the interests of the holders in any material respect;

 

 

 

 

to modify, eliminate or add to the provisions of the indentures as necessary to qualify it under any applicable federal law;

 

 

 

 

to name, by supplemental indenture, a trustee other than The Bank of New York Mellon for a series of debt securities;

 

 

 

 

to provide for the acceptance of appointment by a successor trustee;

 

 

 

 

to add to or modify the provisions of the indentures to provide for the denomination of debt securities in foreign currencies;

 

 

 

 

to supplement any provisions of the indentures as is necessary to permit or facilitate the defeasance and discharge of any debt securities as described in this prospectus;

 

 

 

 

to prohibit the authentication and delivery of additional series of debt securities; or

21


 

 

 

 

to modify the provisions of the indentures provided that such modifications do not apply to any outstanding security.

Any other modifications or amendments of the indentures by way of supplemental indenture require the consent of the holders of a majority in principal amount of the debt securities at the time outstanding of each series affected. However, no such modification or amendment may, without the consent of the holder of each debt security affected thereby:

 

 

 

modify the terms of payment of principal, premium or interest;

 

 

 

 

reduce the percentage of holders of debt securities necessary to modify or amend the indentures or waive our compliance with any restrictive covenant; or

 

 

 

 

subordinate the indebtedness evidenced by the debt securities to any of our other indebtedness.

Events of Default, Notice and Waiver

The indentures provide holders of debt securities with remedies if we fail to perform specific obligations, such as making payments on the debt securities. You should review these provisions carefully in order to understand what constitutes an event of default under the indentures.

Unless otherwise stated in the accompanying prospectus supplement, an event of default with respect to any series of debt securities will be:

 

 

 

default in the payment of the principal of, or premium, if any, on any debt security of that series when it is due and payable;

 

 

 

 

default in making a sinking fund payment or analogous obligation, if any, when due and payable;

 

 

 

 

default for 30 days in the payment of an installment of interest, if any, on any debt security of that series;

 

 

 

 

default for 60 days after written notice to us in the performance of any other covenant in respect of the debt securities of that series;

 

 

 

 

certain events of bankruptcy, insolvency or reorganization, or court appointment of a receiver, liquidator or trustee of us or our property;

 

 

 

 

an event of default with respect to any other series of debt securities outstanding under the indentures or as defined in any other indenture or instrument under which we have outstanding any indebtedness for borrowed money, as a result of which indebtedness of us of at least $50,000,000 principal amount shall have been accelerated and that acceleration shall not have been annulled within 15 days after written notice thereof; and

 

 

 

 

any other event of default provided in or pursuant to the applicable resolution of our Board of Directors or the supplemental indenture under which that series of debt securities is issued.

An event of default with respect to a particular series of debt securities issued under the indentures does not necessarily constitute an event of default with respect to any other series of debt securities. The trustee may withhold notice to the holders of any series of debt securities of any default with respect to that series, except in the payment of principal, premium or interest, if it considers such withholding to be in the interests of the holders of that series.

If an event of default with respect to any series of debt securities has occurred and is continuing, the trustee or the holders of 25% in aggregate principal amount of the debt securities of that series may declare the principal, or in the case of discounted debt securities, such portion thereof as may be described in an accompanying prospectus supplement, of all the debt securities of that series to be due and payable immediately.

The indentures contain a provision entitling the trustee to be indemnified to its reasonable satisfaction by the holders before exercising any right or power under the indentures at the request of any of the holders. The indentures provide that the holders of a majority in principal amount of the outstanding debt securities of any series may direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust or power conferred upon the trustee with respect to the debt securities of that series. The right of a holder to institute a proceeding with respect to the

22


indentures is subject to certain conditions precedent including notice and indemnity to the trustee. However, the holder has an absolute right to receipt of principal and premium, if any, at stated maturity and interest on any overdue principal and interest or to institute suit for the enforcement thereof.

The holders of not less than a majority in principal amount of the outstanding debt securities of any series under the indentures may on behalf of the holders of all the debt securities of that series waive any past defaults, except a default in payment of the principal of or premium, if any, or interest, if any, on any debt security of that series and a default in respect of a covenant or provision of the indentures that cannot be amended or modified without the consent of the holder of each debt security affected.

We are required by the indentures to furnish to the trustee annual statements as to the fulfillment of our obligations under the indentures.

Defeasance of the Indentures and Debt Securities

The indentures permit us to be discharged from our obligations under the indentures and with respect to a particular series of debt securities if we comply with the following procedures. This discharge from our obligations is referred to in this prospectus as defeasance.

Unless an accompanying prospectus supplement states otherwise, if we deposit with the trustee sufficient cash and/or government securities to pay and discharge the principal and premium, if any, and interest, if any, to the date of maturity of such series of debt securities, then from and after the ninety-first day following such deposit:

 

 

 

we will be deemed to have paid and discharged the entire indebtedness on the debt securities of any series; and

 

 

 

   

our obligations under the indentures with respect to the debt securities of that series will cease to be in effect, except for certain obligations to register the transfer or exchange of the debt securities of that series, replace stolen, lost or mutilated debt securities of that series, maintain paying agencies and hold moneys for payment in trust.

The indentures also provides that the defeasance will not be effective unless we deliver to the trustee a written opinion of our counsel to the effect that holders of the debt securities subject to defeasance will not recognize gain or loss on those debt securities for federal income tax purposes solely as a result of the defeasance and that the holders of those debt securities will be subject to federal income tax in the same amounts and at the same times as would be the case if the defeasance had not occurred.

Following the defeasance, holders of the applicable debt securities would be able to look only to the trust fund for payment of principal and premium, if any, and interest, if any, on their debt securities.

Governing Law

The laws of the State of New York will govern the indentures and the debt securities.

Concerning the Trustee

The Bank of New York Mellon, the trustee under the indentures, provides corporate trust services to us. In addition, affiliates of the trustee provide substantial investment banking, bank and corporate trust services and extend credit to us and many of our subsidiaries. We and our affiliates may have other customary banking relationships (including other trusteeships) with the trustee.

Global Securities and Global Clearance and Settlement Procedures

We may issue debt securities under a book-entry system in the form of one or more global securities. We will register the global securities in the name of a depositary or its nominee and deposit the global securities with that depositary. Unless we state otherwise in the accompanying prospectus supplement, The Depository Trust Company, New York, New York, or DTC, will be the depositary if we use a depositary.

Following the issuance of a global security in registered form, the depositary will credit the accounts of its participants with the debt securities upon our instructions. Only persons who hold directly or indirectly through financial institutions that are participants in the depositary can hold beneficial interests in

23


the global securities. Because the laws of some jurisdictions require certain types of purchasers to take physical delivery of such securities in definitive form, you may encounter difficulties in your ability to own, transfer or pledge beneficial interests in a global security.

So long as the depositary or its nominee is the registered owner of a global security, we and the trustee will treat the depositary as the sole owner or holder of the debt securities for purposes of the applicable indenture. Therefore, except as set forth below, you will not be entitled to have debt securities registered in your name or to receive physical delivery of certificates representing the debt securities. Accordingly, you will have to rely on the procedures of the depositary and the participant in the depositary through whom you hold your beneficial interest in order to exercise any rights of a holder under the indenture. We understand that under existing practices, the depositary would act upon the instructions of a participant or authorize that participant to take any action that a holder is entitled to take.

Unless stated otherwise in an accompanying prospectus supplement, you may elect to hold interests in the global securities through either DTC (in the United States) or Clearstream Banking, société anonyme , which we refer to as Clearstream, Luxembourg, or Euroclear Bank, S.A./N.V., or its successor, as operator of the Euroclear System, which we refer to as Euroclear, (outside of the United States) if you are participants of such systems, or indirectly through organizations that are participants in such systems. Interests held through Clearstream, Luxembourg and Euroclear will be recorded on DTC’s books as being held by the U.S. depositary for each of Clearstream, Luxembourg and Euroclear, which U.S. depositaries will in turn hold interests on behalf of their participants’ customers’ securities accounts.

As long as the debt securities of a series are represented by the global securities, we will pay principal of and interest and premium on those securities to or as directed by DTC as the registered holder of the global securities. Payments to DTC will be in immediately available funds by wire transfer. DTC, Clearstream, Luxembourg or Euroclear, as applicable, will credit the relevant accounts of their participants on the applicable date. Neither we nor the trustee will be responsible for making any payments to participants or customers of participants or for maintaining any records relating to the holdings of participants and their customers, and you will have to rely on the procedures of the depositary and its participants. If an issue of debt securities is denominated in a currency other than the U.S. dollar, we will make payments of principal and any interest in the foreign currency in which the debt securities are denominated or in U.S. dollars. DTC has elected to have all payments of principal and interest paid in U.S. dollars unless notified by any of its participants through which an interest in the debt securities is held that it elects, in accordance with, and to the extent permitted by, the accompanying prospectus supplement and the relevant debt security, to receive payment of principal or interest in the foreign currency. On or prior to the third business day after the record date for payment of interest and 12 days prior to the date for payment of principal, a participant will be required to notify DTC of (a) its election to receive all, or the specified portion, of payment in the foreign currency and (b) its instructions for wire transfer of payment to a foreign currency account.

We have been advised by DTC, Clearstream, Luxembourg and Euroclear, respectively, as follows:

 

 

 

As to DTC : DTC has advised us that it is a limited-purpose trust company organized under the New York Banking Law, a “banking organization” within the meaning of the New York Banking Law, a member of the Federal Reserve System, a “clearing corporation” within the meaning of the New York Uniform Commercial Code, and a “clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act. DTC holds securities deposited with it by its participants and facilitates the settlement of transactions among its participants in such securities through electronic computerized book-entry changes in accounts of the participants, thereby eliminating the need for physical movement of securities certificates. DTC’s participants include securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations, some of whom (and/or their representatives) own DTC. Access to DTC’s book- entry system is also available to others, such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a participant, either directly or indirectly.

According to DTC, the foregoing information with respect to DTC has been provided to the financial community for informational purposes only and is not intended to serve as a representation, warranty or contract modification of any kind.

24


 

 

 

 

As to Clearstream, Luxembourg : Clearstream, Luxembourg has advised us that it was incorporated as a limited liability company under Luxembourg law. Clearstream, Luxembourg is owned by Cedel International, société anonyme, and Deutsche Brse AG. The shareholders of these two entities are banks, securities dealers and financial institutions.

Clearstream, Luxembourg holds securities for its customers and facilitates the clearance and settlement of securities transactions between Clearstream, Luxembourg customers through electronic book-entry changes in accounts of Clearstream, Luxembourg customers, thus eliminating the need for physical movement of certificates. Transactions may be settled by Clearstream, Luxembourg in many currencies, including United States dollars. Clearstream, Luxembourg provides to its customers, among other things, services for safekeeping, administration, clearance and settlement of internationally traded securities, securities lending and borrowing. Clearstream, Luxembourg also deals with domestic securities markets in over 30 countries through established depository and custodial relationships. Clearstream, Luxembourg interfaces with domestic markets in a number of countries. Clearstream, Luxembourg has established an electronic bridge with Euroclear Bank S.A./N.V., the operator of Euroclear, or the Euroclear operator, to facilitate settlement of trades between Clearstream, Luxembourg and Euroclear.

As a registered bank in Luxembourg, Clearstream, Luxembourg is subject to regulation by the Luxembourg Commission for the Supervision of the Financial Sector. Clearstream, Luxembourg customers are recognized financial institutions around the world, including underwriters, securities brokers and dealers, banks, trust companies and clearing corporations. In the United States, Clearstream, Luxembourg customers are limited to securities brokers and dealers and banks, and may include the underwriters for the debt securities. Other institutions that maintain a custodial relationship with a Clearstream, Luxembourg customer may obtain indirect access to Clearstream, Luxembourg. Clearstream, Luxembourg is an indirect participant in DTC.

Distributions with respect to the debt securities held beneficially through Clearstream, Luxembourg will be credited to cash accounts of Clearstream, Luxembourg customers in accordance with its rules and procedures, to the extent received by Clearstream, Luxembourg.

 

 

 

As to Euroclear: Euroclear has advised us that it was created in 1968 to hold securities for participants of Euroclear and to clear and settle transactions between Euroclear participants through simultaneous electronic book-entry delivery against payment, thus eliminating the need for physical movement of certificates and risk from lack of simultaneous transfers of securities and cash. Transactions may now be settled in many currencies, including United States dollars and Japanese Yen. Euroclear provides various other services, including securities lending and borrowing and interfaces with domestic markets in several countries generally similar to the arrangements for cross-market transfers with DTC described below.

Euroclear is operated by the Euroclear operator, under contract with Euroclear plc, a U.K. corporation. The Euroclear operator conducts all operations, and all Euroclear securities clearance accounts and Euroclear cash accounts are accounts with the Euroclear operator, not Euroclear plc. Euroclear plc establishes policy for Euroclear on behalf of Euroclear participants. Euroclear participants include banks (including central banks), securities brokers and dealers and other professional financial intermediaries and may include the underwriters for the debt securities. Indirect access to Euroclear is also available to other firms that clear through or maintain a custodial relationship with a Euroclear participant, either directly or indirectly. Euroclear is an indirect participant in DTC.

The Euroclear operator is a Belgian bank. The Belgian Banking Commission and the National Bank of Belgium regulate and examine the Euroclear operator.

The Terms and Conditions Governing Use of Euroclear and the related Operating Procedures of the Euroclear System, or the Euroclear Terms and Conditions, and applicable Belgian law govern securities clearance accounts and cash accounts with the Euroclear operator. Specifically, these terms and conditions govern:

 

 

 

transfers of securities and cash within Euroclear;

 

 

 

 

withdrawal of securities and cash from Euroclear; and

 

 

 

 

receipt of payments with respect to securities in Euroclear.

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All securities in Euroclear are held on a fungible basis without attribution of specific certificates to specific securities clearance accounts. The Euroclear operator acts under the terms and conditions only on behalf of Euroclear participants and has no record of or relationship with persons holding securities through Euroclear participants.

Distributions with respect to debt securities held beneficially through Euroclear will be credited to the cash accounts of Euroclear participants in accordance with the Euroclear Terms and Conditions, to the extent received by the Euroclear operator.

Global certificates are generally not transferable. We will issue physical certificates to beneficial owners of a global security if:

 

 

 

the depositary notifies us that it is unwilling or unable to continue as depositary or ceases to be a clearing agency registered under the Exchange Act or other applicable statute or regulation and we are unable to locate a qualified successor depositary;

 

 

 

 

an event of default occurs with respect to the applicable series of securities; or

 

 

 

 

we decide in our sole discretion that we do not want to have the debt securities of that series represented by global certificates.

If any of the events described in the preceding paragraph occurs, we will issue definitive securities in certificated form in an amount equal to a holder’s beneficial interest in the securities. Definitive securities will be issued in minimum denominations of $1,000 and integral multiples thereof in excess of that amount, and will be registered in the name of the person DTC specifies in a written instruction to the registrar of the debt securities.

In the event definitive securities are issued:

 

 

 

holders of definitive securities will be able to receive payments of principal and interest on their debt securities at the office of our paying agent maintained in the Borough of Manhattan or, at our option, by check mailed to the address of the person entitled to the payment at his or her address in the security register;

 

 

 

 

holders of definitive securities will be able to transfer their debt securities, in whole or in part, by surrendering the debt securities for registration of transfer at the corporate trust office of The Bank of New York Mellon. We will not charge any fee for the registration or transfer or exchange, except that we may require the payment of a sum sufficient to cover any applicable tax or other governmental charge payable in connection with the transfer; and

 

 

 

 

any moneys we pay to our paying agents for the payment of principal and interest on the debt securities that remains unclaimed at the second anniversary of the date such payment was due will be returned to us, and thereafter holders of definitive securities may look only to us, as general unsecured creditors, for payment.

You will be required to make your initial payment for the debt securities in immediately available funds. Secondary market trading between DTC participants will occur in the ordinary way in accordance with DTC rules and will be settled in immediately available funds using DTC’s Same-Day Funds Settlement System. Secondary market trading between Clearstream, Luxembourg customers and/or Euroclear participants will occur in the ordinary way in accordance with the applicable rules and operating procedures of Clearstream, Luxembourg and Euroclear and will be settled using the procedures applicable to conventional eurobonds in immediately available funds.

Cross-market transfers between persons holding directly or indirectly through DTC, on the one hand, and directly or indirectly through Clearstream, Luxembourg customers or Euroclear participants, on the other, will be effected in DTC in accordance with DTC rules on behalf of the relevant European international clearing system by U.S. depositary; however, such cross-market transactions will require delivery of instructions to the relevant European international clearing system by the counterparty in such system in accordance with its rules and procedures and within its established deadlines (based on European time). The relevant European international clearing system will, if the transaction meets its settlement requirements, deliver instructions to the U.S. depositary to take action to effect final settlement on its behalf by delivering or receiving debt securities in DTC, and making or receiving payment in accordance with

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normal procedures for same-day funds settlement applicable to DTC. Clearstream, Luxembourg customers and Euroclear participants may not deliver instructions directly to their respective U.S. depositaries.

Because of time-zone differences, credits of debt securities received in Clearstream, Luxembourg or Euroclear as a result of a transaction with a DTC participant will be made during subsequent securities settlement processing and dated the business day following the DTC settlement date. Such credits or any transactions in such debt securities settled during such processing will be reported to the relevant Clearstream, Luxembourg customers or Euroclear participants on such business day. Cash received in Clearstream, Luxembourg or Euroclear as a result of sales of debt securities by or through a Clearstream, Luxembourg customer or a Euroclear participant to a DTC participant will be received with value on the DTC settlement date but will be available in the relevant Clearstream, Luxembourg or Euroclear cash account only as of the business day following settlement in DTC.

Although DTC, Clearstream, Luxembourg and Euroclear have agreed to the foregoing procedures in order to facilitate transfers of debt securities among participants of DTC, Clearstream, Luxembourg and Euroclear, they are under no obligation to perform or continue to perform such procedures and such procedures may be discontinued at any time.

Provisions Applicable Solely to Subordinated Securities

General

We may issue subordinated debt securities in one or more series under the subordinated debt indenture. Holders of subordinated debt securities should recognize that contractual provisions in the subordinated debt indenture may prohibit us from making payments on these securities. The subordinated debt securities will rank on an equal basis with certain of our other subordinated debt that may be outstanding from time to time and will rank junior to all of our senior indebtedness, as defined below, including any senior debt securities, that may be outstanding from time to time.

If subordinated debt securities are issued under the subordinated indenture, the aggregate principal amount of senior indebtedness outstanding as of a recent date will be set forth in the accompanying prospectus supplement. Neither the senior nor the subordinated indenture restricts the amount of senior indebtedness that we may incur.

Subordination

The payment of the principal of, and premium, if any, and interest on the subordinated debt securities is expressly subordinated, to the extent and in the manner set forth in the subordinated indenture, in right of payment to the prior payment in full of all of our senior indebtedness. The term senior indebtedness is defined in the subordinated indenture as indebtedness we incur for money borrowed, all deferrals, renewals or extensions of any of that indebtedness and all evidences of indebtedness issued in exchange for any of that indebtedness. Senior indebtedness also includes our guarantees of the foregoing items of indebtedness for money borrowed by persons other than us, unless, in any such case, that indebtedness or guarantee provides by its terms that it will not constitute senior indebtedness.

The subordinated debt indenture provides that, unless all principal of, and any premium or interest on, the senior indebtedness has been paid in full, or provision has been made to make these payments in full, no payment or other distribution may be made with respect to the subordinated indebtedness in the following circumstances:

 

 

 

any acceleration of the principal amount due on the subordinated debt securities;

 

 

 

 

our dissolution or winding-up or total or partial liquidation or reorganization, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings;

 

 

 

 

a default in the payment of principal, premium, if any, sinking fund or interest with respect to any of our senior indebtedness; or

 

 

 

 

an event of default, other than a default in the payment of principal, premium, if any, sinking funds or interest, with respect to any senior indebtedness, as defined in the instrument under which the

27


 

 

 

 

same is outstanding, permitting the holders of senior indebtedness to accelerate its maturity, and such event of default has not been cured or waived.

A merger, consolidation or conveyance of all or substantially all of our assets on the terms and conditions provided in the subordinated indenture will not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of these subordination provisions.

If the holders of subordinated securities receive any payment or distribution of our assets not permitted by the subordination provisions, the holders of subordinated debt securities will have to repay that amount to the holders of the senior debt securities or to the trustee.

Subrogation

After the payment in full of all senior indebtedness, the holders of the subordinated debt securities will be subrogated to the rights of the holders of senior indebtedness to receive payments or distributions of our assets or securities applicable to the senior indebtedness until the subordinated debt securities are paid in full. Under these subrogation provisions, no payments or distributions to the holders of senior indebtedness which otherwise would have been payable or distributable to holders of the subordinated debt securities will be deemed to be a payment by us to or on the account of the senior indebtedness. These provisions of the subordinated indenture are intended solely for the purpose of defining the relative rights of the holders of the subordinated debt securities and the holders of the senior debt securities. Nothing contained in the subordinated indenture is intended to impair our absolute obligation to pay the principal of and premium and interest on the subordinated debt securities in accordance with their terms or to affect the relative rights of the holders of the subordinated debt securities and our creditors other than the holders of the senior indebtedness. These subrogation provisions of the subordinated indenture will not prevent the holder of any subordinated debt security from exercising all remedies otherwise permitted by applicable law upon default of that security, subject to the rights of subordination described above.

Provisions Applicable Solely to Senior Securities

Restrictions as to Liens

The senior indenture includes a covenant providing that we will not at any time directly or indirectly create, or allow to exist or be created, any mortgage, pledge, encumbrance or lien of any kind upon:

 

 

 

any shares of capital stock owned by us of any of American Express Travel Related Services Company, Inc. or American Express Banking Corporation and any one or more of our subsidiaries that succeeds to all or substantially all of the business or ownership of the property of those companies, so long as they continue to be our subsidiaries, which we refer to collectively as the “principal subsidiaries”; or

 

 

 

 

any shares of capital stock owned by us of a subsidiary that owns, directly or indirectly, capital stock of the principal subsidiaries.

However, liens of this nature are permitted if we provide that the senior debt securities will be secured by the lien equally and ratably with any and all other obligations also secured, for as long as any other obligations of that type are so secured. Also, we may incur or allow to exist upon the stock of the principal subsidiaries liens for taxes, assessments or other governmental charges or levies which are not yet due or are payable without penalty or which we are contesting in good faith, or liens of judgments that are on appeal or are discharged within 60 days.

This covenant will cease to be binding on us with respect to any series of the senior debt securities to which this covenant applies following discharge of those senior debt securities.

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DESCRIPTION OF PREFERRED SHARES

General

The following briefly summarizes certain of the material terms of our preferred shares. Other pricing and related terms will be disclosed in the accompanying prospectus supplement. You should read the accompanying prospectus supplement together with the certificate of designation relating to that series and our amended and restated certificate of incorporation for a more detailed description of a particular series of preferred shares and other provisions that may be important to you.

Under our amended and restated certificate of incorporation, we are authorized to issue 20,000,000 preferred shares, par value $1.66 2 / 3 per share. We do not currently have any outstanding preferred shares and therefore all 20,000,000 shares are still available for issuance. Our Board of Directors is authorized to issue our preferred shares from time to time in one or more series with such designations, voting powers, dividend rates, rights of redemption, conversion rights or other special rights, preferences and limitations as may be stated in resolutions adopted by our Board of Directors.

The preferred shares will have the dividend, liquidation and voting rights set forth below unless otherwise provided in the prospectus supplement relating to a particular series of preferred shares. You should read the prospectus supplement relating to the particular series of the preferred shares being offered for specific terms, including:

 

 

 

the title and number of shares offered and liquidation preference per share;

 

 

 

 

the price per share;

 

 

 

 

the dividend rate, the dates on which dividends will be payable, the conditions under which dividends will be payable or the method of determining that rate, dates and conditions;

 

 

 

 

whether dividends will be cumulative or non cumulative and, if cumulative, the dates from which dividends will begin to accumulate;

 

 

 

 

whether dividends are participating or non-participating;

 

 

 

 

any redemption, sinking fund or analogous provisions;

 

 

 

 

any conversion or exchange provisions;

 

 

 

 

whether we have elected to offer depositary shares with respect to the preferred shares, as described below under “Depositary Shares”;

 

 

 

 

whether the preferred shares will have voting rights, in addition to the voting rights described below, and, if so, the terms of those voting rights;

 

 

 

 

the procedures for any auction and remarketing of the preferred shares; and

 

 

 

 

any additional dividend, liquidation, redemption, sinking fund or other rights, preferences, privileges, limitations and restrictions.

When issued, the preferred shares will be fully paid and nonassessable.

Dividend Rights

All preferred shares will be of equal rank with each other regardless of series. If the stated dividends or the amounts payable on liquidation are not paid in full, the preferred shares of all series will share ratably in the payment of dividends and in any distribution of assets. All preferred shares will have dividend rights prior to the dividend rights of the common shares.

Rights Upon Liquidation

Unless otherwise specified in the accompanying prospectus supplement, in the event of a liquidation, each series of the preferred shares will rank on an equal basis with all other outstanding preferred shares and prior to the common stock as to dividends and distributions.

Voting Rights

Except as described below, the holders of preferred shares have no voting rights, other than as may be required by law. Whenever dividends payable on the preferred shares of any series will be in arrears in an

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aggregate amount at least equal to six full quarterly dividends on that series, the holders of the outstanding preferred shares of all series will have the special right, voting separately as a single class, to elect two directors at the next succeeding annual meeting of shareholders. Subject to the terms of any outstanding series of preferred shares, the holders of common stock and the holders of one or more series of preferred shares then entitled to vote will have the right, voting as a single class, to elect the remaining authorized number of directors.

At each meeting of shareholders at which the holders of the preferred shares will have this special right, the presence in person or by proxy of the holders of record of one-third of the total number of the preferred shares of all series then issued and outstanding will constitute a quorum of that class. Each director elected by the holders of the preferred shares of all series will hold office until the annual meeting of shareholders next succeeding that election and until that director’s successor, if any, is elected by those holders and qualified or until the death, resignation or removal of that director in the manner provided in our by-laws. A director elected by the holders of the preferred shares of all series may only be removed without cause by those holders. In case any vacancy will occur among the directors elected by the holders of the preferred shares of all series, that vacancy may be filled for the unexpired portion of the term by vote of the remaining directors elected by such shareholders, or that director’s successor in office. If such vacancy occurs more than 90 days prior to the first anniversary of the next preceding annual meeting of shareholders, the vacancy may be filled by the vote of those shareholders taken at a special meeting of those shareholders called for that purpose. Whenever all arrears of dividends on the preferred shares of all series will have been paid and dividends for the current quarterly period will have been paid or declared and provided for, the right of the holders of the preferred shares of all series to elect two directors will terminate at the next succeeding annual meeting of shareholders.

The consent of the holders of at least two-thirds of the outstanding preferred shares voting separately as a single class will be required for:

 

 

 

the authorization of any class of shares ranking prior to the preferred shares as to dividends or upon liquidation, dissolution or winding up;

 

 

 

 

an increase in the authorized amount of any class of shares ranking prior to the preferred shares; or

 

 

 

 

the authorization of any amendment to our restated certificate of incorporation or by-laws that would adversely affect the relative rights, preferences or limitations of the preferred shares. If any such amendment will adversely affect the relative rights, preferences or limitations of one or more, but not all, of the series of preferred shares then outstanding, the consent of the holders of at least two-thirds of the outstanding preferred shares of the several series so affected will be required in lieu of the consent of the holders of at least two-thirds of the outstanding preferred shares of all series.

In any case in which the holders of the preferred shares will be entitled to vote separately as a single class, each holder of preferred shares of any series will be entitled to one vote for each such share held.

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DESCRIPTION OF DEPOSITARY SHARES

The following summary does not purport to be complete. You should read the deposit agreement and depositary receipts relating to each series of preferred shares filed with the SEC in connection with the offering of that series of preferred shares.

We may elect to offer fractional interests in preferred shares rather than preferred shares, with those rights and subject to the terms and conditions that we may specify in the related prospectus supplement. If we do, we will select a depositary that will issue to the public receipts for depositary shares, each of which will represent fractional interests of a particular series of preferred shares. These depositary receipts will be distributed in accordance with the terms of the offering described in the related prospectus supplement.

The depositary will be a bank or trust company that has its principal office in the United States. We will deposit the preferred shares underlying the depositary shares with the depositary under the terms of a separate deposit agreement. The prospectus supplement relating to a series of depositary shares will set forth the name and address of the depositary.

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DESCRIPTION OF COMMON SHARES

We are authorized to issue up to 3,600,000,000 common shares, par value $0.20 each. At September 30, 2009, we had outstanding 1,189,246,218 common shares. As of December 31, 2008, we had reserved approximately 143 million common shares for issuance with respect to the dividend reinvestment plan as well as various employee stock plans and employee benefit plans.

The following description of the common shares does not purport to be complete and is subject to, and qualified in its entirety by reference to the applicable provisions of the New York Business Corporation Law, our amended and restated certificate of incorporation and our by-laws.

Dividends. Subject to the prior rights of holders of any preferred shares, holders of common shares are entitled to receive dividends when, as and if declared by our Board of Directors out of funds legally available for that purpose.

Liquidation Rights. In the event of our liquidation, dissolution or winding up, after the satisfaction in full of the liquidation preferences of holders of any preferred shares, holders of common shares are entitled to ratable distribution of the remaining assets available for distribution to shareholders.

Voting Rights. Each common share is entitled to one vote on all matters submitted to a vote of shareholders. Holders of the common shares do not have cumulative voting rights.

No Redemption Provisions. The common shares are not subject to redemption by operation of a sinking fund or otherwise.

No Preemptive Rights. Holders of common shares are not entitled to preemptive rights.

No Assessment. The issued and outstanding common shares are fully paid and nonassessable.

Transfer Agent and Registrar. The transfer agent and registrar for the common shares is The Bank of New York Mellon, BNY Mellon Shareowner Services, 480 Washington Boulevard, 29th Floor, Jersey City, New Jersey 07310.

Certain provisions of our amended and restated certificate of incorporation and our by-laws as well as the New York Business Corporations Law may have the effect of encouraging persons considering unsolicited tender offers or unilateral takeover proposals for us to negotiate with the Board of Directors and could thereby have an effect of delaying, deferring or preventing a change in control. These provisions include:

Authorized But Unissued Shares. As of September 30, 2009, 2,405,716,542 common shares and 20,000,000 preferred shares were authorized but unissued and 5,037,240 common shares were held by us as treasury shares. Such shares could be issued without stockholder approval in transactions that might prevent or render more difficult or costly the completion of a takeover transaction. In this regard, our amended and restated certificate of incorporation grants the Board of Directors broad corporate power to establish the rights and preferences of preferred stock, one or more classes or series of which could be issued which would entitle holders to exercise rights which could have the effect of impeding a takeover, including rights to convert or exchange the stock into common shares or other securities or to demand redemption of the stock at a specified price under prescribed circumstances related to a change of control.

 

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Advance Notice By-law. Under our by-laws, written notice of any proposal to be presented by any shareholder or any person to be nominated by any shareholder for election as a director must be received by our secretary at our principal executive offices not less than 90 nor more than 120 days prior to the anniversary of the preceding year’s annual meeting; provided, however, that if the date of the annual meeting is not within 25 days before or after such anniversary date, such notice must be received not later than 10 days following the day on which the date of the meeting is first disclosed to the shareholders or publicly, whichever occurs first.

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DESCRIPTION OF SECURITIES WARRANTS

We may issue warrants for the purchase of:

 

 

 

debt securities,

 

 

 

 

preferred shares,

 

 

 

 

depositary shares,

 

 

 

 

common shares, or

 

 

 

 

equity securities issued by one of our affiliated or unaffiliated corporations or other entity.

Each securities warrant will entitle the holder to purchase for cash the amount of securities at the exercise price stated or determinable in the prospectus supplement for the securities warrants. We may issue these securities warrants independently or together with any other securities offered by any prospectus supplement. The securities warrants may be attached to or separate from those securities. Each series of securities warrants will be issued under a separate warrant agreement to be entered into between us and a warrant agent. The warrant agent will act solely as our agent in connection with the securities warrants of that series and will not assume any obligation or relationship of agency or trust for or with any holders or beneficial owners of such securities warrants.

The prospectus supplement relating to any securities warrants that we may offer will contain the specific terms of the securities warrants. These terms will include some or all of the following:

 

 

 

the title and aggregate number of the securities warrants;

 

 

 

 

the price or prices at which the securities warrants will be issued;

 

 

 

 

the currency or currencies or currency unit or units in which the price of the securities warrants may be payable;

 

 

 

 

the designation, aggregate principal amount and terms of the securities purchasable upon exercise of the securities warrants;

 

 

 

 

the designation and terms of the other securities, if any, with which the securities warrants are to be issued and the number of the securities warrants issued with each other security;

 

 

 

 

the currency or currencies or currency unit or units in which the principal of or any premium or interest on the securities purchasable upon exercise of the securities warrant will be payable;

 

 

 

 

if applicable, the date on and after which the securities warrants and the related securities will be separately transferable;

 

 

 

 

the price at which and currency or currencies or currency unit or units in which the securities purchasable upon exercise of the securities warrants may be purchased;

 

 

 

 

the date on which the right to exercise the securities warrants will commence and the date on which that right will expire;

 

 

 

 

the minimum or maximum amount of the securities warrants which may be exercised at any one time;

 

 

 

 

information with respect to book-entry procedures, if any;

 

 

 

 

a discussion of any material U.S. federal income tax considerations applicable to the exercise of the securities warrants; and

 

 

 

 

any other terms of the securities warrants, including terms, procedures and limitations relating to the exchange and exercise of the securities warrants.

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DESCRIPTION OF CURRENCY WARRANTS

We may issue warrants entitling the holder to receive the cash value in U.S. dollars of the right to purchase or the right to sell foreign currencies or composite currencies.

Each issue of currency warrants will be issued under a warrant agreement to be entered into between us and a warrant agent. The currency warrant agent will act solely as our agent under the applicable currency warrant agreement and will not assume any obligation or relationship of agency or trust for or with any holders or beneficial owners of such currency warrants.

The prospectus supplement relating to any currency warrants that we may offer will contain the specific terms of the currency warrants. These terms will include some or all of the following:

 

 

 

 

the aggregate amount and number of the currency warrants;

 

 

 

 

the offering price of the currency warrants;

 

 

 

 

the designated currency of the currency warrants, which currency may be a foreign currency or a composite currency, and information regarding that currency or composite currency;

 

 

 

 

the date on which the right to exercise the currency warrants commences and the date on which that right expires;

 

 

 

 

the manner in which the currency warrants may be exercised;

 

 

 

 

the circumstances which will cause the currency warrants to be deemed automatically exercised;

 

 

 

 

the minimum number, if any, of the currency warrants exercisable at any one time and any other restrictions on exercise;

 

 

 

 

the method of determining the amount payable in connection with the exercise of the currency warrants, including the strike price or range of strike prices of the currency warrants, the method of determining the spot exchange rate and the U.S. dollar settlement value for the currency warrants;

 

 

 

 

the securities exchange on which the currency warrants will be listed, if any;

 

 

 

 

whether the currency warrants will be represented by certificates or issued in book-entry form;

 

 

 

 

the place or places at which payment of the cash settlement value of the currency warrants is to be made, if applicable;

 

 

 

 

information with respect to book-entry procedures, if any;

 

 

 

 

the plan of distribution of the currency warrants; and

 

 

 

 

any other terms of the currency warrants.

Prospective purchasers of the currency warrants should be aware of special federal income tax considerations applicable to instruments such as the currency warrants. The prospectus supplement relating to each issue of currency warrants will describe such tax considerations.

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DESCRIPTION OF OTHER WARRANTS

We may issue other warrants to buy or sell:

 

 

 

debt securities of or guaranteed by the United States,

 

 

 

 

units of a stock index or stock basket,

 

 

 

 

a commodity or

 

 

 

 

a unit of a commodity index or another item or unit of an index.

We refer to the property in the above clauses as the warrant property. Other warrants will be settled either through physical delivery of the warrant property or through payment of a cash settlement value as set forth in the accompanying prospectus supplement. Other warrants will be issued under a warrant agreement to be entered into between us and a warrant agent. The other warrant agent will act solely as our agent under the applicable other warrant agreement and will not assume any obligation or relationship of agency or trust for or with any holder or beneficial owner of such other warrants.

The prospectus supplement relating to any other warrants that we may offer will contain the specific terms of the other warrants. These terms will include some or all of the following:

 

 

 

the title and aggregate number of the other warrants;

 

 

 

 

the offering price of the other warrants;

 

 

 

 

the material risk factors of the other warrants;

 

 

 

 

the warrant property of the other warrants;

 

 

 

 

the procedures and conditions relating to the exercise of the other warrants;

 

 

 

 

the date on which the right to exercise the other warrants will commence and the date on which that right will expire;

 

 

 

 

the identity of the other warrant agent for the other warrants;

 

 

 

 

whether the certificates evidencing the other warrants will be issuable in definitive registered form or global form or both;

 

 

 

 

a discussion of any material U.S. federal income tax considerations applicable to the exercise of the other warrants; and

 

 

 

 

any other terms of the other warrants, including any terms that may be required or advisable under applicable law.

The other warrants may entail significant risks, including, without limitation, the possibility of significant fluctuations in the market for the applicable warranty property, potential illiquidity in the secondary market and the risk that they will expire worthless. These risks will vary depending on the particular terms of the other warrants and will be more fully described in the accompanying prospectus supplement.

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ERISA CONSIDERATIONS

A fiduciary of a pension, profit-sharing or other employee benefit plan governed by the Employee Retirement Income Security Act of 1974, as amended, to which we refer as ERISA, should consider the fiduciary standards of ERISA in the context of the ERISA plan’s particular circumstances before authorizing an investment in the offered securities. Among other factors, the fiduciary should consider whether such an investment is in accordance with the documents governing the ERISA plan and whether the investment is appropriate for the ERISA plan in view of its overall investment policy and diversification of its portfolio.

Certain provisions of ERISA and the Internal Revenue Code of 1986, as amended, to which we refer as the Code, prohibit employee benefit plans (as defined in Section 3(3) of ERISA) that are subject to Title I of ERISA, plans described in Section 4975(e)(1) of the Code (including, without limitation, retirement accounts and Keogh Plans), and entities whose underlying assets include plan assets by reason of a plan’s investment in such entities (including, without limitation, as applicable, insurance company general accounts), from engaging in certain transactions involving “plan assets” with parties that are “parties in interest” under ERISA or “disqualified persons” under the Code with respect to the plan or entity. Governmental and other plans that are not subject to ERISA or to the Code may be subject to similar restrictions under federal, state or local law. Any employee benefit plan or other entity, to which such provisions of ERISA, the Code or similar law apply, proposing to acquire the offered securities should consult with its legal counsel.

We, directly or through our affiliates, may be considered a “party in interest” or a “disqualified person” to a large number of plans. A purchase of offered securities by any such plan would be likely to result in a prohibited transaction between us and the plan.

Accordingly, unless otherwise provided in the related prospectus supplement, offered securities may not be purchased, held or disposed of by any plan or any other person investing “plan assets” of any plan that is subject to the prohibited transaction rules of ERISA or Section 4975 of the Code or other similar law, unless one of the following statutory exemptions, Prohibited Transaction Class Exemptions, to which we refer as PTCE, issued by the United States Department of Labor or a similar exemption or exception applies to such purchase, holding and disposition:

 

 

 

PTCE 96-23 for transactions determined by in-house asset managers;

 

 

 

 

PTCE 95-60 for transactions involving insurance company general accounts;

 

 

 

 

PTCE 91-38 for transactions involving bank collective investment funds;

 

 

 

 

PTCE 90-1 for transactions involving insurance company separate accounts; or

 

 

 

 

PTCE 84-14 for transactions determined by independent qualified professional asset managers.

In addition, ERISA Section 408(b)(17) and Section 4975(d)(20) of the Code provide an exemption for the purchase and sale of securities and related lending transactions, provided that neither the issuer of the securities nor any of its affiliates have or exercise any discretionary authority or control or render any investment advice with respect to the assets of any plan involved in the transaction, and provided further that the plan pays no more than “adequate consideration” in connection with the transaction (the “service provider exemption”).

Unless otherwise provided in the related prospectus supplement, any purchaser of the offered securities or any interest therein will be deemed to have represented and warranted to us on each day including the dates of its purchase of the offered securities through and including the date of disposition of such offered securities that either:

(a) it is not a plan subject to Title I of ERISA or Section 4975 of the Code and is not purchasing securities or interest there on behalf of, or with “plan assets” of, any such plan;

(b) its purchase, holding and disposition of such securities are not and will not be prohibited because they are exempt from the prohibited transaction provisions of ERISA and the Code by one or more of the following prohibited transaction exemptions: PTCE 96-23, 95-60, 91-38, 90-1 or 84-14, the service provider exemption, or another applicable exemption; or

(c) it is a governmental plan (as defined in Section 3 of ERISA) or other plan that is not subject to the provisions of Title I of ERISA or Section 4975 of the Code and its purchase, holding and disposition of such securities are not otherwise prohibited under any applicable law.

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Due to the complexity of these rules and the penalties imposed upon persons involved in prohibited transactions, it is important that any person considering the purchase of the offered securities with plan assets consult with its counsel regarding the consequences under ERISA and the Code, or other similar law, of the acquisition and ownership of offered securities and the availability of exemptive relief under the class exemptions listed above.

Please consult the accompanying prospectus supplement for further information with respect to a particular offering of securities.

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CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES

The following is a summary of certain United States federal income tax considerations that may be relevant to persons considering the purchase of the debt securities covered by this prospectus. For a discussion of certain United States federal income tax considerations that may be relevant to persons considering the purchase of amortizing debt securities or indexed debt securities (described above), please refer to the accompanying prospectus supplement. Persons considering the purchase of warrants should consult their own tax advisors regarding the tax consequences of the purchase, ownership and disposition thereof.

This summary, which does not represent tax advice, is based on laws, regulations, rulings and decisions now in effect, all of which are subject to change (including changes in effective dates) or possible differing interpretations. This summary deals only with debt securities that will be held as capital assets and, except where otherwise specifically stated, is addressed only to persons who purchase debt securities in the initial offering. It does not address tax considerations applicable to investors that may be subject to special tax rules, such as banks, tax-exempt entities, insurance companies, dealers in securities or currencies, traders in securities electing to mark to market, persons that will hold debt securities as a position in a “straddle” or conversion transaction, or as part of a “synthetic security” or other integrated financial transaction or persons that have a “functional currency” other than the U.S. dollar. Prospective purchasers of debt securities should review the accompanying prospectus supplements for summaries of special United States federal income tax considerations that may be relevant to a particular issue of debt securities, including any floating rate debt securities or foreign currency debt securities (defined below).

IRS Circular 230 Notice: To ensure compliance with Internal Revenue Service Circular 230, prospective purchasers of debt securities are hereby notified that: (a) any discussion of U.S. federal tax issues contained or referred to in this prospectus or any document referred to herein is not intended or written to be used, and cannot be used by prospective purchasers for the purpose of avoiding penalties that may be imposed on them under the Internal Revenue Code; (b) such discussion is written for use in connection with the promotion or marketing of the transactions or matters addressed herein; and (c) prospective purchasers should seek advice based on their particular circumstances from an independent tax advisor in determining the tax consequences to them of the purchase, ownership and disposition of debt securities, including the application to their particular situation of the United States federal income tax considerations discussed below, as well as the application of state, local, foreign or other tax laws.

As used herein, the term “United States Holder” means a beneficial owner of a debt security that is (i) a citizen or resident of the United States; (ii) a corporation (or an entity taxable as a corporation for United States federal income tax purposes), that was established under the laws of the United States, any state thereof, or the District of Columbia; or (iii) an estate or trust whose world-wide income is subject to United States federal income tax. If a partnership holds debt securities, the tax treatment of partners will generally depend upon the status of the partner and the activities of the partnership. Partners of a partnership holding debt securities should accordingly consult their own tax advisors. As used herein, the term “Non-United States Holder” means a beneficial owner of a debt security that is not a United States Holder.

Tax Consequences to United States Holders

Payments of Interest . Payments of qualified stated interest (as defined below under “—Original Issue Discount”) on a debt security will be taxable to a United States Holder as ordinary interest income at the time that such payments are accrued or are received (in accordance with the United States Holder’s method of tax accounting).

Unless otherwise specified in an applicable debt security, debt securities will be denominated in U.S. dollars and payments of principal of, and interest on, debt securities will be made in U.S. dollars. Debt securities may be denominated in a currency other than U.S. dollars, which we refer to as foreign currency debt securities. If such payments of interest are made with respect to a foreign currency debt security, the amount of interest income realized by a United States Holder that uses the cash method of tax accounting will be the U.S. dollar value of the specified currency payment based on the exchange rate in effect on the date of receipt regardless of whether the payment in fact is converted into U.S. dollars. A United States

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Holder that uses the accrual method of accounting for tax purposes will accrue interest income on the foreign currency debt security in the relevant foreign currency and translate the amount accrued into U.S. dollars based on the average exchange rate in effect during the interest accrual period (or portion thereof within the United States Holder’s taxable year) or, at the accrual-basis United States Holder’s election, at the spot rate of exchange on the last day of the accrual period (or the last day of the taxable year within such accrual period if the accrual period spans more than one taxable year), or at the spot rate of exchange on the date of receipt, if such date is within five business days of the last day of the accrual period. A United States Holder that makes such election must apply it consistently to all debt instruments from year to year and cannot change the election without the consent of the IRS. A United States Holder that uses the accrual method of accounting for tax purposes will recognize foreign currency gain or loss, as the case may be, on the receipt of an interest payment made with respect to a foreign currency debt security if the exchange rate in effect on the date the payment is received differs from the rate applicable to a previous accrual of that interest income. This foreign currency gain or loss will be treated as ordinary income or loss but generally will not be treated as an adjustment to interest income received on the debt security.

Purchase, Sale, Exchange and Retirement of Debt Securities . A United States Holder’s tax basis in a debt security generally will equal the cost of such debt security to such holder, increased by any amounts includible in income by the holder as original issue discount and market discount and reduced by any amortized premium (each as described below) and any payments other than payments of qualified stated interest (as defined below) made on such debt security.

In the case of a foreign currency debt security, the cost of such debt security to a United States Holder will be the U.S. dollar value of the foreign currency purchase price on the date of purchase. In the case of a foreign currency debt security that is traded on an established securities market, a cash-basis United States Holder (and, if it so elects, an accrual-basis United States Holder) will determine the U.S. dollar value of the cost of such debt security by translating the amount paid at the spot rate of exchange on the settlement date of the purchase. The amount of any subsequent adjustments to a United States Holder’s tax basis in a debt security in respect of original issue discount, market discount and premium denominated in a specified currency will be determined in the manner described under “—Original Issue Discount” and “—Premium and Market Discount” below. The conversion of U.S. dollars to a specified currency and the immediate use of the specified currency to purchase a foreign currency debt security generally will not result in taxable gain or loss for a United States Holder.

Upon the sale, exchange or retirement of a debt security, a United States Holder generally will recognize gain or loss equal to the difference between the amount realized on the sale, exchange or retirement (less any accrued qualified stated interest, which will be taxable as such) and the United States Holder’s tax basis in such debt security. If a United States Holder receives a currency other than the U.S. dollar in respect of the sale, exchange or retirement of a debt security, the amount realized will be the U.S. dollar value of the specified currency received calculated at the exchange rate in effect on the date the instrument is disposed of or retired. In the case of a foreign currency debt security that is traded on an established securities market, a cash-basis United States Holder and, if it so elects, an accrual-basis United States Holder will determine the U.S. dollar value of the amount realized by translating such amount at the spot rate on the settlement date of the sale. The election available to accrual-basis United States Holders in respect of the purchase and sale of foreign currency debt securities traded on an established securities market, discussed above, must be applied consistently to all debt instruments from year to year and cannot be changed without the consent of the IRS.

Except as discussed below with respect to market discount, short-term debt securities (as defined below) and foreign currency gain or loss, gain or loss recognized by a United States Holder generally will be long-term capital gain or loss if the United States Holder has held the debt security for more than one year at the time of disposition. Long-term capital gains recognized by an individual United States Holder generally are subject to tax at a lower rate than short-term capital gains or ordinary income. The deductibility of capital losses is subject to limitations.

Gain or loss recognized by a United States Holder on the sale, exchange or retirement of a foreign currency debt security generally will be treated as ordinary income or loss to the extent that the gain or loss is attributable to changes in exchange rates during the period in which the holder held such debt

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security. This foreign currency gain or loss will not be treated as an adjustment to interest income received on the debt securities.

Original Issue Discount. United States Holders of debt securities with original issue discount, or OID, generally will be subject to the special tax accounting rules for obligations issued with original issue discount provided by the Internal Revenue Code and certain regulations promulgated thereunder, which we refer to as the OID Regulations. Debt securities issued with OID will be referred to as original issue discount debt securities. Notice will be given in the accompanying prospectus supplement when we determine that a particular debt security is an original issue discount debt security. United States Holders of such original issue discount debt securities should be aware that, as described in greater detail below, they generally must include OID in ordinary gross income for United States federal income tax purposes as it accrues, in advance of the receipt of cash attributable to that income.

A debt security will generally be considered to be issued with OID if its stated redemption price at maturity (as defined below) exceeds its issue price (as defined below) by more than a de minimis amount (generally, 0.25% of such stated redemption price multiplied by the complete years to maturity). The “stated redemption price at maturity” of a debt security is generally the sum of all payments to be made on the debt security other than qualified stated interest (as defined below). “Qualified stated interest” is generally stated interest that is unconditionally payable in cash or in property (other than our debt instruments) at least annually during the entire term of a debt security at a single fixed rate or, subject to certain conditions, based on one or more interest indices. The “issue price” of each debt security in a particular offering will generally be the first price at which a substantial amount of that particular offering is sold to the public (ignoring sales to underwriters, placement agents or wholesalers).

In general, each United States Holder of an original issue discount debt security, whether such holder uses the cash or the accrual method of tax accounting, will be required to include in ordinary gross income the sum of the “daily portions” of OID on the debt security for all days during the taxable year that the United States Holder owns the debt security. The daily portions of OID on an original issue discount debt security are determined by allocating to each day in any accrual period a ratable portion of the OID allocable to that accrual period. Accrual periods may be any length and may vary in length over the term of an original issue discount debt security, provided that no accrual period is longer than one year and each scheduled payment of principal or interest occurs on either the final day or the first day of an accrual period. In the case of an initial United States Holder, the amount of OID on an original issue discount debt security allocable to each accrual period is determined by (a) multiplying the adjusted issue price (as defined below) of the original issue discount debt security at the beginning of the accrual period by the yield to maturity (as defined below) of such original issue discount debt security (appropriately adjusted to reflect the length of the accrual period) and (b) subtracting from that product the amount (if any) of qualified stated interest allocable to that accrual period. The “yield to maturity” of a debt security is the discount rate that causes the present value of all payments on the debt security as of its original issue date to equal the issue price of such debt security. The “adjusted issue price” of an original issue discount debt security at the beginning of any accrual period will generally be the sum of its issue price (generally including accrued interest, if any) and the amount of OID allocable to all prior accrual periods, reduced by the amount of all payments other than payments of qualified stated interest (if any) made with respect to such debt security in all prior accrual periods. As a result of this “constant-yield” method of including OID in income, the amounts includible in income by a United States Holder in respect of an original issue discount debt security denominated in U.S. dollars generally are lesser in the early years and greater in the later years than the amounts that would be includible on a straight-line basis.

In the case of an original issue discount debt security that is a floating rate debt security, both the “yield to maturity” and “qualified stated interest” will generally be determined for these purposes as though the original issue discount debt security will bear interest in all periods at a fixed rate generally equal to the rate that would be applicable to the interest payments on the debt security on its date of issue or, in the case of certain floating rate debt securities, the rate that reflects the yield that is reasonably expected for the debt security. (Additional rules may apply if interest on a floating rate debt security is based on more than one interest index). Persons considering the purchase of floating rate debt securities should carefully examine the accompanying prospectus supplement and should consult their own tax advisors regarding the U.S. federal income tax consequences of the holding and disposition of such debt securities.

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A United States Holder generally may make an irrevocable election to include in its income its entire return on a debt security ( i.e. , the excess of all remaining payments to be received on the debt security, including payments of qualified stated interest, over the amount paid by such United States Holder for such debt security) under the constant-yield method described above. For debt securities purchased at a premium or bearing market discount in the hands of the United States Holder, the United States Holder making such election will also be deemed to have made the election (discussed below under “—Premium and Market Discount”) to amortize premium or to accrue market discount in income currently on a constant-yield basis.

In the case of an original issue discount debt security that is also a foreign currency debt security, a United States Holder should determine the U.S. dollar amount includible in income as OID for each accrual period by (a) calculating the amount of OID allocable to each accrual period in the specified currency using the constant-yield method described above, and (b) translating the amount of the specified currency so derived at the average exchange rate in effect during that accrual period (or portion thereof within a United States Holder’s taxable year) or, at the United States Holder’s election (as described above under “—Payments of Interest”), at the spot rate of exchange on the last day of the accrual period (or the last day of the taxable year within such accrual period if the accrual period spans more than one taxable year), or at the spot rate of exchange on the date of receipt, if such date is within five business days of the last day of the accrual period. Because exchange rates may fluctuate, a United States Holder of an original issue discount debt security that is also a foreign currency debt security may recognize a different amount of OID income in each accrual period than would the holder of an otherwise similar original issue discount debt security denominated in U.S. dollars. All payments on an original issue discount debt security (other than payments of qualified stated interest) will generally be viewed first as payments of previously accrued OID (to the extent thereof), with payments attributed first to the earliest-accrued OID, and then as payments of principal. Upon the receipt of an amount attributable to OID (whether in connection with a payment of an amount that is not qualified stated interest or the sale or retirement of the original issue discount debt security), a United States Holder will recognize ordinary income or loss measured by the difference between the amount received (translated into U.S. dollars at the exchange rate in effect on the date of receipt or on the date of disposition of the original issue discount debt security, as the case may be) and the amount accrued (using the exchange rate applicable to such previous accrual).

A subsequent United States Holder of an original issue discount debt security that purchases the debt security at a cost less than its remaining redemption amount (as defined below), or an initial United States Holder that purchases an original issue discount debt security at a price other than the debt security’s issue price, also generally will be required to include in gross income the daily portions of OID, calculated as described above. However, if the United States Holder acquires the original issue discount debt security at a price greater than its adjusted issue price, such holder is required to reduce its periodic inclusions of OID income to reflect the premium paid over the adjusted issue price. The “remaining redemption amount” for a debt security is the total of all future payments to be made on the debt security other than payments of qualified stated interest.

Floating rate debt securities generally will be treated as “variable rate debt instruments” under the OID Regulations. Accordingly, the stated interest on a floating rate debt security generally will be treated as “qualified stated interest” and such a debt security will not have OID solely as a result of the fact that it provides for interest at a variable rate. If a floating rate debt security does not qualify as a “variable rate debt instrument”, such debt security will be subject to special rules, which we refer to as the Contingent Payment Regulations, that govern the tax treatment of debt obligations that provide for contingent payments, which we refer to as Contingent Debt Obligations. Prospective purchasers of floating rate debt securities should carefully examine the accompanying prospectus supplement to see if the Company has determined such debt securities constitute Contingent Debt Obligations. If it has, they should consult their own tax advisors with respect to the tax consequences to them of such obligations.

Certain of the debt securities may be subject to special redemption, repayment or interest rate reset features, as indicated in the accompanying prospectus supplement. Debt securities containing such features, in particular original issue discount debt securities, may be subject to special rules that differ from the general rules discussed above. Purchasers of debt securities with such features should carefully examine the accompanying prospectus supplement and should consult their own tax advisors with respect to such debt securities because the tax consequences with respect to such features, and especially with respect to OID, will depend, in part, on the particular terms of the purchased debt securities.

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Premium and Market Discount. A United States Holder of a debt security that purchases the debt security at a cost greater than its remaining redemption amount (as defined in the third preceding paragraph) will be considered to have purchased the debt security at a premium, and may elect to amortize such premium (as an offset to interest income), using a constant-yield method, over the remaining term of the debt security. Such election, once made, generally applies to all bonds held or subsequently acquired by the United States Holder on or after the first taxable year to which the election applies and may not be revoked without the consent of the IRS. A United States Holder that elects to amortize such premium must reduce its tax basis in a debt security by the amount of the premium amortized during its holding period. Original issue discount debt securities purchased at a premium will not be subject to the OID rules described above.

In the case of premium in respect of a foreign currency debt security, a United States Holder should calculate the amortization of such premium in the specified currency. Amortization deductions attributable to a period reduce interest payments in respect of that period and therefore are translated into U.S. dollars at the exchange rate used by the United States Holder for such interest payments. Exchange gain or loss will be realized with respect to amortized bond premium on such a debt security based on the difference between the exchange rate on the date or dates such premium is recovered through interest payments on the debt security and the exchange rate on the date on which the United States Holder acquired the debt security.

With respect to a United States Holder that does not elect to amortize bond premium, the amount of bond premium will be included in the United States Holder’s tax basis when the debt security matures or is disposed of by the United States Holder. Therefore, a United States Holder that does not elect to amortize such premium and that holds the debt security to maturity generally will be required to treat the premium as a capital loss when the debt security matures.

If a United States Holder of a debt security purchases the debt security at a price that is lower than its remaining redemption amount or, in the case of an original issue discount debt security, its adjusted issue price, by at least 0.25% of its remaining redemption amount multiplied by the number of remaining whole years to maturity, the debt security will be considered to have “market discount” in the hands of such United States Holder. In such case, gain realized by the United States Holder on the disposition of the debt security generally will be treated as ordinary income to the extent of the market discount that accrued on the debt security while held by such United States Holder. In addition, the United States Holder could be required to defer the deduction of the interest paid on any indebtedness incurred or maintained to purchase or carry the debt security. In general terms, market discount on a debt security will be treated as accruing ratably over the term of such debt security or, at the election of the United States Holder, under a constant yield method. Market discount on a foreign currency debt security will be accrued by a United States Holder in the specified currency. The amount includible in income by a United States Holder in respect of such accrued market discount will be the U.S. dollar value of the amount accrued, generally calculated at the exchange rate in effect on the date that the debt security is disposed of by the United States Holder.

A United States Holder may elect to include market discount in income on a current basis as it accrues (on either a ratable or constant-yield basis), in lieu of treating a portion of any gain realized on a sale of a debt security as ordinary income. If a United States Holder elects to include market discount on a current basis, the interest deduction deferral rule described above will not apply. Any accrued market discount on a foreign currency debt security that is currently includible in income will be translated into U.S. dollars at the average exchange rate for the accrual period (or portion thereof within the United States Holder’s taxable year). Any such election, if made, applies to all market discount bonds acquired by the taxpayer on or after the first day of the first taxable year to which such election applies and is revocable only with the consent of the IRS.

Short-Term Debt Securities. The rules set forth above will also generally apply to debt securities having maturities of not more than one year, which we refer to as short-term debt securities, but with modifications, certain of which are summarized below:

First, the OID Regulations treat none of the interest on a short-term debt security as qualified stated interest. Thus, all short-term debt securities will be original issue discount debt securities. OID will be treated as accruing on a short-term debt security ratably or, at the election of a United States Holder, under a constant yield method.

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Second, a United States Holder of a short-term debt security that uses the cash method of tax accounting and is not a bank, securities dealer, regulated investment company or common trust fund, and does not identify the short-term debt security as part of a hedging transaction, will generally not be required to include OID in income on a current basis. Such a United States Holder may be required to defer the deduction of interest paid or accrued on any indebtedness incurred or maintained to purchase or carry such debt security until the maturity of the debt security or its earlier disposition in a taxable transaction. In addition, such a United States Holder will be required to treat any gain realized on a sale, exchange or retirement of the debt security as ordinary income to the extent such gain does not exceed the OID accrued with respect to the debt security during the period the United States Holder held the debt security. Notwithstanding the foregoing, a cash-basis United States Holder of a short-term debt security may elect to accrue original issue discount into income on a current basis (in which case the limitation on the deductibility of interest described above will not apply). A United States Holder using the accrual method of tax accounting and certain cash-basis United States Holders (including banks, securities dealers, regulated investment companies and common trust funds) generally will be required to include original issue discount on a short-term debt security in income on a current basis.

Third, any United States Holder (whether cash or accrual basis) of a short-term debt security can elect to accrue the “acquisition discount,” if any, with respect to the debt security on a current basis. If such an election is made, the OID rules will not apply to the debt security. Acquisition discount is the excess of the remaining redemption amount of the debt security at the time of acquisition over the purchase price. Acquisition discount will be treated as accruing ratably or, at the election of the United States Holder, under a constant-yield method based on daily compounding.

Finally, the market discount rules will not apply to a short-term debt security.

Floating Rate Debt Securities and Other Debt Securities Providing for Contingent Payments . The Contingent Payment Regulations, which govern the tax treatment of Contingent Debt Obligations, generally require accrual of interest income on a constant-yield basis in respect of such obligations at a yield determined at the time of their issuance, and may require adjustments to such accruals when any contingent payments are made. Prospective purchasers of debt securities should carefully examine the accompanying prospectus supplement to see if we have determined that such debt securities constitute Contingent Debt Obligations. If we have, prospective purchasers should consult their own tax advisors with respect to the tax consequences to them of such obligations.

Information Reporting and Backup Withholding . The issuing and paying agent will be required to file information returns with the IRS with respect to payments made to United States Holders of debt securities unless an exemption exists. In addition, United States Holders who are not exempt will be subject to backup withholding tax in respect of such payments if they do not provide their taxpayer identification numbers to the issuing and paying agent. All individuals are subject to these requirements. In general, corporations, tax-exempt organizations and individual retirement accounts are exempt from these requirements.

Tax Consequences to Non-United States Holders

Under present United States federal income and estate tax law, and subject to the discussion below concerning backup withholding:

(a) no withholding of United States federal income tax generally will be required with respect to the payment by us or any issuing and paying agent of principal or interest (which for purposes of this discussion includes OID) on a debt security owned by a Non-United States Holder, provided (i) that the beneficial owner does not actually or constructively own 10% or more of the total combined voting power of all classes of our stock entitled to vote within the meaning of section 871(h)(3) of the Code and the regulations thereunder, (ii) the beneficial owner is not a controlled foreign corporation that is related to us through stock ownership, (iii) the beneficial owner is not a bank whose receipt of interest on a debt security is described in section 881(c)(3)(A) of the Code and (iv) in the case of a registered debt security, the beneficial owner provides a statement signed under penalties of perjury that includes its name and address and certifies that it is a Non-United States Holder in compliance with applicable requirements, generally made, under current procedures, on IRS Form W-8BEN (or satisfies certain documentary evidence requirements for establishing that is it a Non-United States Holder);

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(b) a Non-United States Holder will generally not be subject to United States federal income tax on gain realized on the sale, exchange or redemption of a debt security, unless (i) such gain is effectively connected with the conduct by the holder of a trade or business in the United States or (ii) in the case of gain realized by an individual holder, the holder is present in the United States for 183 days or more in the taxable year of the retirement or disposition and certain other conditions are met;

(c) a debt security beneficially owned by an individual who at the time of death is a Non-United States Holder will generally not be subject to United States federal estate tax as a result of such individual’s death, provided that such individual does not actually or constructively own 10% or more of the total combined voting power of all classes of our stock entitled to vote within the meaning of section 871(h)(3) of the Internal Revenue Code and provided that the interest payments with respect to such debt security would not have been, if received at the time of such individual’s death, effectively connected with the conduct of a United States trade or business by such individual.

Notwithstanding the foregoing, a Non-United States Holder generally will be taxed in the same manner as a United States Holder with respect to interest income that is effectively connected with its U.S. trade or business. In addition, under certain circumstances, effectively connected interest income of a corporate Non- United States Holder may be subject to a “branch profits” tax imposed at a 30% rate. A Non-United States Holder with effectively connected income will, however, generally not be subject to withholding tax on interest income if, under current procedures, it delivers a properly completed IRS Form W-8ECI.

United States information reporting requirements and backup withholding tax will not apply to payments on a debt security if the beneficial owner (1) certifies its Non-United States Holder status under penalties of perjury, generally made, under current procedures, on IRS Form W-8BEN, or satisfies documentary evidence requirements for establishing that it is a Non-United States Holder, or (2) otherwise establishes an exemption.

Information reporting requirements will generally not apply to any payment of the proceeds of the sale of a debt security effected outside the United States by a foreign office of a foreign broker, provided that such broker derives less than 50% of its gross income for particular periods from the conduct of a trade or business in the United States, is not a controlled foreign corporation for United States federal income tax purposes, and is not a foreign partnership that, at any time during its taxable year, is 50% or more, by income or capital interest, owned by United States Holders or is engaged in the conduct of a United States trade or business.

Backup withholding tax will generally not apply to the payment of the proceeds of the sale of a debt security effected outside the United States by a foreign office of any broker. However, information reporting requirements will be applicable to such payment unless (1) such broker has documentary evidence in its records that the beneficial owner is a Non-United States Holder and other conditions are met or (2) the beneficial owner otherwise establishes an exemption. Information reporting requirements and backup withholding tax will apply to the payment of the proceeds of a sale of a debt security by the U.S. office of a broker, unless the beneficial owner certifies its Non-United States Holder status under penalties of perjury or otherwise establishes an exemption.

For purposes of applying the above rules for Non-United States Holders to an entity that is treated as a pass-through entity, such as a partnership or trust, the beneficial owner means each of the ultimate beneficial owners of the entity.

The rules regarding withholding, backup withholding and information reporting for Non-United States Holders are complex, may vary depending on a holder’s particular situation, and are subject to change. In addition, special rules apply to certain types of Non-United States Holders including partnerships, trusts and other entities treated as pass-through entities for United States federal income tax purposes. Non-United States Holders should accordingly consult their own tax advisors as to the specific methods to use and forms to complete to satisfy these rules.

European Union Directive on Taxation of Certain Interest Payments

Under European Council Directive 2003/48/EC on the taxation of savings income, Member States of the European Union are required to provide to the tax authorities of another Member State details of

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payments of interest (or similar income) paid by a person within its jurisdiction to an individual resident in that other Member State. However, for a transitional period, Belgium, Luxembourg and Austria are instead required (unless during that period they elect otherwise) to operate a withholding system in relation to such payments (the ending of such transitional period being dependent upon the conclusion of certain other agreements relating to information exchange with certain other countries). A number of non-EU countries and territories have agreed to adopt similar measures (some of which involve a withholding system). No additional amounts will be payable if a payment on a debt security to an individual is subject to any withholding or deduction that is required to be made pursuant to any European Union Directive on the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, any such Directive or any agreement on the taxation of savings income entered into by non-EU countries with a view to implementing such Directive. Holders of debt securities should consult their tax advisers regarding the implications of the Directive in their particular circumstance.

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PLAN OF DISTRIBUTION

We may sell the securities from time to time in one or more of the following ways:

 

 

 

to or through underwriters or dealers;

 

 

 

 

directly to one or more purchasers;

 

 

 

 

through agents; or

 

 

 

 

through a combination of any such methods of sale.

The prospectus supplement with respect to the offered securities will set forth the terms of the offering, including:

 

 

 

the name or names of any underwriters or agents;

 

 

 

 

the purchase price of the offered securities and the proceeds to us from their sale;

 

 

 

 

any underwriting discounts or sales agents’ commissions and other items constituting underwriters’ or agents’ compensation;

 

 

 

 

any initial public offering price;

 

 

 

 

any discounts or concessions allowed or reallowed or paid to dealers; and

 

 

 

 

any securities exchanges on which those securities may be listed.

Only underwriters or agents named in the accompanying prospectus supplement are deemed to be underwriters or agents in connection with the securities offered thereby.

If underwriters are used in the sale, the securities will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. The obligations of the underwriters to purchase those securities will be subject to certain conditions precedent, and unless otherwise specified in the accompanying prospectus supplement, the underwriters will be obligated to purchase all the securities of the series offered by such accompanying prospectus supplement relating to that series if any of such securities are purchased. Any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.

We may also sell securities directly or through agents we designate from time to time. Any agent involved in the offering and sale of the offered securities will be named in the accompanying prospectus supplement, and any commissions payable by us to that agent will be set forth in the accompanying prospectus supplement. Unless otherwise indicated in such accompanying prospectus supplement, any agent will be acting on a best efforts basis for the period of its appointment.

If so indicated in an accompanying prospectus supplement, we will authorize agents, underwriters or dealers to solicit offers by certain institutional investors to purchase securities, which offers provide for payment and delivery on a future date specified in such accompanying prospectus supplement. There may be limitations on the minimum amount that may be purchased by any such institutional investor or on the portion of the aggregate principal amount of the particular securities that may be sold pursuant to these arrangements.

Institutional investors to which offers may be made, when authorized, include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and such other institutions as may be approved by us. The obligations of any purchasers pursuant to delayed delivery and payment arrangements will only be subject to the following two conditions:

 

 

 

the purchase by an institution of the particular securities will not, at the time of delivery, be prohibited under the laws of any jurisdiction in the United States to which that institution is subject; and

 

 

 

 

if the particular securities are being sold to underwriters, we will have sold to those underwriters the total principal amount or number of those securities less the principal amount or number thereof, as the case may be, covered by such arrangements.

Underwriters will not have any responsibility in respect of the validity of these arrangements or the performance of us or institutional investors thereunder.

47


In connection with an offering of securities, the underwriters may purchase and sell securities in the open market. These transactions may include over-allotment, syndicate covering transactions and stabilizing transactions. Over-allotment involves sales of securities in excess of the principal amount of securities to be purchased by the underwriters in an offering, which creates a short position for the underwriters. Covering transactions involve purchases of the securities in the open market after the distribution has been completed in order to cover short positions. Stabilizing transactions consist of certain bids or purchases of securities made for the purpose of preventing or retarding a decline in the market price of the securities while the offering is in progress. Any of these activities may have the effect of preventing or retarding a decline in the market price of the securities being offered. They may also cause the price of the securities being offered to be higher than the price that otherwise would exist in the open market in the absence of these transactions. The underwriters may conduct these transactions in the over-the-counter market or otherwise. If the underwriters commence any of these transactions, they may discontinue them at any time.

Underwriters and agents may be entitled under agreements entered into with us to indemnification by us against civil liabilities, including liabilities under the Securities Act, or to contribution with respect to payments that the underwriters or agents may be required to make in that respect. Underwriters and agents or their affiliates may engage in transactions with, or perform services for, us or our subsidiaries or affiliates in the ordinary course of business.

48


LEGAL MATTERS

The validity of the securities will be passed upon for us by Louise M. Parent, Esq., our Executive Vice President and General Counsel, 200 Vesey Street, World Financial Center, New York, New York. In connection with particular offerings of the securities in the future, unless otherwise indicated in the applicable prospectus supplement, the validity of those securities will be passed upon for us by Ms. Parent.

EXPERTS

Our financial statements and management’s assessment of the effectiveness of internal control over financial reporting (which is included in Management’s Report on Internal Control over Financial Reporting), incorporated in this prospectus by reference to our Annual Report on Form 10-K for the year ended December 31, 2008, have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.

49


PART II—INFORMATION NOT REQUIRED IN PROSPECTUS

Item 14. Other Expenses of Issuance and Distribution .

The following is a statement of the estimated expenses (other than underwriting compensation) to be incurred by us in connection with a distribution of an assumed amount of $25,000,000,000 of securities registered under this registration statement. The assumed amount has been used to demonstrate the expenses of an offering and does not represent an estimate of the amount of securities that may be registered or distributed because such amount is unknown at this time.

 

 

 

 

 

SEC registration fee

 

 

$

 

0

*

 

 

 

Printing and engraving expenses

 

 

 

200,000

   

 

Legal fees and expenses

 

 

 

200,000

   

 

Blue Sky fees and expenses

 

 

 

5,000

   

 

Accounting fees and expenses

 

 

 

160,000

   

 

Fees and expenses of trustee, depositary and warrant agent

 

 

 

160,000

   

 

Fees of Rating Agencies

 

 

 

600,000

   

 

Miscellaneous

 

 

 

75,000

   

 

 

 

 

 

 

Total

 

 

$

 

1,400,000

   

 

 

 

 

 

 


 

 

*

 

 

  Deferred in accordance with Rules 456(b) and 457(r).

Item 15. Indemnification of Directors and Officers.

Article VI of the Registrant’s By-laws, as amended, provides as follows:

SECTION 6.1. DIRECTORS, OFFICERS AND EMPLOYEES. The corporation shall, to the fullest extent permitted by applicable law as the same exists or may hereafter be in effect, indemnify any person, made or threatened to be made, a party to, or who is otherwise involved in, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, legislative or investigative, by reason of the fact that such person, is or was or has agreed to become a director of the corporation, or is or was an officer or employee of the corporation, or serves or served or has agreed to serve any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise in any capacity at the request of the corporation, against judgments, fines, penalties, amounts paid in settlement and reasonable expenses, including attorneys’ fees actually and necessarily incurred in connection with such action or proceeding, or any appeal therein; provided, however, that no indemnification shall be provided to any such person if a judgment or other final adjudication adverse to the director, officer or employee establishes that (i) his acts were committed in bad faith or were the result of active and deliberate dishonesty and, in either case, were material to the cause of action so adjudicated, or (ii) he personally gained in fact a financial profit or other advantage to which he was not legally entitled. Any action or proceeding by or in the right of the corporation to procure a judgment in its favor or by or in the right of any other corporation of any type or kind, domestic or foreign, or any partnership, joint venture, trust, employee benefit plan or other enterprise, which any director, officer or employee serves or served or agreed to serve at the request of the corporation shall be included in the actions for which directors, officers and employees will be indemnified under the terms of this Section 6.1. Such indemnification shall include the right to be paid advances of any expenses incurred by such person in connection with such action, suit or proceeding, upon receipt of an undertaking by or on behalf of such person to repay such amount consistent with the provisions of applicable law. (B.C.L. Sections 721, 722, 723(c).)

SECTION 6.2 OTHER INDEMNIFICATION. The corporation may indemnify any person to whom the corporation is permitted by applicable law or these by-laws to provide indemnification or the advancement of expenses, whether pursuant to rights granted pursuant to, or provided by, the New York Business Corporation Law or any other law or these by-laws or other rights created by (i) a resolution of shareholders, (ii) a resolution of directors, or (iii) an agreement providing for such indemnification, it being expressly intended that these by-laws authorize the creation of other rights in any such manner. The right to be indemnified and to the reimbursement or advancement of expenses incurred in defending a proceeding in advance of its final disposition authorized by this Section 6.2, shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the certificate of

II-1


incorporation, by-laws, agreement, vote of shareholders or disinterested directors or otherwise. (B.C.L. Sections 721, 723(c).)

SECTION 6.3 MISCELLANEOUS. The right to indemnification conferred by Section 6.1, and any indemnification extended under Section 6.2, (i) is a contract right pursuant to which the person entitled thereto may bring suit as if the provisions thereof were set forth in a separate written contract between the corporation and such person, (ii) is intended to be retroactive to events occurring prior to the adoption of this Article VI, to the fullest extent permitted by applicable law, and (iii) shall continue to exist after the rescission or restrictive modification thereof with respect to events occurring prior thereto. The benefits of Section 6.1 shall extend to the heirs, executors, administrators and legal representatives of any person entitled to indemnification under this Article.

The form Underwriting Agreements filed or incorporated by reference as Exhibits 1(a) through (d) to this Registration Statement and the form Agency Agreement filed as Exhibit 1(e) to this Registration Statement provide for indemnification of, or contribution to, directors and officers of the Company by the underwriters and agents against certain liabilities under the Securities Act of 1933, as amended, in certain instances.

Item 16. Exhibits.

The “Exhibit Index” on pages II-6 and II-7 is hereby incorporated by reference.

Item 17. Undertakings.

The undersigned Registrant hereby undertakes:

(a) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

(i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;

(ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and

(iii) to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;

provided, however , that paragraphs (a)(i), (a)(ii) and (a)(iii) above do not apply if the registration statement is on Form S-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.

(b) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(c) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

(d) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:

(i) Each prospectus filed by a Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and

II-2


(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which the prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.

(e) That, for the purpose of determining liability of the Registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the Registrant undertakes that in a primary offering of securities of the Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:

(i) Any preliminary prospectus or prospectus of the Registrant relating to the offering required to be filed pursuant to Rule 424;

(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the Registrant or used or referred to by the Registrant;

(iii) The portion of any other free writing prospectus relating to the offering containing material information about the Registrant or its securities provided by or on behalf of the Registrant; and

(iv) Any other communication that is an offer in the offering made by the Registrant to the purchaser.

(f) That, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant’s annual report pursuant to Section 13 (a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(g) To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act.

(h) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, office or controlling person in connection with the securities being registered, that the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.

II-3


SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York on the 30th day of October, 2009.

AMERICAN EXPRESS COMPANY

By:

 

/s/ D ANIEL T. H ENRY


DANIEL T. HENRY
Executive Vice President and Chief
Financial Officer

 

 

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities indicated on the 30th day of October, 2009.

Signature

 

Title

 

*


KENNETH I. CHENAULT

 

 

Chairman, Chief Executive Officer and Director

*


DANIEL T. HENRY

 

 

Executive Vice President and Chief Financial Officer

*


JOAN C. AMBLE

 

 

Executive Vice President and Comptroller
(Chief Accounting Officer)

*


DANIEL F. AKERSON

 

 

Director

*


CHARLENE BARSHEFSKY

 

 

Director

*


URSULA M. BURNS

 

 

Director

*


PETER CHERNIN

 

 

Director

*


JAN LESCHLY

 

 

Director

 


RICHARD C. LEVIN

 

 

Director

*


RICHARD A. M C GINN

 

 

Director

II-4


Signature

 

Title

 

*


EDWARD D. MILLER

 

 

Director

*


STEVEN S REINEMUND

 

 

Director

*


ROBERT D. WALTER

 

 

Director

*


RONALD A. WILLIAMS

 

 

Director

*By:                       /s/ L OUISE M. P ARENT


LOUISE M. PARENT as Agent

 

 

 

II-5


EXHIBIT INDEX

 

 

 

Exhibit

 

Description

1(a)*

 

Underwriting Agreement Basic Provisions (Debt Securities).

1(b)**

 

Form of Underwriting Agreement for Convertible Debt Securities and Exchangeable Debt Securities.

1(c)**

 

Form of Underwriting Agreement for Equity Securities.

1(d)**

 

Form of Agency Agreement.

3(a)

 

Registrant’s Restated Certificate of Incorporation, dated May 29, 1997, as amended to date (incorporated by reference to Exhibit 4.1 of the Registrant’s Registration Statement on Form S-3 (File No. 333-32525), filed on July 31, 1997).

3(b)

 

Registrant’s Certificate of Amendment of the Certificate of Incorporation (incorporated by reference to Exhibit 3.1 of the Registrant’s Quarterly Report on Form 10-Q (File No. 1-7657) for the quarter ended March 31, 2000).

3(c)

 

Registrant’s Certificate of Amendment of the Certificate of Incorporation (incorporated by reference to Exhibit 3.3 of the Registrant’s Quarterly Report on Form 10-Q (File No. 1-7657) for the quarter ended March 31, 2008).

3(d)

 

Registrant’s Certificate of Amendment of the Certificate of Incorporation (incorporated by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K (File No. 1-7657), dated January 7, 2009 and filed on January 9, 2009).

3(e)

 

Registrant’s By-laws, as amended (incorporated by reference to Exhibit 3.5 of the Registrant’s Annual Report on Form 10-K (File No. 1-7657) for the year ended December 31, 2008).

4(a)*

 

Form of Note with optional redemption provisions.

4(b)*

 

Form of Debenture with optional redemption and sinking fund provisions.

4(c)*

 

Form of Original Issue Discount Note with optional redemption provisions.

4(d)*

 

Form of Zero Coupon Note with optional redemption provision.

4(e)*

 

Form of Variable Rate Note with optional redemption and repayment provisions.

4(f)*

 

Form of Extendible Note with optional redemption and repayment provisions.

4(g)*

 

Form of Fixed Rate Medium-Term Note.

4(h)*

 

Form of Floating Rate Medium-Term Note.

4(i)*

 

Form of Supplemental Indenture providing for an additional trustee.

4(j)*

 

Subordinated Indenture dated as of August 1, 2007, between the Registrant and The Bank of New York Mellon, as trustee.

4(k)*

 

Senior Indenture dated as of August 1, 2007, between the Registrant and The Bank of New York Mellon, as trustee.

4(l)**

 

Form of Deposit Agreement, including form of Depositary Receipt.

4(m)**

 

Form of Warrant Agreement for Common Shares and Preferred Shares (including form of Warrant Certificates).

4(n)**

 

Form of Warrant Agreement for Debt Securities (including form of Warrant Certificates).

4(o)**

 

Form of Currency Warrant Agreement (including form of Currency Warrant).

4(p)**

 

Form of Stock-Index Warrant Agreement.

4(q)**

 

Form of Warrant Agreement for Other Stock (including form of Warrant Certificate).

II-6


 

 

 

Exhibit

 

Description

4(r)

 

Form of Common Share Certificate (incorporated by reference to Exhibit 4 to the Registrant’s Registration Statement on Form 8-A/A Amendment No. 1 (File No. 1-7657), filed on June 12, 2000).

5*

 

Opinion and consent of Louise M. Parent, Esq.

12(a)

 

Computation in support of ratios of earnings to fixed charges with respect to the years ended December 31, 2004 through 2008 (incorporated by reference to Exhibit 12 to the Registrant’s annual report on Form 10-K for the year ended December 31, 2008) and for the nine months ended September 30, 2009 (incorporated by reference to Exhibit 12 to the Registrant’s quarterly report on Form 10-Q for the quarterly period ended September 30, 2009).

23(a)*

 

Consent of Counsel (included in Exhibit 5).

23(b)*

 

Consent of PricewaterhouseCoopers LLP.

24(a)*

 

Power of Attorney.

25(a)*

 

Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 of The Bank of New York Mellon (Senior Debt Securities).

25(b)*

 

Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 of the Bank of New York Mellon (Subordinated Debt Securities).


 

 

*

 

 

 

Filed herewith.

 

**

 

 

 

To be filed prior to or in connection with the first offering contemplated by such agreement as an exhibit to a Current Report on Form 8-K and incorporated herein by reference.

II-7


Exhibit 1(a)

AMERICAN EXPRESS COMPANY

DEBT SECURITIES

UNDERWRITING AGREEMENT BASIC PROVISIONS

To the Representative or
Representatives named in the
Terms Agreement referred to
below

American Express Company, a New York corporation (the “ Company ”), may issue and sell from time to time series of its debt securities registered under the registration statement referred to in Section 1(a) hereof. Such debt securities may have varying designations, denominations, currencies, interest rates and payment dates, maturities, redemption provisions and selling prices. The basic provisions set forth herein are intended to be incorporated by reference in a terms agreement of the type referred to below relating to the series of debt securities to be issued and sold by the Company pursuant thereto (the “ Securities ”) to the firm or firms named therein (each an “ Underwriter ” and together the “ Underwriters ”) for whom you (the “ Representatives ”) are acting as representatives. The Securities will be issued under an indenture, dated as of August 1, 2007, between the Company and The Bank of New York Mellon (formerly known as The Bank of New York), as trustee (such trust company, or such other trustee as may be named for the Securities, being hereafter referred to as the “ Trustee ”), as it may be supplemented or amended by one or more indentures supplemental thereto, the “ Indenture ”).

The obligation of the Underwriters to purchase, and the Company to sell, the Securities is evidenced by the terms agreement (the “ Terms Agreement ”) substantially in the form specified in Exhibit I hereto delivered at the time the Company determines to sell the Securities. The Terms Agreement specifies the firm or firms that will be Underwriters, the principal amount of the Securities to be purchased by each Underwriter, the purchase price to be paid by the Underwriters for the Securities, the public offering price, if any, of the Securities, whether the Underwriters are authorized to solicit institutional investors to purchase Securities pursuant to Delayed Delivery Contracts (as defined in Section 3(b)), certain terms thereof and the Underwriters’ compensation therefor and any terms of the Securities not otherwise specified in the Indenture (including, but not limited to, designations, denominations, currencies, interest rates and payment dates, maturity, redemption provisions and sinking fund requirements). The Terms Agreement specifies any details of the terms of the offering that should be reflected in the Final Prospectus. The Terms Agreement, together with the provisions hereof incorporated therein by reference, is herein referred to as this “ Agreement .”

Any reference herein to the Registration Statement, the Base Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 that were filed under the Exchange Act on or before the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the case may be; and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Base Prospectus, any Preliminary Final Prospectus or the Final


Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference. Certain terms used herein are defined in Section 19 hereof.

               1. Representations and Warranties . The Company represents and warrants to, and agrees with, each Underwriter as set forth below in this Section 1.

 

 

 

          (a) The Company meets the requirements for use of Form S-3 under the Act and has prepared and filed with the Commission an automatic shelf registration statement, as defined in Rule 405. Such Registration Statement, including any amendments thereto filed prior to the Execution Time, became effective upon filing. The Company may have filed with the Commission, as part of an amendment to the Registration Statement or pursuant to Rule 424(b), one or more Preliminary Final Prospectuses. The Company will file with the Commission a final prospectus supplement relating to the Securities in accordance with Rule 424(b). As filed, such final prospectus supplement shall contain all information required by the Act and the rules thereunder, and, except to the extent the Representatives shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the Base Prospectus and any Preliminary Final Prospectus) as the Company has advised you, prior to the Execution Time, will be included or made therein. The Registration Statement, at the Execution Time, meets the requirements set forth in Rule 415(a)(1)(x).

 

 

 

          (b) On each Effective Date, the Registration Statement did, and when the Final Prospectus is first filed (if required) in accordance with Rule 424(b) and on the Closing Date (as defined herein), the Final Prospectus (and any supplement thereto) will, comply in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder; on each Effective Date and at the Execution Time, the Registration Statement did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; on the Effective Date and on the Closing Date, the Indenture did or will comply in all material respects with the applicable requirements of the Trust Indenture Act and the rules thereunder; and on the date of any filing pursuant to Rule 424(b), as of its date and on the Closing Date, the Final Prospectus (together with any supplement thereto) will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided , however , that the Company makes no representations or warranties as to (i) that part of the Registration Statement that shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (ii) the information contained in or omitted from any document in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion in such document.

2



 

 

 

          (c) As of the Applicable Time, the Disclosure Package, when considered as a whole, did not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion therein.

 

 

 

          (d) (i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Sections 13 or 15 (d) of the Exchange Act or form of prospectus), (iii) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Securities in reliance on the exemption in Rule 163 and (iv) at the Execution Time (with such date being used as the determination date for purposes of this clause (iv)), the Company was or is (as the case may be) a Well-Known Seasoned Issuer. The Company agrees to pay the fees required by the Commission relating to the Securities within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).

 

 

 

          (e) (i) At the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Securities and (ii) as of the Execution Time (with such date being used as the determination date for purposes of this clause (ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an Ineligible Issuer.

 

 

 

          (f) Each Issuer Free Writing Prospectus does not include any information that conflicts with the information contained in the Registration Statement, including any document incorporated therein and any prospectus supplement deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished in writing to the Company by any Underwriter through the Representatives specifically for inclusion therein.

 

 

 

          (g) The consolidated historical financial statements and schedules of the Company included in each Preliminary Final Prospectus present fairly, and the consolidated historical financial statements and schedules of the Company included in the Final Prospectus will present fairly, in all material respects the financial condition, the results of operations and cash flows of the Company and its consolidated subsidiaries as of the dates and for the periods indicated, comply as to form with the applicable accounting requirements of the Act and have been prepared in conformity with generally accepted accounting principles, applied on a consistent basis throughout the periods involved (except as otherwise noted therein).

3



 

 

 

          (h) PricewaterhouseCoopers LLP are independent public accountants with respect to the Company within the meaning of the Act and the applicable published rules and regulations thereunder.

 

 

 

          (i) The Indenture and the Securities have been duly authorized; the Indenture has been duly qualified under the Trust Indenture Act; and the Indenture, when duly executed and delivered, and the Securities, when duly executed, authenticated, issued and delivered as contemplated hereby, by the Indenture and by the Delayed Delivery Contracts (as defined in Section 3(b)), if any, will constitute valid and legally binding obligations of the Company in accordance with their respective terms subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors’ rights generally and to general principles of equity regardless of whether such enforceability is considered in a proceeding in equity or at law; and the Securities and the Indenture conform in all material respects to the descriptions thereof in the Base Prospectus and any applicable Preliminary Final Prospectus or Final Prospectus.

 

 

 

          (j) Subsequent to the respective dates as of which information contained in the Registration Statement, the Base Prospectus or any Preliminary Final Prospectus is given, except as disclosed in the Disclosure Package, (i) there has not been any material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, (ii) neither the Company nor any of its subsidiaries has entered into any transaction not in the ordinary course of business material to the Company and its subsidiaries, taken as a whole, (iii) neither the Company nor any of its subsidiaries has incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business that are material in relation to the Company and its subsidiaries, taken as a whole, and (iv) there has been no change in the Company’s internal control over financial reporting that has materially affected, or is likely to materially affect, the Company’s internal control over financial reporting.

 

 

 

          (k) Each of the Company and its subsidiaries has been duly incorporated or otherwise constituted and is validly existing as a corporation or other legal entity in good standing under the laws of the jurisdiction in which it is chartered or organized with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package, each Preliminary Final Prospectus and the Final Prospectus; and each of the Company and its subsidiaries is duly qualified to do business as a foreign corporation or other entity and is in good standing under the laws of each jurisdiction that, in the opinion of counsel for the Company, requires such qualification, except where the failure to be so qualified would not, individually or in the aggregate, have a material adverse effect on the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole.

 

 

 

          (l) Neither the issuance or sale of the Securities, nor the execution, delivery and performance of this Agreement, the Indenture and any Delayed Delivery Contracts (as defined in Section 3(b)) and the consummation of any other transactions contemplated herein or in any Delayed Delivery Contracts will conflict with, or result in a breach or violation of, or result in the creation or imposition of any lien, charge or encumbrance

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upon any of the assets of the Company or any of its subsidiaries pursuant to (i) the charter or by-laws or other constitutive documents of the Company or any of its subsidiaries, (ii) the terms of the Indenture or any other indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or any of its subsidiaries is a party or bound or to which its or their property is subject, or (iii) to the best knowledge of the Company, any statute, law, rule, regulation, judgment, order or decree applicable to the Company, any of its subsidiaries or any of their respective properties of any court, regulatory body, administrative agency, governmental agency, arbitrator or other authority having jurisdiction over the Company or any of its subsidiaries or any of its or their properties, except, in the case of (ii) or (iii), where such conflict, breach or imposition of any lien, charge or encumbrance would not, individually or in the aggregate, have a material adverse effect on the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole.

 

 

 

          (m) To the best knowledge of the Company, no material action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property is pending or threatened that (i) could reasonably be expected to have a material adverse effect on the performance of this Agreement or the consummation of any of the transactions contemplated hereby or (ii) could reasonably be expected to have a material adverse effect on the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package.

 

 

 

          (n) Neither the Company nor any of American Express Banking Corp., American Express Travel Related Services Company, American Express Bank, FSB, American Express Centurion Bank, American Express Credit Corporation, American Express Limited and American Express International (the “ Principal Subsidiaries ”) is in violation or default of (i) any provision of its charter or bylaws or other constitutive documents, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it is a party or bound or to which its property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or such Principal Subsidiary or any of its properties, as applicable, except, in the case of (ii) or (iii), where such violation or default would not, individually or in the aggregate, have a material adverse effect on the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole.

 

 

 

          (o) No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and the Trust Indenture Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein.

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          (p) The Company and each of its subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.

 

 

 

          (q) There is and has been no failure on the part of the Company and any of the Company’s directors or officers, in their capacities as such, to comply with any provision of the Sarbanes Oxley Act of 2002 and the rules and regulations promulgated in connection therewith (the “ Sarbanes Oxley Act ”), including Section 402 related to loans and Sections 302 and 906 related to certifications.

 

 

 

          (r) The Company has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, any stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.

 

 

 

          (s) The Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof, will not be an “investment company”, as such term is defined in the Investment Company Act.

 

 

 

          (t) The Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act; such disclosure controls and procedures have been designed to ensure that material information relating to the Company and its subsidiaries is made known to the Company’s principal executive officer and principal financial officer by others within those entities; and such disclosure controls and procedures are effective.

               Any certificate signed by any officer of the Company and delivered to the Underwriters or Counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by the Company, as to matters covered thereby, to each Underwriter.

               2. Purchase and Sale . Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at the purchase price set forth in the Terms Agreement the principal amount of the Securities set forth opposite such Underwriter’s name in the Terms Agreement.

               3. Delivery and Payment .

 

 

 

          (a) Delivery of and payment for the Securities shall be made on the date and at the time specified in the Terms Agreement or at such time on such later date not more than three Business Days thereafter as the Representatives and the Company may determine (such date and time of delivery and payment for the Securities being herein called the “ Closing Date ”). The Securities shall be in global or definitive form and in such

6



 

 

 

denominations and registered in such names as you may require upon at least two business days’ notice prior to the Closing Date. Delivery of the Securities shall be made by the Company to the Representatives for the respective accounts of the several Underwriters against payment by the several Underwriters through the Representatives of the purchase price thereof to or upon the order of the Company by wire transfer payable in same-day funds to an account specified by the Company. Delivery of the Securities shall be made through the facilities of The Depository Trust Company unless the Representatives shall otherwise instruct.

 

 

 

          (b) If so authorized in the Terms Agreement, the Underwriters may solicit offers from investors of the types set forth in the Base Prospectus or any Preliminary Final Prospectus to purchase Securities from the Company pursuant to delayed delivery contracts (“ Delayed Delivery Contracts ”). Such contracts shall be substantially in the form of Exhibit II hereto but with such changes therein as the Company may approve. Securities to be purchased pursuant to Delayed Delivery Contracts are herein called “ Contract Securities .” When Delayed Delivery Contracts are authorized in the Terms Agreement, the Company will enter into a Delayed Delivery Contract in each case where a sale of Contract Securities arranged through you has been approved by the Company but, except as the Company may otherwise agree, such Delayed Delivery Contracts must be for at least the minimum principal amount of Contract Securities set forth in the Terms Agreement, and the aggregate principal amount of Contract Securities may not exceed the amount set forth in the Terms Agreement. The Company will advise you not later than 9:30 A.M., New York City time, on the third full business day preceding the Closing Date (or at such later time as you may otherwise agree) of the sales of the Contract Securities that have been so approved. You and the other Underwriters will not have any responsibility in respect of the validity or performance of Delayed Delivery Contracts.

 

 

 

          (c) The amount of Securities to be purchased by each Underwriter as set forth in the Terms Agreement shall be reduced by an amount that shall bear the same proportion to the total principal amount of Contract Securities as the principal amount of Securities set forth opposite the name of such Underwriter bears to the total principal amount of Securities set forth in the Terms Agreement, except to the extent that you determine that such reduction shall be otherwise than in such proportion and so advise the Company; provided , however , that the total principal amount of Securities to be purchased by all Underwriters shall be the total principal amount of Securities set forth in the Terms Agreement less the aggregate principal amount of Contract Securities.

               4. Offering by Underwriters . It is understood that the several Underwriters propose to offer the Securities for sale to the public as set forth in the Final Prospectus.

               5. Agreements . The Company agrees with the several Underwriters that:

 

 

 

          (a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed. The Company will promptly

7



 

 

 

advise the Representatives (1) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed and become effective, (3) of any request by the Commission or its staff for any amendment of the Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (4) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice that would prevent its use or the institution or threatening of any proceeding for that purpose and (5) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will promptly use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or prevention and, upon such issuance, occurrence or prevention, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or prevention, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.

 

 

 

          (b) To prepare a final term sheet, containing solely a description of the Securities, in a form approved by the Representatives and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.

 

 

 

          (c) Prior to the termination of the offering of the Securities, if there occurs an event or development as a result of which the Disclosure Package or any Issuer Free Writing Prospectus would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package or any Issuer Free Writing Prospectus may cease until it is amended or supplemented, and will amend or supplement, at the expense of the Company, the Disclosure Package or any such Issuer Free Writing Prospectus, as the case may be, to correct any such misstatements or omissions and supply any amendment or supplement to you in such quantities as you may reasonably request.

 

 

 

          (d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (1) notify the Representatives of such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement that will correct such statement or omission or effect such compliance, (3) use its best efforts to have any

8



 

 

 

amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (4) supply any supplemented Final Prospectus to you in such quantities as you may reasonably request.

 

 

 

          (e) As soon as practicable, the Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Company and its subsidiaries (which need not be audited) covering a 12-month period beginning after the date on which the Final Prospectus is filed pursuant to Rule 424 under the Act that will satisfy the provisions of Section 11(a) of the Act and Rule 158.

 

 

 

          (f) The Company will furnish to the Underwriters copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Final Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Underwriters may reasonably request.

 

 

 

          (g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will pay any fee of the Financial Industry Regulatory Authority, Inc. (“ FINRA ”), in connection with its review of the offering; provided , however , that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.

 

 

 

          (h) The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated, will pay all expenses incident to the performance of its obligations hereunder, including, without limiting the generality of the foregoing, all costs, taxes and expenses incident to the issue and delivery of the Securities, all fees and expenses of the Company’s counsel and accountants, and all costs and expenses incident to the preparing, printing, filing and distributing of all documents relating to the offering, and will reimburse the Underwriters for any expenses and disbursements (including fees and disbursements of counsel not exceeding the amount, if any, specified in the Terms Agreement) incurred by them in connection with the matters referred to in Section 5(g) hereof and the preparation of memoranda relating thereto, for any filing fee of FINRA relating to the Securities, and for any fees charged by investment rating agencies for rating the Securities. If the sale of Securities provided for in this Agreement is not consummated by reason of any failure, refusal or inability on the part of the Company to perform any agreement on its part to be performed, or because any other condition of the Underwriters’ obligations hereunder required to be fulfilled by the Company is not fulfilled, the Company will reimburse the Underwriters for all reasonable out-of-pocket disbursements (including fees and disbursements of counsel) incurred by the Underwriters in connection with the proposed purchase and sale of the Securities.

 

 

 

          (i) If so stated in the Terms Agreement, the Company will use its best efforts to cause an application for the listing of the Securities on The New York Stock Exchange,

9



 

 

 

Inc. or listing or quotation on such other securities exchange or automatic quotation system specified in the Terms Agreement and for the registration of the Securities under the Exchange Act to become effective.

 

 

 

          (j) The Company agrees that, unless it obtains the prior written consent of the Representatives, and each Underwriter, severally and not jointly, agrees with the Company that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided , however , that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II to the Terms Agreement. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “ Permitted Free Writing Prospectus .” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.

 

 

 

          (k) The Company will not, without your consent, offer or sell any debt securities denominated in the currency in which the Securities are denominated having a maturity of more than one year (except under prior contractual commitments or pursuant to bank credit agreements) other than the Securities or publicly announce an intention to effect any such transaction during the period beginning on the Execution Time and ending on the business day immediately following the Closing Date.

 

 

 

          (l) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.

               6. Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy, in all material respects, of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date; to the accuracy, in all material respects, of the statements of the Company made in any certificates pursuant to the provisions hereof; to the performance by the Company in all material respects of its obligations hereunder and to the following additional conditions:

 

 

 

          (a) The Final Prospectus, and any supplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any

10



 

 

 

notice that would prevent its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.

 

 

 

          (b) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any material change or decrease specified in the letter or letters referred to in paragraph (g) of this Section 6; (ii) any material change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) or (iii) any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change the effect of which, in any case referred to in clause (i), (ii) or (iii) above, in the judgment of the Representatives, makes it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).

 

 

 

          (c) The Company shall have requested and caused counsel for the Company, to have furnished to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, to the effect that:


 

 

 

          (i) The Company and each of its Principal Subsidiaries have been duly incorporated and are validly existing and in good standing under the laws of their respective jurisdictions of incorporation, and have all corporate power and authority necessary to own their respective properties and conduct the businesses in which they are engaged as described in the Registration Statement; and except as may be disclosed in the Registration Statement, all outstanding shares of capital stock of each of the Principal Subsidiaries are owned by the Company directly, or indirectly through wholly-owned subsidiaries, free and clear of any lien, pledge and encumbrance or, to the best of such counsel’s knowledge, any claim of any third party, except as permitted by the Indenture;

 

 

 

          (ii) The Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law, and to an implied covenant of good faith and fair dealing); and the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the

11



 

 

 

Underwriters pursuant to this Agreement (and, in the case of any Contract Securities, pursuant to the Delayed Delivery Contracts with respect thereto), will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture;

 

 

 

          (iii) The Indenture conforms in all material respects to the description thereof in the Registration Statement, the Base Prospectus and any Preliminary Final Prospectus and, at the Closing Date, the Indenture will conform in all material respects to the description thereof in the Final Prospectus;

 

 

 

          (iv) The Registration Statement has become effective under the Act; any required filing of the Base Prospectus, any Preliminary Final Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued, no proceedings for that purpose have been instituted or threatened, and the Registration Statement and the Final Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder; and such counsel has no reason to believe that on the Effective Date the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Final Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements or schedules and other financial and statistical information contained therein, as to which such counsel need express no opinion) and the statements included or incorporated by reference in the Final Prospectus under the heading “Description of Debt Securities” and any similar headings, insofar as such statements summarize documents specifically discussed therein, are accurate and fair summaries of such documents;

 

 

 

          (v) No order directed to any document incorporated by reference in the Final Prospectus has been issued and, to the knowledge of such counsel, no challenge has been made to the accuracy or adequacy of any such document, except as described in the Registration Statement;

 

 

 

          (vi) Such counsel has no reason to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in the Disclosure Package and the final term sheet prepared and filed pursuant to Section 5(b) hereto, when taken together as a whole, at the Applicable Time contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading;

12



 

 

 

          (vii) Such counsel does not know of any contracts or other documents which are required to be filed as exhibits to the Registration Statement by the Act or by the rules and regulations of the Commission thereunder, or which are required to be filed by the Exchange Act or the Trust Indenture Act or the rules and regulations of the Commission thereunder as exhibits to any document incorporated by reference in the Prospectus, which have not been filed as exhibits to the Registration Statement or to such document or incorporated therein by reference as permitted by such rules and regulations of the Commission;

 

 

 

          (viii) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company;

 

 

 

          (ix) No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and the Trust Indenture Act, and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement, in any Delayed Delivery Contract and in the Registration Statement and the Final Prospectus and such other approvals (specified in such opinion) as have been obtained;

 

 

 

          (x) To the best of such counsel’s knowledge, neither the Company nor any of its Principal Subsidiaries is in violation of its corporate charter or by-laws, or, to the best of such counsel’s knowledge, in default under any agreement, indenture or instrument the effect of any of which would be material to the Company and its subsidiaries taken as a whole;

 

 

 

          (xi) Neither the execution and delivery of the Indenture, the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to (i) the charter or by-laws of the Company or any of its Principal Subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument known to such counsel to which the Company or any of its Principal Subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company, any of its Principal Subsidiaries or any of their respective properties of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or its Principal Subsidiaries or any of its or their properties, except, in the case of (ii) and (iii), where any such breach, violation or default would not be material to the Company and its subsidiaries, taken as a whole;

 

 

 

          (xii) Except as required by the Act, the Exchange Act, the Trust Indenture Act and applicable state securities laws, no consent, authorization or order of, or filing or registration with, any court or governmental agency is required for the execution, delivery and performance of this Agreement, any Delayed Delivery

13



 

 

 

Contract and the Indenture, except as has been duly obtained or made and is in full force and effect;

 

 

 

          (xiii) Such counsel does not know of any litigation or any governmental proceeding pending or threatened against the Company or any of its subsidiaries which would affect the subject matter of this Agreement or the Indenture or is required to be disclosed in the Registration Statement which is not disclosed and correctly summarized therein; and

 

 

 

          (xiv) The Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof, will not be an “investment company”, as such term is defined in the Investment Company Act.


 

 

 

In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New York, or the federal laws of the United States, to the extent such counsel deems proper and specified in such opinion, upon the opinion of other counsel of good standing whom such counsel believes to be reliable and who are satisfactory to Counsel for the Underwriters and (B) as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (e) shall also include any supplements thereto at the Closing Date.

 

 

 

          (d) You shall have received from Counsel for the Underwriters such opinion or opinions dated the Closing Date with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.

 

 

 

          (e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board of Directors, the President or any Vice President and by the Treasurer or an Assistant Treasurer, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, the Disclosure Package and any supplements or amendments thereto and this Agreement and that:


 

 

 

          (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied in all material respects with all the agreements and satisfied, in all material respects, all the conditions on its part to be performed or satisfied at or prior to the Closing Date;

 

 

 

          (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and

14



 

 

 

          (iii) since the date of the most recent financial statements included or incorporated by reference in the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).


 

 

 

          (f) The Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming the matters set forth in Exhibit III hereto. Additionally, if any of the audited financial statements or financial statement schedules included or incorporated by reference in the Registration Statement and the Final Prospectus have not been audited by PricewaterhouseCoopers LLP, the Company shall have requested and caused such other independent public accountants as have audited such financial statements or financial statement schedules to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, confirming those matters set forth in Exhibit III that are applicable to the audit engagement of such other independent public accountants. References to the Final Prospectus in the letters furnished under this paragraph (f) will include any supplement thereto at the date of the letter.

 

 

 

          (g) Prior to the Closing Date, the Company shall have furnished to you such further information, certificates and documents as the Representatives may reasonably request.

               If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.

               7. Reimbursement of Underwriters’ Expenses . If the sale of the Securities provided for herein is not consummated because any condition to the obligations of the Underwriters set forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 10 hereof or because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provision hereof other than by reason of a default by any of the Underwriters, the Company will reimburse the Underwriters severally through the Representatives for all out-of-pocket expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by them in connection with the proposed purchase and sale of the Securities.

               8. Indemnification and Contribution .

15



 

 

 

          (a) The Company agrees to indemnify and hold harmless each Underwriter, the directors, officers, employees and agents of each Underwriter and each person who controls any Underwriter within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the registration statement for the registration of the Securities as originally filed or in any amendment thereof, or in the Base Prospectus, any Preliminary Final Prospectus, the Final Prospectus, any Issuer Free Writing Prospectus, any issuer information filed or required to be filed pursuant to Rule 433(d) or the information contained in the final term sheet required to be prepared and filed pursuant to Section 5(b) hereto, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided , however , that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon (x) any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion therein or (y) that part of the Registration Statement that shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act.

 

 

 

          (b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who signs the Registration Statement, and each person who controls the Company within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives specifically for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability that any Underwriter may otherwise have.

 

 

 

          (c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the

16



 

 

 

indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below); provided , however , that such counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and does not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of an indemnified party.

 

 

 

          (d) In the event that the indemnity provided in paragraph (a), (b) or (c) of this Section 8 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company and the Underwriters severally agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively “ Losses ”) to which the Company and one or more of the Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and by the Underwriters on the other from the offering of the Securities; provided , however , that in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company and the Underwriters severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and of the Underwriters on the other in connection with the statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the Company shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by it, and

17



 

 

 

benefits received by the Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the Final Prospectus. Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Company on the one hand or the Underwriters on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation that does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each person who controls an Underwriter within the meaning of either the Act or the Exchange Act and each director, officer, employee and agent of an Underwriter shall have the same rights to contribution as such Underwriter, and each person who controls the Company within the meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this paragraph (d).

 

 

 

          (e) The obligations of the Company under this Section 8 shall be in addition to any liability that the Company may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter within the meaning of the Act or the Exchange Act; and the obligations of the Underwriters under this Section 8 shall be in addition to any liability that the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each director of the Company (including any person who, with his consent, is named in the Registration Statement as about to become a director of the Company), to each officer of the Company who has signed the Registration Statement and to each person, if any, who controls the Company within the meaning of the Act or the Exchange Act.

               9. Default by an Underwriter . If any one or more Underwriters shall fail to purchase and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions that the principal amount of Securities set forth opposite their names in the Terms Agreement bears to the aggregate principal amount of Securities set forth opposite the names of all the remaining Underwriters) the Securities that the defaulting Underwriter or Underwriters agreed but failed to purchase; provided , however , that in the event that the aggregate principal amount of Securities that the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate principal amount of Securities set forth in the Terms Agreement, the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Securities, and if arrangements satisfactory to you and the Company for the purchase of such Securities by other persons are not made within 36 hours after such failure, this Agreement will terminate without

18


liability to any non-defaulting Underwriter or the Company. In the event of a default by any Underwriter as set forth in this Section 9, the Closing Date shall be postponed for such period, not exceeding five Business Days, as the Representatives shall determine in order that the required changes in the Registration Statement and the Final Prospectus or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company and any non-defaulting Underwriter for damages occasioned by its default hereunder.

               10. Termination . This Agreement shall be subject to termination by the Representatives, by notice given to the Company prior to delivery of and payment for the Securities, if at any time prior to such time (i) trading in the Company’s common stock shall have been suspended by the Commission or the New York Stock Exchange or trading in securities generally shall have been suspended or materially limited or minimum prices shall have been established on such Exchange, (ii) a banking moratorium shall have been declared either by federal or New York State authorities or a material disruption in securities settlement or clearance services in the United States or (iii) there shall have occurred any outbreak of major hostilities in which the United States is involved, declaration by the United States of a national emergency or war, or other substantial national or international calamity or crisis the effect of which on financial markets is such as to make it, in the reasonable judgment of the Representatives, impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Final Prospectus (exclusive of any supplement thereto). Any such termination shall be without liability of any party to any other party except that the provisions of Section 5(h) and Section 8 shall at all times be effective. If you elect to terminate this Agreement as provided in this Section 10, the Company shall be notified promptly by you by telephone or facsimile, confirmed by letter.

               11. Representations and Indemnities to Survive . The respective agreements, warranties, indemnities and other statements of the Company or its officers, and of the Underwriters, set forth in or made pursuant to this Agreement will remain in full force and effect regardless of any investigation made by or on behalf of any Underwriter or any controlling persons referred to in Section 8 hereof, and will survive delivery of and payment for the Securities.

               12. Notices . All notices or communications hereunder shall be in writing and if sent to the Representatives will be mailed, delivered or telefaxed to you at your address set forth for that purpose in the Terms Agreement, or if sent to the Company, will be mailed, delivered or telefaxed (to fax no. +1 212 640 2409) and confirmed to it at American Express Company, 200 Vesey Street, New York, New York 10285, Attention of the Treasurer. Any party to this Agreement may change such address for notices by sending to the parties to this Agreement written notice of a new address for such purpose.

               13. Successors . This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers, directors, employees, agents and controlling persons referred to in Section 8 hereof, and no other person will have any right or obligation hereunder.

               14. No Fiduciary Duty . The Company hereby acknowledges that (a) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the Underwriters and any affiliate through which it

19


may be acting, on the other, (b) the Underwriters are acting as principal and not as an agent or fiduciary of the Company and (c) the Company’s engagement of the Underwriters in connection with the offering and the process leading up to the offering is as independent contractors and not in any other capacity. Furthermore, the Company agrees that it is solely responsible for making its own judgments in connection with the offering (irrespective of whether any of the Underwriters has advised or is currently advising the Company on related or other matters). The Company agrees that it will not claim that the Underwriters have rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto.

               15. Integration . This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof.

               16. Applicable Law . This Agreement will be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York.

               17. Counterparts . This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement.

               18. Headings . The section headings used herein are for convenience only and shall not affect the construction hereof.

               19. Definitions . The terms that follow, when used in this Agreement, shall have the meanings indicated.

 

 

 

          “Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.

 

 

 

          “Applicable Time” shall mean [_______________], New York City time, on the date of the Terms Agreement.

 

 

 

          “Base Prospectus” shall mean the prospectus referred to in paragraph 1(a) above contained in the Registration Statement at the Effective Date.

 

 

 

          “Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City.

 

 

 

          “Commission” shall mean the Securities and Exchange Commission.

 

 

 

          “Counsel for the Underwriters” shall mean [_______________].

 

 

 

          “Disclosure Package” shall mean (i) the Base Prospectus, (ii) the Preliminary Final Prospectus used most recently prior to the Execution Time, (iii) the Issuer Free Writing Prospectus identified in Schedule II of the Terms Agreement (excluding the treasury benchmark, treasury price, treasury yield, re-offer spread to benchmark, and re-offer yield included therein) and (iv) any other Free Writing Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package.

20



 

 

 

          “Effective Date” shall mean each date and time that the Registration Statement and any post-effective amendment or amendments thereto became or become effective.

 

 

 

          “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.

 

 

 

          “Execution Time” shall mean the date and time that the Terms Agreement is executed and delivered by the parties hereto.

 

 

 

          “Final Prospectus” shall mean the prospectus supplement relating to the Securities that was first filed pursuant to Rule 424(b) after the Execution Time, together with the Base Prospectus.

 

 

 

          “Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.

 

 

 

          “Investment Company Act” shall mean the Investment Company Act of 1940, as amended.

 

 

 

          “Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433.

 

 

 

          “Preliminary Final Prospectus” shall mean any preliminary prospectus supplement to the Base Prospectus that describes the Securities and the offering thereof and is used prior to filing of the Final Prospectus, together with the Base Prospectus.

 

 

 

          “Registration Statement” shall mean the registration statement referred to in paragraph 1(a) above, including exhibits and financial statements and any prospectus supplement relating to the Securities that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant to Rule 430B, as amended on each Effective Date and, in the event any post-effective amendment thereto becomes effective prior to the Closing Date, shall also mean such registration statement as so amended.

 

 

 

          “Rule 158,” “Rule 163,” “Rule 164,” “Rule 172,” “Rule 405,” “Rule 415,” “Rule 424”, “Rule 430B” and “Rule 433” refer to such rules under the Act.

 

 

 

          “Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended and the rules and regulations of the Commission promulgated thereunder.

 

 

 

          “Well-Known Seasoned Issuer” shall mean a well-known seasoned issuer, as defined in Rule 405.

21


Exhibit 4(a)

Form of Global Note with Optional Redemption Provisions

THIS NOTE IS A GLOBAL NOTE (“GLOBAL NOTE”) WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE TO THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO A NOMINEE FOR DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO AMERICAN EXPRESS COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

(Form of Face of Note)

AMERICAN EXPRESS COMPANY

% Senior Note due

 

 

 

No.

($) (if not

CUSIP:

 

in U.S. dollars
specify currency)

ISIN:

A MERICAN E XPRESS C OMPANY , a New York corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of          (Dollars) (if not in U.S. dollars, specify currency) on           , and to pay interest (computed on the basis of a 360-day year and of twelve 30-day months) thereon from          or from the most recent Interest Payment Date to which interest has been paid or duly provided for, on          and          in each year, commencing           , and at maturity, at the rate per annum specified in the title of this Note, until the principal hereof is paid or made available for payment (and, in the case of a default in the payment of principal or interest, at the rate      % per annum on such overdue principal and (to the extent that the payment of such interest shall be legally enforceable) on such overdue interest which shall accrue from the date of such default to the date payment of such principal or interest has been made or duly provided for). The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in said Indenture, be paid to the Person in whose name this Note (or one or more Predecessor Securities) is registered at the close of business on          or          , as the case may be, next preceding such Interest Payment Date. In any case where such Interest Payment Date shall not be a Business Day, then (notwithstanding any other provision of said Indenture or the Notes) payment of such interest need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on such date, and, if such payment is so made, no interest shall accrue for the period from and after such date. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the registered Holder on           or          , as the case may be, and may be paid to the Person in whose name this Note (or one or more Predecessor Securities) is registered at the close of business on a Record Date for the payment of such Defaulted Interest to be fixed by the Trustee for the Notes, notice whereof shall be given to Holders of Notes not less than ten (10) days prior to such record date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture. Payment of the principal of (and premium, if any) and interest on this Note will be made at the office or agency of the Company maintained for that purpose in the City of          ,          , or, at the option of the Holder, at the office or agency of the Company maintained for that purpose in                               , in such coin or currency of the (United States of America) (if foreign currency, insert relevant country) as at the time of payment is legal tender for


payment of public and private debts (if composite currency insert “in units of (composite currency)”) (if for foreign currency or composite currency, insert the following language: “equal to the U.S. dollar equivalent thereof determined in such manner as described on the reverse hereof”) (if holder can elect foreign currency or composite currency, insert the following language: “( or, if the holder of the Note shall elect to be paid in the (relevant currency), as provided below, in (relevant currency)”); provided, however, that at the option of the Company payment of interest may be made (subject to collection) by check mailed to the address of the Person entitled thereto as such address shall appear on the Securities Register.

          (If holder can elect foreign currency or composite currency, insert the following language: “The holder may elect to receive payment of the principal of or interest on this Note in (relevant currency) by filing a written request for such payment with the corporate trust office of the Trustee, prior to the relevant Record Date in the case of any payment of interest and at least fifteen (15) days prior to the due date in the case of payment of principal. The holder may elect to receive (relevant currency) for all principal and interest payments and need not file a separate election form for each payment. Such election shall remain in effect until changed by written notice to the Trustee prior to the Record Date in the case of payment of interest and at least fifteen (15) days prior to the due date in the case of payment of principal”) (if for composite currency, insert the following language: “If the (composite currency) ceases to be used both within the          monetary system and for the settlement of transactions by public institutions of or within the           communities, then with respect to each date for the payment of interest or principal of this Note occurring after the last date on which the (composite currency) was so used, the U.S. dollar shall be the currency of payment. The U.S. dollar amount to be paid by the Company to the Trustee and by the Trustee to the holder of this Note with respect to such payment date shall be the U.S. dollar equivalent of the (composite currency) as determined           prior to the payment date.”)

          Additional provisions of this Note are contained on the reverse hereof and such provisions shall have the same effect as though fully set forth in this place.

          Unless the certificate of authentication hereon has been executed by or on behalf of the Trustee for the Notes by manual signature, this Note shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.

          IN WITNESS WHEREOF, AMERICAN EXPRESS COMPANY has caused this instrument to be duly executed under its corporate seal.

 

 

 

 

Dated:

 

 

 

 

A MERICAN E XPRESS C OMPANY

 

 

 

 

 

By 

 

 

 

 


 

 

President

 

 

 

Attest:

 

 

 

 

 


 

 

Secretary

 

 

TRUSTEE’S CERTIFICATE
OF AUTHENTICATION

This is one of the Securities described
in the within-mentioned Indenture.

 

 

 

 

THE BANK OF NEW YORK MELLON

 

 

As Trustee

 

 

 

 

 

By 

 

 

 

 


 

 

Authorized Signatory

 

 

2



 

(Form of Reverse of Global Note)

 

AMERICAN EXPRESS COMPANY


 

 

No.

% Senior Note due

          This Note is one of a duly authorized issue of debentures, notes or other evidences of indebtedness (hereinafter called the “Securities”) of the Company of the series hereinafter specified, which series is limited in aggregate principal amount to ($) (if not in U.S. dollars, specify currency)          (except as provided in the Indenture hereinafter mentioned), all such Securities issued and to be issued under an indenture dated as of August 1, 2007, between the Company and The Bank of New York Mellon (formerly known as The Bank of New York), as Trustee, (as supplemented from time to time) (the “Indenture”), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the rights and limitation of rights thereunder of the Holders of the Securities and of the rights, obligations, duties and immunities of the Trustee for each series of Securities and of the Company, and the terms upon which the Securities are and are to be authenticated and delivered. As provided in the Indenture, the Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may be denominated in currencies other than U.S. dollars (including composite currencies), may mature at different times, may bear interest, if any, at different rates, may be subject to different redemption provisions, if any, may be subject to different sinking, purchase or analogous funds, if any, may be subject to different covenants and Events of Default and may otherwise vary as in the Indenture provided or permitted. This Note is one of a series of the Securities designated          % Senior Notes due           (the “Notes”). Additional notes on the same terms and conditions and with the same CUSIP number as those of the Notes may be issued by the Company without the consent of the Holders of the Notes. Such further notes shall be consolidated and form a single series with the Notes.

          (Insert provisions regarding payment in other currency if series is not denominated in U.S. dollars.)

          (The Notes may not be redeemed prior to Stated Maturity.) (The Notes may not be redeemed at the option of the Company prior to          . On and after that date and prior to Stated Maturity the Company may, at its option, redeem the Notes, either as a whole or from time to time in part, at 100% of the principal amount thereof, together with interest accrued and unpaid thereon to the Redemption Date.)

          Notice of redemption shall be mailed to the registered Holders of the Notes designated for redemption at their addresses as the same shall appear on the Securities Register, not less than 30 days nor more than 60 days prior to the Redemption Date, subject to all the conditions and provisions of the Indenture.

          In the event of redemption of this Note in part only, a new Note or Notes for the amount of the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.

          (Insert any alternative redemption provisions.)

          (The Indenture contains provisions for defeasance and discharge (at the Company’s option) of (either) the entire principal of all the Securities of any series or of certain covenants in the indenture upon compliance by the Company with certain conditions set forth therein.)

          If an Event of Default with respect to the Notes, as defined in the Indenture, shall occur and be continuing, the principal of all the Notes may be declared due and payable in the manner and with the effect provided in the Indenture.

          The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities under the Indenture at any time by the Company with the consent of the Holders of not less than a majority in aggregate principal amount of the Securities at the time Outstanding of each series affected thereby. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities of any series at the time Outstanding, on behalf of the Holders of all the Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture

3


and their consequences with respect to such series. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note.

          No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any) and interest on this Note at the times, place and rate, and in the coin or currency, herein prescribed.

          As provided in the Indenture and subject to certain limitations therein set forth, this Note is transferable on the Securities Register of the Company, upon surrender of this Note for registration of transfer at the office or agency of the Company to be maintained for that purpose in the City of          ,          , or, at the option of the Holder, at the office or agency of the Company to be maintained for that purpose in          , or at any other office or agency of the Company maintained for that purpose, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Securities Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

          (Transfer of this Note will automatically transfer the warrant to purchase debt securities attached hereto (until the Detachable Date as set forth in the warrant)).

          The Notes are issuable only in registered form without coupons in denominations of ($) (if not in U.S. dollars, specify currency)           and any multiple of ($) (if not in U.S. dollars, specify currency)          . As provided in the Indenture and subject to certain limitations therein set forth, Notes are exchangeable for a like aggregate principal amount of Notes of a like tenor and of a different authorized denomination, as requested by the Holder surrendering the same.

          No service charge shall be made for any such transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with the registration of such transfer or exchange, other than certain exchanges not involving any transfer.

          Certain terms used in this Note that are defined in the Indenture have the meanings set forth therein.

          This Note shall for all purposes be governed by, and construed in accordance with, the laws of the State of New York.

          The Company, the Trustee for the Notes and any agent of the Company or such Trustee may treat the Person in whose name this Note is registered as the owner hereof for the purpose of receiving payment as herein provided and for all other purposes, whether or not this Note be overdue, and neither the Company, such Trustee nor any such agent shall be affected by notice to the contrary.

4


Exhibit 4(b)

Form of Global Debenture with Optional Redemption and Sinking Fund Provisions

THIS NOTE IS A GLOBAL NOTE (“GLOBAL NOTE”) WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE TO THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO A NOMINEE FOR DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO AMERICAN EXPRESS COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

(Form of Face of Note)

AMERICAN EXPRESS COMPANY
% Senior Note due

 

 

 

No.

(S) (if not in

CUSIP:

 

U.S. dollars

ISIN:

 

specify currency)

 

          AMERICAN EXPRESS COMPANY, a New York corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of               (Dollars) (if not in U.S. dollars specify currency) on               , and to pay interest (computed on the basis of a 360-day year of twelve 30-day months) thereon from                          or from the most recent Interest Payment Date to which interest has been paid or duly provided for, on                      and                  in each year, commencing             , and at maturity, at the rate per annum specified in the title of this Note, until the principal hereof is paid or made available for payment (and, in the case of a default in the payment of principal or interest, at the rate     % per annum on such overdue principal and (to the extent that the payment of such interest shall be legally enforceable) on such overdue interest which shall accrue from the date of such default to the date payment of such principal or interest has been made or duly provided for). The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in said Indenture, be paid to the Person in whose name this Note (or one or more Predecessor Securities) is registered at the close of business on                    or                    , as the case may be, next preceding such Interest Payment Date. In any case where such Interest Payment Date shall not be a Business Day, then (notwithstanding any other, provision of said Indenture or the Notes) payment of such interest need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on such date, and, if such payment is so made, no interest shall accrue for the period from and after such date. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the registered Holder on                    or                    , as the case may be, and may be paid to the Person in whose name this Note (or one or more Predecessor Securities) is registered at the close of business on a record date for the payment of such Defaulted Interest to be fixed by the Trustee for the Notes. Notice whereof shall be given to Holders of Notes not less than ten (10) days prior to such Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture. Payment of the principal of (and premium, if any) and interest on this Note will be made at the office or agency of the Company maintained for that purpose in the City of                    ,               or, at the option of the Holder, at the office or agency of the Company maintained for that purpose in                                             , in such coin or currency of the (United States of America) (if foreign currency, insert relevant country) as at the time of payment is legal tender for payment of public and private debts (if


composite currency, insert “in units of (composite currency)”) (if for foreign currency or composite currency, insert the following language: equal to the U.S. dollar equivalent thereof determined in such manner as described on the reverse hereof”) (if holder can elect foreign currency or composite currency, insert the following language: “(or, if the holder of the Note shall elect to be paid in the (relevant currency), as provided below, in (relevant currency)”); provided, however, that at the option of the Company payment of interest may be made (subject to collection) by check mailed to the address of the Person entitled thereto as such address shall appear on the Securities Register.

          (If holder can elect foreign currency or composite currency, insert the following language: “The holder may elect to receive payment of the principal of or interest on this Note in (relevant currency) by filing a written request for such payment with the corporate trust office of the Trustee, prior to the relevant Record Date in the case of any payment of interest and at least fifteen (15) days prior to the due date in the case of payment of principal. The holder may elect to receive (relevant currency) for all principal and interest payments and need not file a separate election form for each payment. Such election shall remain in effect until changed by written notice to the Trustee prior to the Record Date in the case of payment of interest and at least fifteen (15) days prior to the due date in the case of payment of principal”) (if for composite currency, insert the following language: “If the (composite currency) ceases to be used both within the               monetary system and for the settlement of transactions by public institutions of or within the               communities, then with respect to each date for the payment of interest or principal of this Note occurring after the last date on which the (composite currency) was so used, the U.S. dollar shall be the currency of payment. The U.S. dollar amount to be paid by the Company to the Trustee and by the Trustee to the holder of this Note with respect to such payment date shall be the U.S. dollar equivalent of the (composite currency) as determined by a          prior to the payment date.”)

          Additional provisions of this Note are contained on the reverse hereof and such provisions shall have the same effect as if set forth at this place.

          Unless the certificate of authentication hereon has been executed by or on behalf of the Trustee for the Notes by manual signature, this Note shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.

          IN WITNESS WHEREOF, AMERICAN EXPRESS COMPANY has caused this instrument to be duly executed under its corporate seal.

 

 

 

 

Dated:

 

 

 

 

 

 

 

AMERICAN EXPRESS COMPANY

 

 

 

 

 

By

 

 

 

 


 

 

 

President

Attest:

 

 

 

 

 


 

 

Secretary

 

 

TRUSTEE’S CERTIFICATE
OF AUTHENTICATION

This is one of the Securities described
in the within-mentioned Indenture.

THE BANK OF NEW YORK MELLON
          As Trustee

 

 

 

 

 

By

 

 

 

 


 

 

 

Authorized Signatory

 

2


(Form of Reverse of Global Note)

AMERICAN EXPRESS COMPANY

 

 

 

No.

% Senior Note due

 

          This Note is one of a duly authorized issue of debentures, notes or other evidences of indebtedness (hereinafter called the “Securities”) of the Company of the series hereinafter specified, which series is limited in aggregate principal amount to ($) (if not in U.S. dollars specify currency)                         (except as provided in the Indenture hereinafter mentioned), all such Securities issued and to be issued under an indenture dated as of August 1, 2007, between the Company and The Bank of New York Mellon (formerly known as The Bank of New York), as Trustee, (as supplemented from time to time) (the “Indenture”), to which Indenture and all indentures supplemental thereto reference is hereby made for a specification of the rights and limitation of rights thereunder of the Holders of the Securities and the rights, obligations, duties and immunities of the Trustee for each series of Securities and of the Company, and the terms upon which the Securities are and are to be authenticated and delivered. As provided in the Indenture, the Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may be denominated in currencies other than U.S. dollars (including composite currencies), may mature at different times, may bear interest, if any, at different rates, may be subject to different redemption provisions, if any, may be subject to different sinking, purchase or analogous funds, if any, may be subject to different covenants and Events of Default and may otherwise vary as in the Indenture provided or permitted. This Note is one of a series of the Securities designated as          % Senior Notes due                                   (the “Notes”). Additional notes on the same terms and conditions and with the same CUSIP number as those of the Notes may be issued by the Company without the consent of the Holders of the Notes. Such further notes shall be consolidated and form a single series with the Notes.

(Insert provisions regarding payment in other currency if series is not denominated in U.S. Dollars.)

          The Notes may not be redeemed at the option of the Company prior to                         , except as stated below. On and after that date and prior to Stated Maturity the Company may, at its option, redeem the Notes, either as a whole or from time to time in part, at the following Redemption Prices (expressed in percentages of the principal amount thereof) together with interest accrued and unpaid thereon to the Redemption Date:

          IF REDEEMED DURING THE 12-MONTH PERIOD BEGINNING

 

 

 

 

 

 

 

Year

 

Redemption
Price

 

Year

 

Redemption
Price


 


 


 


          Notice of redemption shall be mailed to the registered Holders of the Notes designated for redemption at their addresses as the same shall appear on the Securities Register not less than 30 nor more than 60 days prior to the Redemption Date, subject to all the conditions and provisions of the Indenture.

          (Insert alternate or additional optional redemption provisions)

          (The Notes are also subject to redemption, through the operation of the sinking fund as herein provided on               and on                         each               thereafter to and including                         on notice as set forth above and at 100% of the principal amount thereof (the sinking fund redemption price), together with accrued interest co the Redemption Date.

          As and for a sinking fund for the retirement of the Notes and so long as any of the Notes remain outstanding and unpaid, the Company will pay to the Trustee for the Notes in cash, or if the Company is acting as its own Paying Agent, segregate and hold in trust, as provided in the Indenture (subject to the right to deliver certain Notes in credit therefor as in the Indenture provided ), on or before             and on or before                         in each year thereafter to and including                         an amount sufficient to redeem ($) (if not in U.S. dollars specify                              currency)                                   principal amount of the Notes (or such lesser amount equal to the principal amount then Outstanding) at the sinking fund redemption price.

          At its option the Company may pay into the sinking fund for the retirement of Notes, in cash except as provided in the Indenture, on or before                     and on or before                    in each year thereafter to and including                                   , an amount sufficient to redeem an additional principal amount of Notes up to but

3


not to exceed ($) (if not in U.S. dollars specify currency)                                        at the sinking fund redemption price. To the extent that the right to such optional sinking fund payment is not exercised in any year, it shall not be cumulative or carried forward to any subsequent year.)

          In the event of the redemption of this Note in part only, a new Note or Notes in the amount of the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.

          (The Indenture contains provisions for defeasance and discharge (at the Company’s option) of (either) the entire principal of all the Securities of any series or of certain covenants in the indenture upon compliance by the Company with certain conditions set forth therein.)

          If an Event of Default with respect to the Notes, as defined in the Indenture, shall occur and be continuing, the principal of all the Notes may be declared due and payable in the manner and with the effect provided in the Indenture.

          The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities under the Indenture at any time by the Company with the consent of the Holders of not less than a majority in aggregate principal amount of the Securities at the time Outstanding of each series affected thereby. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities of any series at the time Outstanding, on behalf of the Holders of all the Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences with respect to such series. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Note.

          No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of ((and premium, if any)) and interest on this Note at the times, place and rate, and in the coin or currency, herein prescribed.

          As provided in the Indenture and subject to certain limitations therein set forth, this Note is transferable on the Securities Register of the Company, upon surrender of this Note for registration of transfer at the office or agency of the Company to be maintained for that purpose in the City of                      ,          , or, at the option of the Holder, at the office or agency of the Company to be maintained for that purpose in                         , or at any other office or agency of the Company maintained for that purpose, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Securities Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

          Transfer of this Note will automatically transfer the warrant to purchase debt securities attached hereto (until the Detachable Date as set forth in such warrant).

          The Notes are issuable only in registered form without coupons in denominations of ($) (if not in U.S. dollars specify currency) and any multiple of ($) (if not in U.S. dollars specify currency)               . As provided in the Indenture and subject to certain limitations therein set forth. Notes are exchangeable for a like aggregate principal amount of Notes of a like tenor and of a different authorized denomination, as requested by the Holder surrendering the same.

          No service charge shall be made for any such transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with the registration of such transfer or exchange, other than certain exchanges not involving any transfer.

          Certain terms used in this Note that are defined in the Indenture have the meanings set forth therein.

          This Note shall for all purposes be governed by, and construed in accordance with, the laws of the State of New York.

4


          The Company, the Trustee for the Notes and any agent of the Company or such Trustee may treat the Person in whose name this Note is registered as the owner hereof for the purpose of receiving payment as herein provided and for all other purposes, whether or not this Note be overdue, and neither the Company, such Trustee nor any such agent shall be affected by notice to the contrary.

5


Exhibit 4(c)

Form of Original Issue Discount Global Note with Optional Redemption Provisions

THIS NOTE IS A GLOBAL NOTE (“GLOBAL NOTE”) WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE TO THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO A NOMINEE FOR DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO AMERICAN EXPRESS COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

(Form of Face of Note)

AMERICAN EXPRESS COMPANY

          FOR PURPOSES OF SECTION 1275 OF THE UNITED STATES INTERNAL REVENUE CODE OF 1986, AS AMENDED, THE ISSUE DATE IS 20     , THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS ($)     PER ($)     OF PRINCIPAL, THE YIELD TO MATURITY IS     %, AND (THERE WAS NO INITIAL SHORT ACCRUAL PERIOD) (THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ALLOCATED TO THE INITIAL SHORT ACCRUAL PERIOD FROM     TO     IS ($)        PER ($)     OF PRINCIPAL AND THE        METHOD WAS USED TO DETERMINE THIS AMOUNT.

 

 

 

% Senior Note due

 

 

 

No.

($) (if not in

CUSIP:

 

U.S. dollars

ISIN:

 

specify currency)

 

          AMERICAN EXPRESS COMPANY, a New York corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of           (Dollars) (if not in U.S. dollars, specify currency) on          , and to pay interest (computed on the basis of a 360-day year of twelve 30-day months) thereon from          or from the most recent Interest Payment Date to which interest has been paid or duly provided for, on                    and            in each year, commencing               , and at maturity, at the rate per annum specified in the title of this Note, until the principal hereof is paid or made available for payment (and, in the case of a default in the payment of principal or interest, at the rate        % per annum on such overdue principal and (to the extent that the payment of such interest shall be legally enforceable) on such overdue interest which shall accrue from the date of such default to the date payment of such principal or interest has been made or duly provided for). The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in said Indenture, be paid to the Person in whose name this Note (or one or more Predecessor Securities) is registered at the close of business on                or               , as the case may be, next preceding such Interest Payment Date. In any case where such Interest Payment Date shall not be a Business Day, then (notwithstanding any other provision of said Indenture or the Notes) payment of such interest need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on such date, and, if such payment is so made, no interest shall accrue for the period from and after such date. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the registered Holder on                or               , as the case may be, and may be paid to the Person in whose name this Note (or one or more Predecessor Securities) is registered at the close of business on a record date for the payment of such Defaulted Interest to be fixed by the


Trustee for the Notes, notice whereof shall be given to Holders of Notes not less than ten (10) days prior to such record date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture. Payment of the principal of (and premium, if any) and interest on this Note will be made at the office or agency of the Company maintained for that purpose in the City of               , or, at the option of the Holder, at the office or agency of the Company maintained for that purpose in               , in such coin or currency of the (United States of America) (if foreign currency, insert relevant country) as at the time of payment is legal tender for payment of public and private debts (if composite currency, insert “in units of (composite currency)”) (if for foreign currency or composite currency, insert the following language: “equal to the U.S. dollar equivalent thereof determined in such manner as described on the reverse hereof”) (if holder can elect foreign currency or composite currency, insert the following language: “(or, if the holder of the Note shall elect to be paid in the (relevant currency), as provided below, in (relevant currency)”); provided, however, that at the option of the Company payment of interest may be made (subject to collection) by check mailed to the address of the Person entitled thereto as such address shall appear on the Securities Register.

          (If holder can elect foreign currency or composite currency, insert the following language: “The holder may elect to receive payment of the principal of or interest on this Note in (relevant currency) by filing a written request for such payment with the corporate trust office of the Trustee, prior to the relevant Record Date in the case of any payment of interest and at least fifteen (15) days prior to the due date in the case of payment of principal. The holder may elect to receive (relevant currency) for all principal and interest payments and need not file a separate election form for each payment. Such election shall remain in effect until changed by written notice to the Trustee prior to the Record Date in the case of payment of interest and at least fifteen (15) days prior to the due date in the case of payment of principal”) (if for composite currency, insert the following language: “If the (composite currency) ceases to be used both within the               monetary system and for the settlement of transactions by public institutions of or within the               communities, then with respect to each date for the payment of interest or principal of this Note occurring after the last date on which the (composite currency) was so used, the U.S. dollar shall be the currency of payment. The U.S. dollar amount to be paid by the Company to the Trustee and by the Trustee to the holder of this Note with respect to such payment date shall be the U.S. dollar equivalent of the (composite currency) as determined               prior to the payment date.”)

          Additional provisions of this Note are contained on the reverse hereof and such provisions shall have the same effect as though fully set forth in this place.

          Unless the certificate of authentication hereon has been executed by or on behalf of the Trustee for the Notes by manual signature, this Note shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.

2


          IN WITNESS WHEREOF, AMERICAN EXPRESS COMPANY, has caused this instrument to be duly executed under its corporate seal.

 

 

 

 

Dated:

 

 

 

 

 

 

 

 

 

AMERICAN EXPRESS COMPANY

 

 

 

 

 

 

By  

 

 

 

 


 

 

 

President

 

 

 

 

Attest:

 

 

 

 

 

 

 


 

 

 

Secretary

 

 

 


 

 

 

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

 

 

 

This is one of the Securities described in the within-mentioned Indenture.

 

 

 

THE BANK OF NEW YORK MELLON

          As Trustee

 

 

 

By  

 

 

 


 

 

Authorized Signatory

 

3



 

 

(Form of Reverse of Global Note)

 

AMERICAN EXPRESS COMPANY

 

No.

% Senior Note due

          This Note is one of a duly authorized issue of debentures, notes or other evidences of indebtedness (hereinafter called the “Securities”) of the Company of the series hereinafter specified, which series is limited in aggregate principal amount to ($) (if not in U.S. dollars, specify currency)                    at Stated Maturity (except as provided in the Indenture hereinafter mentioned), all such Securities issued and to be issued under an indenture dated as of August 1, 2007, between the Company and The Bank of New York Mellon (formerly known as The Bank of New York), as Trustee, (as supplemented from time to time) (the “Indenture”), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the rights and limitation of rights thereunder of the Holders of the Securities and of the rights, obligations, duties and immunities of the Trustee for each series of Securities and of the Company, and the terms upon which the Securities are and are to be authenticated and delivered. As provided in the Indenture, the Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may be denominated in currencies other than U.S. dollars (including composite currencies), may mature at different times, may bear interest, if any, at different rates, may be subject to different redemption provisions, if any, may be subject to different sinking, purchase or analogous funds, if any, may be subject to different covenants and Events of Default and may otherwise vary as in the Indenture provided or permitted. This Note is one of a series of Securities designated               % Senior Notes due          (the “Notes”). Additional notes on the same terms and conditions and with the same CUSIP number as those of the Notes may be issued by the Company without the consent of the Holders of the Notes. Such further notes shall be consolidated and form a single series with the Notes.

          (Insert provisions regarding payment in other currency if series is not denominated in U.S. dollars.)

          (The Notes may not be redeemed prior to Stated Maturity.) (The Notes may be redeemed, at the option of the Company, on any date prior to their Stated Maturity, either as a whole or from time to time in part, at 100% of the principal amount thereof together with interest accrued and unpaid thereon to the Redemption Date.)

          Notice of redemption shall be mailed to the registered Holders of the Notes designated for redemption at their addresses as the same shall appear on the Securities Register not less than 30 nor more than 60 days prior to the Redemption Date, subject to all the conditions and provisions of the Indenture.

          In the event of redemption of this Note in part only, a new Note or Notes for the amount of the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.

          (Insert any alternative redemption provisions.)

          (The Indenture contains provisions for defeasance and discharge (at the Company’s option) of (either) the entire principal of all the Securities of any series or of certain covenants in the indenture upon compliance by the Company with certain conditions set forth therein.)

          If an Event of Default with respect to the Notes, as defined in the Indenture, shall occur and be continuing, an amount of principal equal to the sum of (i) the initial public offering price of the Notes, (ii) the aggregate of the portions of the original issue discount that shall be added cumulatively each               and               , computed as provided in the Indenture, and (iii) accrued amortization of original issue discount from the preceding               or               , as the case may be, to the date of declaration, may be declared, and upon such declaration shall become, due and payable in the manner, with the effect, and subject to the conditions provided in the Indenture. Upon payment of such amount, all of the Company’s obligations in respect of the principal of this Note shall terminate.

          The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities under the Indenture at any time by the Company with the consent of the Holders of not less than a majority in aggregate principal amount of the Securities at the time Outstanding of each series affected thereby. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities of any series at the time Outstanding, on behalf of the Holders of all the Securities of such series, to waive

4


compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences with respect to such series. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Note.

          No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any) and interest on this Note at the times, place, and rate, and in the coin or currency, herein prescribed.

          As provided in the Indenture and subject to certain limitations therein set forth, this Note is transferable on the Securities Register of the Company, upon surrender of this Note for registration of transfer at the office or agency of the Company to be maintained for that purpose in the City of          ,          , or, at the option of the Holder, at the office or agency of the Company maintained for that purpose in          , or at any other office or agency of the Company maintained for that purpose, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Securities Registrar duly executed, by the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

          Transfer of this Note will automatically transfer the warrant to purchase debt securities attached hereto (until the Detachable Date as set forth in such warrant).

          The Notes are issuable only in registered form without coupons in denominations of ($) (if not in U.S. dollars, specify currency)          and any multiple of ($) (if not in U.S. dollars, specify currency)          . As provided in the Indenture and subject to certain limitations therein set forth, Notes are exchangeable for a like aggregate principal amount of Notes of a like tenor and of a different authorized denomination, as requested by the Holder surrendering the same.

          No service charge shall be made for any such transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with the registration of such transfer or exchange, other than certain exchanges not involving any transfer.

          Certain terms used in this Note that are defined in the Indenture have the meanings set forth therein.

          This Note shall for all purposes be governed by, and construed in accordance with, the laws of the State of New York.

          The Company, the Trustee for the Notes and any agent of the Company or such Trustee may treat the Person in whose name this Note is registered as the owner hereof for the purpose of receiving payment and for all other purposes, whether or not this Note is overdue, and neither the Company, such Trustee nor any such agent shall be affected by notice to the contrary.

5


Exhibit 4(d)

Form of Global Zero Coupon Note with Optional Redemption Provision

THIS NOTE IS A GLOBAL NOTE (“GLOBAL NOTE”) WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE TO THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO A NOMINEE FOR DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO AMERICAN EXPRESS COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

(Form of Face of Note)

AMERICAN EXPRESS COMPANY

          FOR PURPOSES OF SECTION 1275 OF THE UNITED STATES INTERNAL REVENUE CODE OF 1986, AS AMENDED, THE ISSUE DATE IS 20   , THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS ($) PER ($) OF PRINCIPAL, THE YIELD TO MATURITY IS    %, AND (THERE WAS NO INITIAL SHORT ACCRUAL PERIOD) (THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ALLOCATED TO THE INITIAL SHORT ACCRUAL PERIOD FROM           TO           IS ($)           PER ($) OF PRINCIPAL AND THE           METHOD WAS USED TO DETERMINE THIS AMOUNT.

Zero Coupon Senior Note due

 

 

 

No.

($) (if not in

CUSIP:

 

U.S. dollars

ISIN:

 

specify currency)

 

          AMERICAN EXPRESS COMPANY, a New York corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of           (Dollars) (if not in U.S. dollars specify currency) on           . The principal of this Note shall not bear interest except in the case of a default in payment of principal upon acceleration, redemption or Stated Maturity; in such case the overdue principal of this Note shall bear interest at the rate of     % per annum (to the extent that the payment of such interest shall be legally enforceable), which shall accrue from the date of such default in payment of principal upon acceleration, redemption or Stated Maturity to the date payment of such principal has been made or duly provided for. Interest on any overdue principal shall be payable upon demand and shall be computed on the basis of a 360-day year of twelve 30-day months. Payment of the principal (and premium, if any) of and any such interest on this Note will be made at the office or agency of the Company maintained for that purpose in the City of          , or, at the option of the Holder, at the office or agency of the Company maintained for that purpose in          . All such payments shall be made in such coin or currency of the (United States of America) (if foreign currency, insert relevant country) as at the time of payment is legal tender for payment of public and private debts (if composite currency, insert “in units of (composite currency)”) (if for foreign currency or composite currency, insert the following language: “equal to the U.S. dollar equivalent thereof determined in such manner as described on the reverse hereof”) (if holder can elect foreign currency or composite currency, insert the following language: “(or, if the holder of the Note shall elect to be paid in the (relevant currency), as provided below, in (relevant currency)”).


          (If holder can elect foreign currency or composite currency, insert the following language: “The holder may elect to receive payment of the principal of this Note in (relevant currency) by filing a written request for such payment with the corporate trust office of the Trustee, at least fifteen (15) days prior to the due date of payment of principal. The holder may elect to receive (relevant currency) for all principal and interest payments and need not file a separate election form for each payment. Such election shall remain in effect until changed by written notice to the Trustee fifteen (15) days prior to the due date of payment of principal”) (if for composite currency, insert the following language: “If the (composite currency) ceases to be used both within the          monetary system and for the settlement of transactions by public institutions of or within the communities, then with respect to each date for the payment of interest or principal of this Note occurring after the last date on which the (composite currency) was so used, the U.S. dollar shall be the currency of payment. The U.S. dollar amount to be paid by the Company to the Trustee and by the Trustee to the holder of this Note with respect to such payment date shall be the U.S. dollar equivalent of the (composite currency) as determined by          prior to the payment date.”)

          Additional provisions of this Note are contained on reverse hereof, and such provisions shall have the same effect as if set forth in this place.

          Unless the certificate of authentication hereon has been executed by or on behalf of the Trustee for the Notes by manual signature, this Note shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.

          IN WITNESS WHEREOF, AMERICAN EXPRESS COMPANY has caused this instrument to be duly executed under its corporate seal.

Dated:

 

 

 

 

 

 

AMERICAN EXPRESS COMPANY

 

 

 

By 

 

 

 

 


 

 

 

President

Attest:

 

 

 

 

 

 

 


 

 

 

Secretary

 

 

 

 

 

 

 

TRUSTEE’S CERTIFICATE
OF AUTHENTICATION

 

 

 

 

 

 

 

This is one of the Securities described
in the within-mentioned Indenture.

 

 

 

 

 

 

 

THE BANK OF NEW YORK MELLON
As Trustee

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

 

 

By 

 

 

 


 

 

Authorized Signatory

 

2


(Form of Reverse of Global Note)

AMERICAN EXPRESS COMPANY

Zero Coupon Senior Note due

No.

          This Note is one of a duly authorized issue of debentures, notes or other evidences of indebtedness (hereinafter called the “Securities”) of the Company of the series hereinafter specified, which series is limited in aggregate principal amount to ($ (if not in U.S. dollars specify currency)           at Stated Maturity (except as provided in the Indenture hereinafter mentioned), all such Securities issued and to be issued under an indenture dated as of August 1, 2007) between the Company and The Bank of New York Mellon (formerly known as The Bank of New York), as Trustee, (as supplemented from time to time) (the “Indenture”), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the rights and limitation of rights thereunder of the Holders of the Securities and of the rights, obligations, duties and immunities of the Trustee for the Securities of each series and the Company, and the terms upon which the Securities are and are to be authenticated and delivered. The Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may be denominated in currencies other than U.S. dollars (including composite currencies), may mature at different times, may bear interest, if any, at different rates, may be subject to different redemption provisions, if any, may be subject to different sinking, purchase or analogous funds, if any, may be subject to different covenants and Events of Default and may otherwise vary as in the Indenture provided. This Note is one of a series of Securities designated as the Zero Coupon Senior Notes due           (the “Notes”). Additional notes on the same terms and conditions and with the same CUSIP number as those of the Notes may be issued by the Company without the consent of the Holders of the Notes. Such further notes shall be consolidated and form a single series with the Notes.

          (Insert provisions regarding payment in other foreign currency if series is not denominated in U.S. dollars.)

          (The Notes may not be redeemed prior to Stated Maturity.) (The Notes may be redeemed, at the option of the Company, on any date prior to their stated maturity, either as a whole or from time to time in part, at 100% of the principal amount thereof.)

          Notice of redemption shall be mailed to the registered Holders of the Notes designated for redemption at their addresses as the same shall appear on the Securities Register not less than thirty (30) nor more than sixty (60) days prior to the Redemption Date, subject to all the conditions and provisions of the Indenture.

          In the event of redemption of this Note in part only, a new Note or Notes for the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.

          (Insert any alternate redemption provisions)

          (The Indenture contains provisions for defeasance and discharge (at the Company’s option) of (either) the entire principal of all the Securities or any series or of certain covenants in the indenture upon compliance by the Company with certain conditions set forth therein.)

          If an Event of Default with respect to the Notes, as defined in the Indenture, shall occur and be continuing, an amount of principal equal to the sum of (i) the initial public offering price of the Notes, (ii) the aggregate of the portions of the original issue discount that shall be added cumulatively each           and           computed as provided in the Indenture, and (iii) accrued amortization of original issue discount from the preceding or           , as the case may be, to the date of declaration, may be declared, and upon such declaration shall become, due and payable in the manner, with the effect, and subject to the conditions provided in the Indenture. Upon payment of such amount, all of the Company’s obligations in respect of the principal of this Note shall terminate.

          The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities under the Indenture at any time by the Company with the consent of the Holders of not less than a majority in aggregate principal amount of the Securities at the time Outstanding of each series of Securities affected thereby. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities of any series at the time Outstanding, on behalf of the Holders of all the Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the

3


Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Note.

          No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and the interest on overdue principal of this Note at the times, place, and rate, and in the coin or currency, herein prescribed.

          As provided in the Indenture and subject to certain limitations therein set forth, this Note is transferable on the Securities Register of the Company, upon surrender of this Note for registration of transfer at the office or agency of the Company to be maintained for that purpose in the City of          ,          , or, at the option of the Holder, at the office or agency of the Company maintained for that purpose in           , or at any other office or agency of the Company maintained for that purpose, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Securities Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

          Transfer of this Note will automatically transfer the warrant to purchase debt securities attached hereto (until the Detachable Date as set forth in such warrant).

          The Notes are issuable only in registered form without coupons in denominations of ($) (if not in U.S. dollars specify currency)           and any multiple of ($) (if not in U.S. dollars specify currency)          . As provided in the Indenture and subject to certain limitations therein set forth, the Notes are exchangeable for a like aggregate principal amount of Notes of a like tenor and of a different authorized denomination, as requested by the Holder surrendering the same.

          No service charge shall be made for any such transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with the registration of such exchange or transfer other than certain exchanges not involving any transfer.

          Certain terms used in this Note that are defined in the Indenture have the meanings set forth therein.

          This Note shall for all purposes be governed by, and construed in accordance with, the laws of the State of New York.

          The Company, the Trustee for the Notes and any agent of the Company or such Trustee may treat the Person in whose name this Note is registered as the owner hereof for the purpose of receiving payment and for all other purposes, whether or not this Note be overdue, and neither the Company, such Trustee nor any such agent shall be affected by notice to the contrary.

4


Exhibit 4(e)

Form of Global Variable Rate Note with Optional Redemption and Repayment Provisions

THIS NOTE IS A GLOBAL NOTE (“GLOBAL NOTE”) WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE TO THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO A NOMINEE FOR DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO AMERICAN EXPRESS COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

(Form of Face of Note)

AMERICAN EXPRESS COMPANY

 

 

 

Variable Rate Senior Note due

 

 

 

No.

($) (if not in

CUSIP:

 

U.S. dollars specify

ISIN:

 

currency)

 

          AMERICAN EXPRESS COMPANY, a New York corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO. or registered assigns, the principal sum of          (Dollars) (if not in U.S. dollars specify currency) on          , and to pay interest thereon from          , or from the most recent Interest Payment Date to which interest has been paid or duly provided for, on          and          in each year, commencing          , and at maturity, at the rate per annum specified herein, until the principal hereof is paid or made available for payment (and, in the case of a default in the payment of principal or interest, at the rate        % per annum on such overdue principal and (to the extent that the payment of such interest shall be legally enforceable) on such overdue interest which shall accrue from the date of such default to the date payment of such principal or interest has been made or duly provided for). The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in said Indenture, be paid to the Person in whose name this Note (or one or more Predecessor Securities) is registered at the close of business on          or          , as the case may be, next preceding such Interest Payment Date. In any case where such Interest Payment Date shall not be a Business Day, then (notwithstanding any other provision of said Indenture or the Notes) payment of such interest need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on such date, and, if such payment is so made, no interest shall accrue for the period from and after such date. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the registered Holder on          or          , as the case may be, and may be paid to the Person in whose name this Note (or one or more Predecessor Securities) is registered at the close of business on a Record Date for the payment of such Defaulted Interest to be fixed by the Trustee for the Notes, notice whereof shall be given to Holders of Notes not less than ten (10) days prior to such record date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the said Indenture. Payment of the principal of (and premium, if any) and interest on this Note will be made at the office or agency of the Company maintained for that purpose in the City of          ,          or, at the option of the Holder, at the office or agency of the Company maintained for that purpose in          , in such coin or currency of the (United States of America) (if foreign currency, insert relevant country) as at the time of payment is legal tender for payment of public and private debts (if composite currency, insert “in units


of (composite currency)”) (if for foreign currency or composite currency, insert the following language: “equal to the U.S. dollar equivalent thereof determined in such manner as described on the reverse hereof’) (if holder can elect foreign currency or composite currency, insert the following language: “(or, if the holder of the Note shall elect to be paid in the (relevant currency), as provided below, in (relevant currency)”); provided, however, that at the option of the Company payment of interest may be made (subject to collection) by check mailed to the address of the Person entitled thereto as such address shall appear on the Securities Register.

          (If holder can elect foreign currency or composite currency, insert the following language: “The holder may elect to receive payment of the principal of or interest on this Note in (relevant country’s currency) by filing a written request for such payment with the corporate trust office of the Trustee, prior to the relevant Record Date in the case of any payment of interest and at least fifteen (15) days prior to the due date in the case of payment of principal. The holder may elect to receive (relevant currency) for all principal and interest payments and need not file a separate election form for each payment. Such election shall remain in effect until changed by written notice to the Trustee prior to the Record Date in the case of payment of interest and at least fifteen (15) days prior to the due date in the case of payment of principal”) (if for composite currency, insert the following language: “If the (composite currency) ceases to be used both within the          monetary system and for the settlement of transactions by public institutions of or within the communities, then with respect to each date for the payment of interest or principal of this Note occurring after the last date on which the (composite currency) was so used, the U.S. dollar shall be the currency of payment. The U.S. dollar amount to be paid by the Company to the Trustee and by the Trustee to the holder of this Note with respect to such payment date shall be the U.S. dollar equivalent of the (composite currency) as determined by          prior to the payment date.”)

          (Interest on this Note is payable, to the extent permitted by law, at the rate of          basis points above the          day Treasury Bill Rate, such interest rate to be adjusted on the calendar day following each day Treasury Bill auction, provided that (i) the interest rate in effect for the period from          through the date of the first          -day Treasury Bill auction after such date shall be based upon the results of the most recent          -day Treasury Bill auction prior to such date; and (ii) the interest rate in effect for the          days immediately prior to the date on which this Note is scheduled to mature shall be based upon the results of the most recent           -day Treasury Bill auction held prior to the          day preceding the date on which this Note is scheduled to mature. The “          -day Treasury Bill Rate” shall mean the weighted average per annum discount rate for direct obligations of the United States with a maturity of          weeks (“          -day Treasury Bills”) expressed as a bond equivalent on the basis of a year of 365 or 366 days and applied on a daily basis at the applicable          -day Treasury Bill auction as published by Reuters or any successor service or (if not so published) as published by the Board of Governors of the Federal Reserve System or (if not so published) as reported by the Department of the Treasury or any Federal Reserve Bank or United States Government department or agency.

          In the event that the          -day Treasury Bill Rate ceases to be published or reported as provided above, then the rate of interest in effect at the time of the last such publication or report will remain in effect until such time, if any, as such Treasury Bill Rate shall again be so published or reported.)

          (Provisions, alternative to those in the two foregoing paragraphs, for the determination of the interest rate.)

          The interest rate applicable to each          will be determined as promptly as practicable by the Company as described herein and the Company will furnish the Trustee with an Officers’ Certificate setting forth the interest rate applicable to each          promptly after such rate has been determined. The resulting rate will be rounded to the nearest five decimal places.

          Additional provisions of this Note are contained on the reverse hereof and such provisions shall for all purposes have the same effect as if set forth in this place.

          Unless the certificate of authentication hereon has been executed by or on behalf of the Trustee for the Notes by manual signature, this Note shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.

2


          IN WITNESS WHEREOF, AMERICAN EXPRESS COMPANY has caused this instrument to be duly executed under its corporate seal.

 

 

 

 

Dated:

 

 

 

 

 

 

 

 

 

AMERICAN EXPRESS COMPANY

 

 

 

 

 

 

By

 

 

 

 


 

 

 

President

Attest:

 

 

 


 

 

 

Secretary

 

 

 

TRUSTEE’S CERTIFICATE
OF AUTHENTICATION

This is one of the Securities described
in the within-mentioned Indenture.

THE BANK OF NEW YORK MELLON
          As Trustee

 

 

 

 

 

By 

 

 

 

 


 

 

 

Authorized Signatory

 

3


(Form of Reverse of Global Note)

AMERICAN EXPRESS COMPANY

 

 

 

No.

Variable Rate Senior Note due

 

          This Note is one of a duly authorized issue of debentures, notes or other evidences of indebtedness (hereinafter called the “Securities”) of the Company of the series hereinafter specified, which series is limited in aggregate principal amount to ($)         (if not in U.S. dollars, specify currency) (except as provided in the Indenture hereinafter mentioned), all such Securities issued and to be issued under an indenture dated as of August 1, 2007, between the Company and The Bank of New York Mellon (formerly known as The Bank of New York), as Trustee, (as supplemented from time to time) (the “Indenture”), to which Indenture and all (other) indentures supplemental thereto reference is hereby made for a statement of the rights and limitation of rights thereunder of the Holders of the Securities and of the rights, obligations, duties and immunities of the Trustee for each series of Securities and of the Company, and the terms upon which the Securities are and are to be authenticated and delivered. As provided in the Indenture, the Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may be denominated in currencies other than U.S. dollars (including composite currencies), may mature at different times, may bear interest, if any, at different rates, may be subject to different redemption provisions, if any, may be subject to different sinking, purchase or analogous funds, if any, may be subject to different covenants and Events of Default and may otherwise vary as in the Indenture provided or permitted. This Note is one of a series of the Securities designated therein as Variable Rate Senior Notes due          (the “Notes”). Additional notes on the same terms and conditions and with the same CUSIP number as those of the Notes may be issued by the Company without the consent of the Holders of the Notes. Such further notes shall be consolidated and form a single series with the Notes.

(Insert provisions regarding payment in other currency if series is not denominated in U.S. dollars.)

(REDEMPTION ALTERNATIVE 1)

          (The Notes may not be redeemed at the option of the Company before          . On and after that date and prior to Stated Maturity the Company may, at its option, redeem the Notes, either as a whole or from time to time in part, at the redemption price of 100% of the principal amount of the Notes being redeemed, together with accrued interest to the date fixed for redemption.)

(REDEMPTION ALTERNATIVE 2: REDEMPTION AND REPAYMENT OPTION)

          (If on any date on which a          -day Treasury Bill Rate is to be determined, such rate is for any reason not determinable as provided on the face hereof, (a) the rate of interest in effect at the time a          -day Treasury Bill Rate becomes indeterminable shall remain in effect until a new          -day Treasury Bill Rate may be determined as provided on the face hereof; (b) the Company, at its option, may redeem the Notes in whole or from time to time in part, at a redemption price equal to (insert appropriate redemption prices and table, if any), together in the case of any such redemption with accrued interest to the date fixed for redemption, such right of redemption to be exercisable until          ; (c) the Notes shall be subject to repayment in whole or in part on any          or          , in increments of ($) (if not in U.S. dollars, specify currency)          or          multiples of ($) (if not in U.S. dollars, specify currency)          in excess of ($) (if not in U.S. dollars, specify currency)          , provided that the portion of the principal amount of any Note not being repaid shall be at least ($) (if not in U.S. dollars, specify currency)          , at the option of the Holders of Notes, at a price equal to (insert appropriate repayment prices and table, if any) (the “Repayment Price”), together with interest payable to the date of repayment, such option to be exercisable until               ; and (d) the Company will promptly notify the Holders of Notes to the effect set forth in (b) and (c) above and deliver an Officers’ Certificate to the Trustee for the Notes certifying as to its inability to determine the          -day Treasury Bill Rate.)

          (This Note is (also) subject to repayment in whole or in part on any          or          , commencing on          , in increments of ($) (if not in U.S. dollars, specify currency)          or multiples of ($) (if not in U.S. dollars, specify currency) in excess of ($) (if not in U.S. dollars, specify currency)          , provided that the portion of the principal amount of any Note not being repaid shall be at least ($) (if not in U.S. dollars, specify currency)          , at the option of the Holder hereof at a price equal to (insert appropriate repayment prices and table, if any) (the “Repayment Price”), together with interest payable to the date of repayment.)

4


          (Notwithstanding any other provision of the Indenture, the Holder of any Note so completed and received shall have the right, which is absolute and unconditional, to receive payment of the Repayment Price and interest on such Note on the          or          , as the case may be, following the receipt of such form of notice by the Company and to institute suit for the enforcement of any such payment, and such right shall not be impaired without the consent of such Holder. In any case where such          or          shall not be a Business Day, then (notwithstanding any other provision of the Indenture or the Notes) payment of the Repayment Price and interest need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on such date, and, if such payment is so made, no interest shall accrue for the period from and after such date.)

          (For this Note to be repaid at the option of the Holder, the Company must receive at its office or agency in the City of          , or, at the option of the Holder, at the office or agency of the Company in          ,          or at such additional place or places as the Company shall from time to time notify the Holder of this Note, on or before the          or          , or if such          or          is not a Business Day, the next succeeding Business Day, but not earlier than the          or          prior to the          or          on which the repayment price will be paid (i) this Note, with the form entitled “Option to Elect Repayment” below duly completed, or (ii) a facsimile transmission or letter from a member of a national securities exchange or the Financial Industry Regulatory Authority or a commercial bank or trust company in the United States of America setting forth the name of the Holder of the Note, the principal amount of the Note, the amount of such Note to be repaid, a statement that the option to elect repayment is being made thereby and a guarantee that the Note to be repaid with the form entitled “Option to Elect Repayment” on the reverse thereof duly completed will be received by the Company no later than five (5) Business Days after the date of such facsimile transmission or letter, and such Note and form duly completed are received by the Company by such fifth (5 th ) Business Day. Either form of notice duly received on or before the          or          preceding any such          or          shall be irrevocable. All questions as to the validity, eligibility (including time of receipt) and acceptance of any Notes for repayment will be determined by the Company, whose determination shall be final and binding.)

          Notice of redemption shall be mailed to the registered Holders of the Notes designated for redemption at their addresses as the same shall appear on the Securities Register, not less than 30 days nor more than 60 days prior to the Redemption Date, subject to all the conditions and provisions of the Indenture.

          In the event of redemption of this Note in part only, a new Note or Notes for the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.

          (Insert any alternate redemption provisions)

          (The Indenture contains provisions for defeasance and discharge (at the Company’s option) of (either) the entire principal of all the Securities of any series or of certain covenants in the indenture upon compliance by the Company with certain conditions set forth therein.)

          If an Event of Default with respect to the Notes, as defined in the Indenture, shall occur and be continuing, the principal of all the Notes may be declared due and payable in the manner and with the effect provided in the Indenture.

          The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities under the Indenture at any time by the Company with the consent of the Holders of not less than a majority in aggregate principal amount of the Securities at the time Outstanding of each series affected thereby. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities of any series at the time Outstanding on behalf of the Holders of all the Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences with respect to such series. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and all future Holders of this Note and of any Note issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Note.

          No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any) and interest on this Note at the times, place and rate, and in the coin or currency, herein prescribed.

5


          As provided in the Indenture and subject to certain limitations therein set forth, this Note is transferable on the Securities Register of the Company, upon surrender of this Note for registration of transfer at the office or agency of the Company to be maintained for that purpose in the City of          ,          , or, at the option of the Holder, at the office or agency of the Company maintained for that purpose in          , or at any other office or agency of the Company maintained for that purpose, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Securities Registrar duly executed by the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

          Transfer of this Note will automatically transfer the warrant to purchase debt securities attached hereto (until the Detachable Date as set forth in such warrant).

          The Notes are issuable only in registered form without coupons in denominations of ($) (if not in U.S. dollars, specify currency)          and any multiple of ($) (if not in U.S. dollars, specify currency)          . As provided in the Indenture and subject to certain limitations therein set forth, Notes are exchangeable for a like aggregate principal amount of Notes of a like tenor and of a different authorized denomination, as requested by the Holder surrendering the same.

          No service charge shall be made for any such transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with the registration of such transfer or exchange, other than certain exchanges not involving any transfer.

          Certain terms used in this Note that are defined in the Indenture have the meanings set forth therein.

          This note shall for all purposes be governed by, and construed in accordance with, the laws of the State of New York.

          The Company, the Trustee for the Notes and any agent of the Company or such Trustee may treat the Person in whose name this Note is registered as the owner hereof for the purpose of receiving payment as herein provided and for all other purposes, whether or not this Note be overdue, and neither the Company, such Trustee nor any such agent shall be affected by notice to the contrary.

6


(FORM OF OPTION TO ELECT REPAYMENT)

Option to Elect Repayment

          The undersigned hereby irrevocably requests and instructs the Company to repay the within Note (or portion thereof specified below) pursuant to its terms at a price equal to the principal amount thereof, together with interest to the repayment date, to the undersigned, at

 




(Please Print or Typewrite Name and Address of the Undersigned)

          For this Note to be repaid the Company must receive at its office or agency in the City of          ,          , or, at the option of the Holder, at the Office or Agency of the Company in the Borough of Manhattan, The City of New York, or at such additional place or places of which the Company shall from time to time notify the Holder of the within Note, on or before the            or            , or, if such           or          is not a Business Day, the next succeeding Business Day, but not earlier than the          or          prior to (insert provisions with respect to repayment date or dates) (i) this Note with this “Option to Elect Repayment” form duly completed or (ii) a facsimile transmission or letter from a member of a national securities exchange or the Financial Industry Regulatory Authority or a commercial bank or a trust company in the United States of America setting forth the name of the Holder of the Note, the principal amount of the Note, the amount of the Note to be repaid, a statement that the option to elect repayment is being made thereby and a guarantee that the Note to be repaid with the form entitled “Option to Elect Repayment” on the reverse of the Note duly completed will be received by the Company not later than five (5) Business Days after the date of such facsimile transmission or letter, and such Note and form duly completed are received by the Company by such fifth (5 th ) Business Day.

          If less than the entire principal amount of the within Note is to be repaid, specify the portion thereof (which shall be ($) (if not in U.S. dollars, specify currency)          or an integral multiple of ($) (if not in U.S. dollars, specify currency)            in excess of ($) (if not in U.S. dollars, specify currency)            which the Holder elects to have repaid: ($) (if not in U.S. dollars, specify foreign currency)           and specify the denomination or denominations (which shall be ($) (if not in U.S. dollars, specify currency)          or multiple of ($) (if not in U.S. dollars, specify foreign currency)          in excess ($) (if not in U.S. dollars, specify currency)          of the Note or Notes to be issued to the Holder for the amount of the portion of the within Note not being repaid (in the absence of any such specification, one such Note will be issued for the portion not being repaid): ($) (if not in U.S. dollars, specify currency)          .

 

 

Dated:

 

 


 

Note: The signature of this Option to Elect Repayment must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any other change whatsoever.

7


Exhibit 4(f)

Form of Extendible Global Note with Optional Redemption and Repayment Provisions

THIS NOTE IS A GLOBAL NOTE (“GLOBAL NOTE”) WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE TO THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO A NOMINEE FOR DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO AMERICAN EXPRESS COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

(Form of Face of Note)

AMERICAN EXPRESS COMPANY

-Year Extendible Senior Note

 

 

 

No.

($) (if not in U.S.

CUSIP:

 

dollars, specify

ISIN:

 

currency)

 

          AMERICAN EXPRESS COMPANY, a New York corporation (hereinafter called the “Company,” which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO. or registered assigns, the principal sum of           (Dollars) (if not in U.S. dollars. specify currency) on          , and to pay interest (computed on the basis of a 360-day year of twelve 30-day months) thereon from          , or from the most recent Interest Payment Date to which interest has been paid or duly provided for, on          and          in each year, commencing          , and at maturity, at the rate per annum in effect from time to time as described below, until the principal hereof is paid or made available for payment (and, in the case of a default in the payment of principal or interest, at the rate          % per annum on such overdue principal and (to the extent that the payment of such interest shall be legally enforceable) on such overdue interest which shall accrue from the date of such default to the date payment of such principal or interest has been made or duly provided for). The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in said Indenture, be paid to the Person in whose name this Note (or one or more Predecessor Securities) is registered at the close of business on          or          , as the case may be, next preceding such Interest Payment Date. In any case where such Interest Payment Date shall not be a Business Day, then (notwithstanding any other provision of said Indenture or the Notes) payment of such interest need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on such date, and, if such payment is so made, no interest shall accrue for the period from and after such date. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the registered Holder          on or          , as the case may be, and may be paid to the Person in whose name this Note (or one or more Predecessor Securities) is registered at the close of business on a Record Date for the payment of such Defaulted Interest to be fixed by the Trustee for the Notes, notice whereof shall be given to Holders of Notes not less than 10 days prior to such record date, or may be paid at any time in any manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture. Payment of the principal of (and premium, if any) and interest on this Note will be made at the office or agency of the Company maintained for that purpose in the City of          ,          , or, at the option of the Holder, at the office or agency of the Company maintained for that purpose in          , in such coin or currency of the (United States of America) (if foreign currency, insert relevant country) as at the time of payment is legal tender for payment of


public and private debts (if composite currency, insert “in units of (composite currency)”) (if for foreign currency or composite currency, insert the following language: “equal to the U.S. dollar equivalent thereof determined in such manner as described on the reverse hereof”) (if holder can elect foreign currency or composite currency, insert the following language: “(or, if the holder of the Note shall elect to be paid in the (relevant currency), as provided below, in (relevant currency)”); provided, however, that at the option of the Company payment of interest may be made (subject to collection) by check mailed to the address of the Person entitled thereto as such address shall appear on the Securities Register.

          (If holder can elect foreign currency or composite currency, insert the following language: “The holder may elect to receive payment of the principal of or interest on this Note in (relevant currency) by filing a written request for such payment with the corporate trust office of the Trustee, prior to the relevant Record Date in the case of any payment of interest and at least fifteen (15) days prior to the due date in the case of payment of principal. The holder may elect to receive (relevant currency) for all principal and interest payments and need not file a separate election form for each payment. Such election shall remain in effect until changed by written notice to the Trustee prior to the Record Date in the case of payment of interest and at least fifteen (15) days prior to the due date in the case of payment of principal”) (if for composite currency, insert the following language: “If the (composite currency) ceases to be used both within the                   monetary system and for the settlement of transactions by public institutions of or within the communities, then with respect to each date for the payment of interest or principal of this Note occurring after the last date on which the (composite currency) was so used, the U.S. dollar shall be the currency of payment. The U.S. dollar amount to be paid by the Company to the Trustee and by the Trustee to the holder of this Note with respect to such payment date shall be the U.S. dollar equivalent of the (composite currency) as determined by          prior to the payment date.”)

          (Insert provision stating rate or method of determining rate.)

          The Notes of this series are subject to repayment on (insert provisions with respect to repayment date or dates) at the option of the Holders thereof exercisable on or before the          , but not prior to the preceding such          , at a repayment price equal to the principal amount thereof to be repaid, together with interest payable thereon to the repayment date, as described on the reverse side hereof.

          Additional provisions of this Note are contained on the reverse hereof and such provisions shall have the same effect as if set forth in this place.

          Unless the certificate of authentication hereon has been executed by or on behalf of the Trustee for the Notes by manual signature, this Note shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.

2


          IN WITNESS WHEREOF, AMERICAN EXPRESS COMPANY has caused this instrument to be duly executed under its corporate seal.

 

 

 

 

Dated:

 

 

 

 

 

 

 

AMERICAN EXPRESS COMPANY

 

 

 

 

 

By

 

 

 

 


 

 

 

President

Attest:

 

 

 

 

 


 

 

Secretary

 

 

TRUSTEE’S CERTIFICATE
OF AUTHENTICATION

This is one of the Securities described
in the within-mentioned Indenture.

THE BANK OF NEW YORK MELLON
          As Trustee

 

 

By

 

 


 

Authorized Signatory

3


(Form of Reverse of Global Note)

AMERICAN EXPRESS COMPANY

 

 

 

No.

-Year Extendible Senior Note

 

          This Note is one of a duly authorized issue of debentures, notes or other evidences of indebtedness (hereinafter called the “Securities”) of the Company of the series hereinafter specified, which series is limited in aggregate principal amount to ($)         (if not in U.S. dollars specify currency) (except as provided in the Indenture hereinafter mentioned), all such Securities issued and to be issued under an indenture dated as of August 1, 2007, between the Company and The Bank of New York Mellon (formerly known as The Bank of New York), as Trustee, (as supplemented from time to time) ( the “Indenture”), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the rights and limitation of rights thereunder of the Holders of the Securities and of the rights, obligations, duties and immunities of the Trustee for each series of Securities and of the Company, and the terms upon which the Securities are and are to be authenticated and delivered. As provided in the Indenture, the Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may be denominated in currencies other than U.S. dollars (including composite currencies), may mature at different times, may bear interest, if any, at different rates, may be subject to different redemption provisions, if any, may be subject to different sinking, purchase or analogous funds, if any, may be subject to different covenants and Events of Default and may otherwise vary as in the Indenture provided or permitted. This Note is one of a series of the Securities designated therein as          -Year Extendible Senior Notes (the “Notes”). Additional notes on the same terms and conditions and with the same CUSIP number as those of the Notes may be issued by the Company without the consent of the Holders of the Notes. Such further notes shall be consolidated and form a single series with the Notes.

          (Insert provisions regarding payment in other currency if series is not denominated in U.S. dollars.)

          (Insert redemption provisions.)

          Notice of redemption shall be mailed to the registered Holders of the Notes designated for redemption at their addresses as the same shall appear on the Securities Register not less than 30 nor more than 60 days prior to the Redemption Date, subject to all the conditions and provisions of the Indenture.

          In the event of redemption of this Note in part only, a new Note or Notes for the amount of the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.

          The Notes are subject to repayment in whole, or in part, on (insert provisions with respect to repayment date or dates) in increments of ($) (if not in U.S. dollars, specify currency)          or multiples of ($) (if not in U.S. dollars, specify currency)          in excess of ($) (if not in U.S. dollars, specify currency)          , provided that the portion of the principal amount of any Note not being repaid shall be at least ($) (if not in U.S. dollars, specify currency)          , at the option of the Holders thereof at a repayment price equal to the principal amount thereof to be repaid, together with the interest payable thereon to the repayment date. For this Note to be repaid at the option of the Holder, the Company must receive at its office or agency in the City of          ,          , or, at the option of the Holder, at the office or agency of the Company in          , or at such additional place or places of which the Company shall from time to time notify the Holder of this Note, on or before the          , or if such          is not a Business Day, the next succeeding Business Day, but not earlier than the          prior to the          on which the repayment price will be paid (i) this Note, with the form entitled “Option to Elect Repayment” below duly completed, or (ii) a facsimile transmission or letter from a member of a national securities exchange or the Financial Industry Regulatory Authority or a commercial bank or trust Company in the United States of America setting forth the name of the Holder of the Note, the principal amount of the Note, the amount of such Note to be repaid, a statement that the option to elect repayment is being made thereby and a guarantee that the Note to be repaid with the form entitled “Option to Elect Repayment” on the reverse thereof duly completed will be received by the Company no later than five (5) Business Days after the date of such facsimile transmission or letter, and such Note and form duly completed are received by the Company by such fifth (5 th ) Business Day. Either form of notice duly received on or before the          preceding any such          shall be irrevocable. All questions as to the validity, eligibility (including time of receipt) and acceptance of any Notes for repayment will be determined by the Company, whose determination shall be final and binding.

4


          (The Indenture contains provisions for defeasance and discharge (at the Company’s option) of (either) the entire principal of all the Securities of any series or of certain covenants in the indenture upon compliance by the Company with certain conditions set forth therein.)

          If an Event of Default with respect to the Notes, as defined in the Indenture, shall occur and be continuing, the principal of all the Notes may be declared due and payable in the manner and with the effect provided in the Indenture.

          The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities under the Indenture at any time by the Company with the consent of the Holders of no less than a majority in aggregate principal amount of the Securities at the time Outstanding of each series affected thereby. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities of any series at the time Outstanding, on behalf of the Holders of all the Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences with respect to such series. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Note.

          No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any) and interest on this Note at the times, place and rate, and in the coin or currency, herein prescribed.

          As provided in the Indenture and subject to certain limitations therein set forth, this Note is transferable on the Securities Register of the Company, upon surrender of this Note for registration of transfer at the office or agency of the Company to be maintained for that purpose in the City of          ,          , or, at the option of the Holder, at the office or agency of the Company maintained for that purpose in          , or at any other office or agency of the Company maintained for that purpose, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Securities Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

          Transfer of this Note will automatically transfer the warrant to purchase debt securities attached hereto (until the Detachable Date as set forth in such warrant).

          The Notes are issuable only in registered form without coupons in denominations of ($) (if not in U.S. dollars, specify currency)          and any multiple of ($) (if not in U.S. dollars, specify currency)          . As provided in the Indenture, and subject to certain limitations therein set forth, Notes are exchangeable for a like aggregate principal amount of Notes of a like tenor and of a different authorized denomination, as requested by the Holder surrendering the same.

          No service charge shall be made for any such transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with the registration of such transfer or exchange, other than certain exchanges not involving any transfer.

          Certain terms used in this Note that are defined in the Indenture have the meanings set forth therein.

          This Note shall for all purposes be governed by, and construed in accordance with, the laws of the State of New York.

          The Company, the Trustee for the Notes and any agent of the Company or such Trustee may treat the Person in whose name this Note is registered as the owner hereof for the purpose of receiving payment as herein provided and for all other purposes, whether or not this Note be overdue, and neither the Company, such Trustee nor any such agent shall be affected by notice to the contrary.

5


(FORM OF OPTION TO ELECT REPAYMENT)

Option to Elect Repayment

          The undersigned hereby irrevocably requests and instructs the Company to repay the within Note (or portion thereof specified below) pursuant to its terms at a price equal to the principal amount thereof, together with interest to the repayment date, to the undersigned, at

 


 



(Please Print or Typewrite Name
and Address of the Undersigned)

          For this Note to be repaid the Company must receive at its office or agency in the City of          ,          , or, at the option of the Holder, at the Office or Agency of the Company in          or at such additional place or places of which the Company shall from time to time notify the Holder of the within Note, on or before the          or, if such          is not a Business Day, the next succeeding Business Day, but not earlier than the          prior to (insert provisions with respect to repayment date or dates) (i) this Note with this “Option to Elect Repayment” form duly completed or (ii) a facsimile transmission or letter from a member of a national securities exchange or the Financial Industry Regulatory Authority or a commercial bank or a trust company in the United States of America setting forth the name of the Holder of the Note, the principal amount of the Note, the amount of the Note to be repaid, a statement that the option to elect repayment is being made thereby and a guarantee that the Note to be repaid with the form entitled “Option to Elect Repayment” on the reverse of the Note duly completed will be received by the Company not later than five (5) Business Days after the date of such facsimile transmission or letter, and such Note and form duly completed are received by the Company by such fifth (5 th ) Business Day.

          If less than the entire principal amount of the within Note is to be repaid, specify the portion thereof (which shall be ($) (if not in U.S. dollars, specify currency)             or an integral multiple of ($) (if not in U.S. dollars, specify currency)             in excess of ($) (if not in U.S. dollars, specify currency)             which the Holder elects to have repaid: ($) (if not in U.S. dollars, specify currency)          ; and specify the denomination or denominations (which shall be ($) (if not in U.S. dollars, specify currency)          or multiple of ($) (if not in U.S. dollars, specify currency)          in excess ($) (if not in U.S. dollars. specify currency)          of the Note or Notes to be issued to the Holder for the amount of the portion of the within Note not being repaid (in the absence of any such specification, one such Note will be issued for the portion not being repaid): ($) (if not in U.S. dollars, specify currency).

 

 

Dated:

 

 


 

Note: The signature of this Option to Elect Repayment must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any other change whatsoever.

6


Exhibit 4(g)

Form of Medium Term Senior Global Note, Series     (Fixed Rate)

THIS NOTE IS A GLOBAL NOTE (“GLOBAL NOTE”) WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE TO THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO A NOMINEE FOR DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO AMERICAN EXPRESS COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

 

 

 

 

 

 

 

 

 

 

NOTE NUMBER

AGENT’S NAME

AMERICAN EXPRESS

FXR-

 

COMPANY




PRINCIPAL

TRADE DATE

SETTLEMENT DATE

AGENT’S COMMISSION

  PRICE

AMOUNT
$

 


(ORIGINAL ISSUE DATE)

 

 

 

 

 

 

 






MATURITY DATE

CUST NO

SECURITY PACIFIC’S

INTEREST RATE

TAXPAYER ID

TRANSFERRED

 

 

TICKET NO

BASIS

OR SOC SEC NO

 

 

 

 

 

 

 







NAME AND ADDRESS OF REGISTERED OWNER

MEDIUM TERM SENIOR

 

NOTE, SERIES [     ]

 

(FIXED RATE)

 

CONFIRMATION

 

TRUSTEE AND

 

PAYING AGENT

 

 



CUSTOMER’S
COPY

RETAIN FOR TAX PURPOSES

THE TIME OF THE TRANSACTION
WILL BE FURNISHED UPON
REQUEST OF THE CUSTOMER

PLEASE SIGN AND RETURN
ENCLOSED RECEIPT

SEE REVERSE
SIDE

 

 

 

 

 

 

 

 

 

REGISTERED

PRINCIPAL

 

CURRENCY

 

AMOUNT

 

CUSIP:

 

 

 

ISIN:

No. FXR-

 

 

 

AMERICAN EXPRESS COMPANY

 

INTEREST RATE

MATURITY

ORIGINAL ISSUE DATE

[terms to be inserted if this note is of original discount or zero coupon form]

          AMERICAN EXPRESS COMPANY, a corporation duly organized and existing under the laws of New York (herein referred to as the “Company”), for value received, hereby promises to pay to CEDE & CO. or registered assigns, at the office or agency of the Company in                              , the principal amount set forth above, on the maturity date shown above, in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts, and to pay interest thereon (computed on the basis of a 360-day year of twelve 30-day months) at the rate per annum shown above until the principal hereof is paid or duly made available for payment, and at such rate per annum on any overdue principal and premium and (to the extent that the payment of such interest shall be legally enforceable) on any overdue installment of interest. The Company will pay interest semi-annually on              and             , commencing with the            or            following the Original Issue Date shown above and on the Maturity Date shown above; provided , however , that if the Original


Issue Date shown above is after             and on or before the immediately following             or after               and on or before the immediately following             , interest payments will commence on the next succeeding                 or                , as the case may be. Interest on this Note will accrue from the most recent Interest Payment Date to which interest has been paid or duly provided for or, if no interest has been paid, from the Original Issue Date shown above until the principal hereof has been paid or made available for payment. The interest so payable on any              or               will, subject to certain exceptions provided in the Indenture referred to on the reverse hereof, be paid to the person in whose name this Note is registered at the close of business on the first (1 st ) day of the calendar month preceding such                or            . Payments of principal and interest due at Stated Maturity will be made in immediately available funds, and interest payable at Stated Maturity will be payable to the Person to whom principal is payable at Stated Maturity. Interest may at the option of the Company be paid by check mailed to the person entitled thereto in such person’s address as it appears on the registry books of the Company, or by wire transfer to an account maintained by such Person with a bank located in the United States.

          REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH ON THE REVERSE HEREOF. SUCH FURTHER PROVISIONS SHALL HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH AT THIS PLACE.

          This Note shall not be entitled to any benefit under the indenture or be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been manually signed by or on behalf of the Trustee under the indenture referred to on the reverse hereof.

          IN WITNESS WHEREOF, AMERICAN EXPRESS COMPANY, has caused this instrument to be duly executed under its corporate seal.

 

 

 

 

Dated:

 

 

 

 

 

 

 

 

 

AMERICAN EXPRESS COMPANY

 

 

 

 

 

 

By

 

 

 

 


 

 

 

President

 

 

 

 

Attest:

 

 

 

 

 

 

 


 

 

 

Secretary

 

 

 

TRUSTEE’S CERTIFICATE
OF AUTHENTICATION

This is one of the Securities described
in the within-mentioned Indenture.

 

 

 

THE BANK OF NEW YORK MELLON

 

As Trustee

 

 

 

By

 

 

 


 

Authorized Signatory

 

2


AMERICAN EXPRESS COMPANY
FORM OF MEDIUM-TERM GLOBAL NOTE, SERIES
(Fixed Rate)

          This Note is one of a duly authorized issue of debentures, notes or other evidences of indebtedness (hereinafter called the “Securities”) of the Company of the series hereinafter specified, which series is limited in aggregate principal amount to ($) (if not in U.S. dollars specify currency)              (except as provided in the Indenture hereinafter mentioned), all such Securities issued and to be issued under an Indenture dated as of August 1, 2007, between the Company and The Bank of New York Mellon (formerly known as The Bank of New York), as Trustee (as supplemented from time to time ) (the “Indenture”) to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the rights and limitation of rights thereunder of the Holders of the Securities and of the rights, obligations, duties and immunities of the Trustee for each series of Securities and of the Company, and the terms upon which the Securities are and are to be authenticated and delivered. As provided in the Indenture, the Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may be denominated in currencies other than U.S. dollars (including composite currencies), may mature at different times may bear interest, if any, at different rates may be subject to different redemption provisions, if any, may be subject to different sinking purchase or analogous funds if any, may be subject to different covenants and Events of Default and may otherwise vary as in the Indenture provided or permitted. This Note is one of a series of Securities designated as the Medium-Term Senior Notes Series (Fixed Rate) (the “Notes”). Additional notes on the same terms and conditions and with the same CUSIP number as those of the Notes may be issued by the Company without the consent of the Holders of the Notes. Such further notes shall be consolidated and form a single series with the Notes.

          (Insert provisions regarding payment in other currency if series is not denominated in U.S. dollars.)

          (The Notes may not be redeemed prior to Stated Maturity.) (The Notes may be redeemed at the option of the Company, on any date prior to Stated Maturity, either as a whole or from time to time in part, at 100% of the principal amount thereof together with interest accrued and unpaid thereon to the Redemption Date.)

          Notice of redemption shall be mailed to the registered Holders of the Notes designated for redemption at their addresses as the same shall appear on the Securities Register not less than 30 nor more than 60 days prior to the Redemption Date, subject to all the conditions and provisions of the indenture.

          In the event of redemption of this Note in part only, a new Note or Notes for the amount of the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.

          (Insert any alternative redemption provisions.)

          (The Indenture contains provisions for defeasance and discharge (at the Company’s option) of (either) the entire principal of all the Securities of any series or of certain covenants in the indenture upon compliance by the Company with certain conditions set forth therein.)

          If an Event of Default with respect to the Notes as defined in the Indenture, shall occur and be continuing, the principal of all the Notes may be declared due and payable in the manner and with the effect provided in the Indenture.

          The Indenture permits with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities under the Indenture at any time by the Company with the consent of the Holders of not less than a majority in aggregate principal amount of the Securities at the time outstanding of each series affected thereby. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities of any series at the time Outstanding on behalf of the Holders of all the Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences with respect to such series. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Note.

          No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any) and interest on this Note at the times, place, and rate, and in the coin or currency herein prescribed.

          As provided in the Indenture and subject to certain limitations therein set forth, this Note is transferable on the Securities Register of the Company, upon surrender of this Note for registration of transfer at the office or

3


agency of the Company to be maintained for that purpose in the City of                    ,                    , or, at the option of the Holder, at the office or agency of the Company maintained for that purpose in                    , or at any other office or agency of the Company maintained for that purpose, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Securities Registrar duly executed, by the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

          The Notes are issuable only in registered form without coupons in denominations of ($)           (if not in U.S. dollars, specify currency)  and any multiple of ($)             (if not in U.S. dollars, specify currency). As provided in the Indenture and subject to certain limitations therein set forth, Notes are exchangeable for a like aggregate principal amount of Notes of a like tenor and of a different authorized denomination, as requested by the Holder surrendering the same.

          No service charge shall be made for any such transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with the registration of such transfer or exchange, other than certain exchanges not involving any transfer.

          Certain terms used in this Note that are defined in the Indenture have the meanings set forth therein.

          This Note shall for all purposes be governed by, and construed in accordance with, the laws of the State of New York.

          The Company, the Trustee for the Notes and any agent of the Company or such Trustee may treat the Person in whose name this Note is registered as the owner hereof for the purpose of receiving payment and for all other purposes, whether or not this Note is overdue and neither the Company, such Trustee nor any such agent shall be affected by notice to the contrary.

 


 

ABBREVIATIONS

The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:

 

 

 

 

 

 

 

 

 

TEN COM

 

-as tenants in common

 

UNIF GIFT MIN
ACT

Custodian



(Cust)

 

(Minor)

TEN ENT

 

-as tenants by the entireties

 

JT TEN

 

-as joint tenants with right of
survivorship and not as tenants in
common

Under Uniform Gifts to Minors Act

 

 

 


 

 

 

(State)

Additional abbreviations may also be used though not in the above list

4


FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto

 

 


 

 

Please Insert Social Security or Other
Identifying Number of Assignee

 

 


 

 


 

 


 


Please Print or Type Name and Address Including Zip Code of Assignee

 


the within Note and all rights thereunder, hereby irrevocably constituting and appointing


 

 

 

 

 

 

 

 

attorney


to transfer such Note on the books of American Express Company, with full power of substitution in the premises.

 

 


 

 

 

 

Dated:

 

 

 

 


 


 

 

 

 

 

Signature

 


 

NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the Note in every particular, without alteration of enlargement or any change whatsoever

5


Exhibit 4(h)

Form of Medium Term Senior Global Note, Series    (Floating Rate)

THIS NOTE IS A GLOBAL NOTE (“GLOBAL NOTE”) WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE TO THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO A NOMINEE FOR DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO AMERICAN EXPRESS CREDIT CORPORATION OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

 

 

 

 

 

 

 

 

 

 

 

NOTE NUMBER
FLR-

 

AGENT’S NAME

 

 

 

AMERICAN EXPRESS
COMPANY








PRINCIPAL
AMOUNT
$

 

TRADE DATE

 

SETTLEMENT DATE
(ORIGINAL ISSUE DATE)

 

AGENT’S COMMISSION

PRICE 100% (Unless
otherwise indicated)









MATURITY DATE

 

CUST NO

 

INTEREST RATE BASIS

 

TAXPAYER ID
OR SOC SEC NO

TRANSFERRED










NAME AND ADDRESS OF REGISTERED OWNER

MEDIUM TERM SENIOR
NOTE, SERIES [   ]
(FLOATING RATE)
CONFIRMATION
TRUSTEE AND
PAYING AGENT










CUSTOMER’S
COPY

 

RETAIN FOR TAX
PURPOSES

 

THE TIME OF THE TRANSACTION
WILL BE FURNISHED UPON
REQUEST OF THE CUSTOMER

PLEASE SIGN AND RETURN
ENCLOSED RECEIPT

SEE REVERSE
SIDE


 

 

REGISTERED

PRINCIPAL AMOUNT

 

$

No. FLR-

 

 

CUSIP:

 

ISIN:

AMERICAN EXPRESS COMPANY

 

 

INITIAL INTEREST RATE:

MATURITY:

 

 

INTEREST RATE BASIS:

SPREAD:

 

 

MAXIMUM INTEREST RATE:

SPREAD MULTIPLIER:

 

 

MINIMUM INTEREST RATE:

 




 

 

CALCULATION DATES:

 

 

 

CALCULATION AGENT:

 

 

 

CURRENCY

 

          AMERICAN EXPRESS COMPANY, a corporation duly organized and existing under the laws of the State of New York (herein referred to as the “Company,”) for value received, hereby promises to pay to CEDE & CO., or registered assigns, at the office or agency of the Company in                            , the principal amount set forth above on the Maturity Date set forth above, on such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts, and to pay interest thereon (computed on the basis of a 360-day year of twelve 30-day months) from the Original Issue Date set forth above, or from the most recent Interest Payment Date to which interest has been paid or duly provided for in arrears on the Interest Payment Dates set forth above, commencing on the first Interest Payment Date following the Original Issue Date at the rate per annum determined in accordance with the provisions on the reverse hereof, depending on the Interest Rate Basis specified above, until the principal hereof is paid or made available for payment, and at such rate per annum on any overdue principal and premium and (to the extent that the payment of such interest shall be legally enforceable) on any overdue installment of interest; provided , however , that if the Original Issue Date shown above is after a record date and on or before such Interest Payment Date, interest payments will commence on the next succeeding Interest Payment Date, as the case may be. The interest so payable on any Interest Payment Date will, subject to certain exceptions provided in the Indenture referred to on the reverse hereof, be paid to the person in whose name this Note is registered at the close of business on the fifteenth (15 th ) day preceding such Interest Payment Date. Payments of principal and interest due at Maturity will be made in immediately available funds, and interest payable at Maturity will be payable to the Person to whom principal is payable at Maturity. Interest may at the option of the Company be paid by check mailed to the person entitled thereto at such person’s address as it appears on the registry books of the Company, or by wire transfer to an account maintained by such Person with a bank located in the United States.

          REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH ON THE REVERSE HEREOF. SUCH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.

          This Note shall not be entitled to any benefit under the Indenture, or be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been manually signed by or on behalf of the Trustee under the Indenture referred to on the reverse hereof.

2


          IN WITNESS WHEREOF, AMERICAN EXPRESS COMPANY, has caused this instrument to be duly executed under its corporate seal.

 

 

 

 

Dated:

 

 

 

 

 

 

AMERICAN EXPRESS COMPANY

 

 

 

 

By 

 

 

 


 

 

President

Attest:

 

 

 

 

 


 

 

 

Secretary

 

 

 

TRUSTEE’S CERTIFICATE
OF AUTHENTICATION

This is one of the Securities described
in the within-mentioned Indenture.

THE BANK OF NEW YORK MELLON
          As Trustee

 

 

By 

 

 


Authorized Signatory

3


AMERICAN EXPRESS COMPANY
FORM OF MEDIUM-TERM GLOBAL NOTE, SERIES
(Floating Rate)

          This Note is one of a duly authorized issue of debentures, notes or other evidences of indebtedness (hereinafter called the “Securities”) of the Company of the series hereinafter specified which series is limited in aggregate principal amount to ($) (if not in U.S. dollars specify currency)                except as provided in the Indenture hereinafter mentioned), all such Securities issued and to be issued under an Indenture dated as of August 1, 2007, between the Company and The Bank of New York Mellon (formerly known as The Bank of New York), as Trustee (as supplemented from time to time) (the “Indenture”), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the rights and limitation of rights thereunder of the Holders of the Securities and of the rights, obligations, duties and immunities of the Trustee for each series of Securities and of the Company, and the terms upon which the Securities are and are to be authenticated and delivered. As provided in the Indenture, the Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may be denominated in currencies other than U.S. dollars (including composite currencies), may mature at different times, may bear interest, if any, at different rates, may be subject to different redemption provisions, if any, may be subject to different redemption provisions, if any, may be subject to different sinking purchase or analogous funds, if any, may be subject to different covenants and Events of Default and may otherwise vary as in the Indenture provided or permitted. This Note is one of a series of Securities designated as the Medium Term Senior Notes Series                 (Floating Rates) (the “Notes.”) Additional notes on the same terms and conditions and with the same CUSIP number as those of the Notes may be issued by the Company without the consent of the Holders of the Notes. Such further notes shall be consolidated and form a single series with the Notes.

          (Insert provisions for determining the Floating Rate.)

          (Insert provisions regarding payment in other currency if series is not denominated in U.S. dollars.)

          (The Notes may not be redeemed prior to Stated Maturity.) (The Notes may be redeemed, at the option of the Company, on any date prior to Stated Maturity either as a whole or from time to time in part, at 100% of the principal amount thereof together with interest accrued and unpaid thereon to the Redemption Date.)

          Notice of redemption shall be mailed to the registered Holders of the Notes designated for redemption at their addresses as the same shall appear on the Securities Register not less than 30 nor more than 60 days prior to the Redemption Date subject to all the conditions and provisions of the Indenture.

          In the event of redemption of this Note in part only a new Note or Notes for the amount of the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.

          (Insert any alternative redemption provisions.)

          The Indenture contains provisions for defeasance and discharge (at the Company’s option) of (either) the entire principal of all the Securities of any series or of certain covenants in the indenture upon compliance by the Company with certain conditions set forth therein.

          If an Event of Default with respect to the Notes as defined in the Indenture, shall occur and be continuing, the principal of all the Notes may be declared due and payable in the manner and with the effect provided in the Indenture.

          The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities under the Indenture at any time by the Company with the consent of the Holders of not less than a majority in aggregate principal amount of the Securities at the time outstanding of each series affected thereby. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities of any series at the time Outstanding, on behalf of the Holders of all the Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences with respect to such series. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Note.

          No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any,) and interest on this Note at the times, place, and rate, and in the coin or currency, herein prescribed.

4


          As provided in the Indenture and subject to certain limitations therein set forth, this Note is transferable on the Securities Register of the Company, upon surrender of this Note for registration of transfer at the office or agency of the Company to be maintained for that purpose in the City of                        or, at the option of the Holder, at the office or agency of the Company maintained for that purpose in                    , or at any other office or agency of the Company maintained for that purpose, duly endorsed by or accompanied by a written instrument of transfer in form satisfactory to the Company and the Securities Registrar duly executed, by the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

          The Notes are issuable only in registered form without coupons in denominations of ($) (if not in U.S. dollars, specify currency)            and any multiple of ($) (if not in U.S. dollars, specify currency)          . As provided in the Indenture and subject to certain limitations therein set forth, Notes are exchangeable for a like aggregate principal amount of Notes of a like tenor and of a different authorized denomination as requested by the Holder surrendering the same.

          No service charge shall be made for any such transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with the registration of such transfer or exchange, other than certain exchanges not involving any transfer.

          Certain terms used in this Note that are defined in the Indenture have the meanings set forth therein.

          This Note shall for all purposes be governed by, and construed in accordance with, the laws of the State of New York.

          The Company, the Trustee for the Notes and any agent of the Company or such Trustee may treat the Person in whose name this Note is registered as the Owner hereof for the purpose of receiving payment and for all other purposes, whether or not this Note is overdue and neither the Company, such Trustee nor any such agent shall be effected by notice to the contrary.


ABBREVIATIONS

The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:

 

 

 

 

 

 

TEN COM

- as tenants in common

UNIF GIFT MIN ACT

 

  Custodian

 

 

 

 


 


 

 

 

(Cust)

 

(Minor)

TEN ENT

- as tenants by the entireties

                                          Under Uniform Gifts to Minors Act

JT TEN

- as joint tenants with right of
  survivorship and not as tenants
  in common

 

 

 




 

 

                        (State)

          Additional abbreviations may also be used though not in the above list

5


FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto

 

 

 

 

Please Insert Social Security or Other

 

 

Identifying Number of Assignee

 

 

 


 

 

 

 

 


 

 

 

 




 

 

 




Please Print or Type Name and Address Including Zip Code of Assignee

 


the within Note and all rights thereunder, hereby irrevocably constituting and appointing

 

attorney


 


to transfer such Note on the books of American Express Company, with full power of substitution in the premises.


 

 

 

 

Dated:

 

 

 

 


 


 

 

 

Signature

 

 

 

 

 

 

 


 

 

 

NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the Note in every particular, without alteration of enlargement or any change whatsoever

6


Exhibit 4(i)

 

 

 

(Form of Supplemental Indenture Providing for Additional Trustee)

 


 

AMERICAN EXPRESS COMPANY

AND

 

(                                                   )

 

Trustee

 

 


 

 

(Number) SUPPLEMENTAL INDENTURE

 

Dated as of (Date)

 

to

 

[SUBORDINATED/SENIOR] INDENTURE

 

Dated as of              ,

 


 


          (Number) SUPPLEMENTAL INDENTURE, dated as of (Date) (this “Supplemental Indenture”), made and entered into by and between AMERICAN EXPRESS COMPANY, a corporation organized and existing under the laws of the State of New York, having its principal office at 200 Vesey Street, New York, New York 10285 (the “Company”), and (Name of Trustee), (a New York Corporation) having its Corporate Trust Office at (Address of Trustee), as Trustee (the “Supplemental Trustee”).

          WHEREAS, the Company entered into an Indenture dated as of August 1, 2007 (as supplemented from time to time, including pursuant to this Supplemental Indenture, being hereinafter referred to as the “Indenture”), with The Bank of New York Mellon (formerly known as The Bank of New York), a New York banking corporation having its principal office at 101 Barclay Street, New York, New York 10286, as trustee (the “Initial Trustee”), providing for the issuance by the Company, from time to time, of notes, debentures or other evidences of indebtedness to be issued in one or more series (the “Securities”), in such principal amount or amounts as may from time to time be authorized by or pursuant to the authority granted in one or more resolutions of the Board of Directors of the Company; and

          WHEREAS, the Company has issued pursuant to the Indenture the series of Securities denominated its          with respect to which          has been appointed to serve as Trustee; and;

          WHEREAS, Section 8.09 of the Indenture provides, among other things, that there shall at all times be a Trustee for the Securities of each series that shall be a corporation organized and doing business under the laws of the United States of America or of any State or the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000 subject to supervision or examination by Federal or State authority, and having a corporate trust office in the Borough of Manhattan, The City of New York, the State of New York, or in such other city as shall be set forth in a resolution of the Board of Directors relating to the Securities adopted pursuant to Section 3.01 of the Indenture, and the Supplemental Trustee is such a corporation; and

          WHEREAS, Section 8.09 of the Indenture provides, among other things, that a different Trustee may be appointed by the Company for each series of Securities prior to the issuance of such Securities, and that prior to the issuance thereof the Company and such Trustee (if other than the Initial Trustee) shall execute and deliver an indenture supplemental to the Indenture, which shall provide for the appointment of such Trustee as Trustee for such series of Securities; and

          WHEREAS, the Company desires to provide for the appointment of the Supplemental Trustee as Trustee of any such series of Securities to be issued hereafter as the Company shall designate pursuant to Section 3.01(s) of the Indenture prior to the issuance of such series; and

          WHEREAS, Section 11.01(g) of the Indenture provides that without the consent of the Holders of Securities, the Company, when authorized by a resolution of the Board of Directors, may enter into one or more indentures supplemental to the Indenture for the purpose of evidencing and providing for the acceptance of appointment thereunder of a Trustee other than the Initial Trustee as Trustee for a series of Securities and adding to or changing any of the provisions of the Indenture as shall be necessary to provide for or facilitate the administration of the trusts under the Indenture by more than one Trustee, pursuant to the requirements of Section 8.09 of the Indenture; and

          WHEREAS, the entry into this Supplemental Indenture by the parties hereto is in all respects authorized by the provisions of the Indenture; and

          WHEREAS, all things necessary to make this Supplemental Indenture a valid agreement of the Company in accordance with its terms have been done;

          NOW, THEREFORE:

          In consideration of the premises, of the purchase and acceptance of the Securities by the holders thereof and of the sum of One Dollar duly paid by the Supplemental Trustee at the execution and delivery of these presents, and for other valuable considerations, the receipt whereof is hereby acknowledged, and in order to provide for the appointment of, and to secure the agreement of, the Supplemental


Trustee to act as Trustee for such series of Securities, the Company, for itself and its successors, does hereby covenant and agree to and with the Supplemental Trustee and its successors in said trust, for the benefit of those who shall hold the Securities of such series, or any of them, as follows:

           Section 1

          Pursuant to the Board Resolution, the Company hereby appoints the Supplemental Trustee as Trustee for such series of Securities for which it shall be designated to act as Trustee as its agent to receive all the presentations, surrenders, notices and demands with respect to the Securities of such series referred to in Section 12.02 of the Indenture. The Supplemental Trustee hereby accepts the foregoing appointment, and agrees to act as Trustee for the Securities of such series and as agent for the foregoing purposes, and, as such, agrees to become a party to, and be bound by the terms and provisions of, the Indenture as supplemented hereby, it being understood that the Supplemental Trustee shall be entitled to all the rights, immunities and exculpations and the standard of care made available to the Trustees under the Indenture and that nothing therein or in this Supplemental Indenture shall constitute the Supplemental Trustee and any other Trustees for series of Securities issued pursuant to the Indenture co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts under the Indenture separate and apart from any trust or trust or trusts under the Indenture administered by any other such Trustee.

           Section 2

          The Indenture, as supplemented and amended by this Supplemental Indenture and all other indentures supplemental thereto, is in all respects ratified and confirmed, and the Indenture, the Supplemental Indenture and all indentures supplemental thereto shall be read, taken and construed as one and the same instrument.

           Section 3

          If any provision hereof limits, qualifies or conflicts with another provision hereof which is required to be included in this Supplemental Indenture by any of the provisions of the Trust Indenture Act, such required provision shall control.

           Section 4

          All covenants and agreements in this Supplemental Indenture by the Company shall bind its successors and assigns, whether so expressed or not.

           Section 5

          In case any provision in this Supplemental Indenture or in any series of Securities for which Supplemental Trustee shall be designated to act as Trustee shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Supplemental Indenture (or of such series of Securities) shall not in any way be affected or impaired thereby.

           Section 6

          Nothing in this Supplemental Indenture, expressed or implied, shall give to any Person, other than the parties hereto and their successors hereunder, and the Holders of any series of Securities for which Supplemental Trustee shall be designated to act as Trustee, any benefit or any legal or equitable right, remedy or claim under this Supplemental Indenture.

           Section 7

          This Supplemental Indenture and each Security of any series for which Supplemental Trustee shall be designated to act as Trustee shall be deemed to be a contract made under the laws of the State of New York and this Supplemental Indenture and each such Security for all purposes shall be governed by and construed in accordance with the laws of the State of New York.

           Section 8

          All terms used in this Supplemental Indenture not otherwise defined herein that are defined in the Indenture shall have the meaning set forth therein.

           Section 9

3


          This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument.

           Section 10

          The recitals contained herein and in the Securities for which Supplemental Trustee shall be designated to act as Trustee, except the certificate of authentication of the Supplemental Trustee thereon, shall be taken as statements of the Company, and the Supplemental Trustee assumes no responsibility for their correctness. The Supplemental Trustee makes no representations as to the validity or sufficiency of the Indenture, this Supplemental Indenture or such Securities and shall not be accountable for the use or application by the Company of such Securities or the proceeds thereof.

           Section 11

          For the purposes of this Indenture, the Corporate Trust Office of the Supplemental Trustee at the date of execution of this Supplemental Indenture is located at (Address).

          IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the day and year first above written.

 

 

 

 

AMERICAN EXPRESS COMPANY

 

 

 

 

 


 

 

Name:

 

 

Title:

 

 

 

 

 

(Name of Trustee),

 

 

as Supplemental Trustee

 

 

 

 

 


 

 

Name:

 

 

Title:

 

4


Exhibit 4(j)

AMERICAN EXPRESS COMPANY

AND

THE BANK OF NEW YORK,

Trustee

 

 

Subordinated Indenture

 

 

Dated as of August 1, 2007

 

 




AMERICAN EXPRESS COMPANY
Indenture Dated as of August 1, 2007

 

 

CROSS REFERENCE SHEET 1

          Showing the Location in the Indenture of the Provisions Inserted Pursuant to Sections 310 to 318(a) inclusive of the Trust Indenture Act of 1939.

 

 

 

 

 

Provisions of
Trust Indenture Act
of 1939

 

Indenture Provision

 

 

§ 310(a)

(1), (2)

 

 

§ 8.09

 

(3)

 

 

Not Applicable

 

(4)

 

 

Not Applicable

(b)

 

 

 

§ 8.08; § 8.10

(c)

 

 

 

Not Applicable

§ 311(a)

 

 

 

§ 8.13(a)

(b)

 

 

 

§ 8.13(b)

(b)

(2)

 

 

§ 9.03 (a)(ii); § 9.03(b)

(c)

 

 

 

Not Applicable

§ 312(a)

 

 

 

§ 9.01; § 9.02(a)

(b)

 

 

 

§ 9.02(b)

(c)

 

 

 

§ 9.02(c)

§ 313(a)

 

 

 

§ 9.03(a)

(b)

(1)

 

 

Not Applicable

 

(2)

 

 

§ 9.03(b)

(c)

 

 

 

§ 9.03(a); § 9.03(b)

(d)

 

 

 

§ 9.03(c)

§ 314(a)

 

 

 

§ 9.04

(b)

 

 

 

Not Applicable

(c)

 

 

 

§ 1.02

(d)

 

 

 

Not Applicable

(e)

 

 

 

§ 1.02

(f)

 

 

 

Not Applicable

§ 315(a)

(1)

 

 

§ 8.01(a)(i)

 

(2)

 

 

§ 8.01(a)(ii)

(b)

 

 

 

§ 8.02

(c)

 

 

 

§ 8.01(b)

(d)

(1)

 

 

§ 8.01 (a)

 

(2)

 

 

§ 8.01(c)(ii)

 

(3)

 

 

§ 8.01(c)(iii)

(e)

 

 

 

§ 7.14

§ 316(a)

 

 

 

§ 7.12; § 7.13

(b)

 

 

 

§ 7.08

(c)

 

 

 

§ 1.04

§ 317(a)

(1), (2)

 

 

§ 7.03; § 7.04

(b)

 

 

 

§ 12.03

§ 318(a)

 

 

 

§ 1.08


 

 

1 This Cross-Reference Sheet is not part of the Indenture.

i


TABLE OF CONTENTS

 

 

 

 

 

 

 

 

 

Page

 

 

 

 

 

ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

 

Section 1.01.

 

Definitions

 

1

 

 

 

 

 

Section 1.02.

 

Compliance Certificates and Opinions

 

7

 

 

 

 

 

Section 1.03.

 

Form of Documents Delivered to Trustee

 

8

 

 

 

 

 

Section 1.04.

 

Act of Holders

 

9

 

 

 

 

 

Section 1.05.

 

Notices, etc., to Trustee and Company

 

9

 

 

 

 

 

Section 1.06.

 

Notice to Holders; Waiver

 

10

 

 

 

 

 

Section 1.07.

 

Immunity of Incorporators; Stockholders, Officers and Directors

 

10

 

 

 

 

 

Section 1.08.

 

Conflict with Trust Indenture Act

 

10

 

 

 

 

 

Section 1.09.

 

Effect of Headings and Table of Contents

 

11

 

 

 

 

 

Section 1.10.

 

Successors and Assigns

 

11

 

 

 

 

 

Section 1.11.

 

Separability Clause

 

11

 

 

 

 

 

Section 1.12.

 

Benefits of Indenture

 

11

 

 

 

 

 

Section 1.13.

 

Governing Law

 

11

 

 

 

 

 

Section 1.14.

 

Cross References

 

11

 

 

 

 

 

Section 1.15.

 

Counterparts

 

11

 

 

 

 

 

Section 1.16.

 

Legal Holidays

 

11

 

 

 

 

 

Section 1.17.

 

Securities in Foreign Currencies

 

12

 

 

 

 

 

Section 1.18.

 

Force Majeure

 

12

 

 

 

 

 

ARTICLE TWO
SECURITY FORMS

 

 

 

 

 

Section 2.01.

 

Forms Generally

 

12

 

 

 

 

 

Section 2.02.

 

Form of Certificate of Authentication

 

13

 

 

 

 

 

Section 2.03.

 

Securities in Global Form

 

13

 

 

 

 

 

ARTICLE THREE
THE SECURITIES

 

 

 

 

 

Section 3.01.

 

Amount Unlimited; Issuable in Series

 

14

 

 

 

 

 

Section 3.02.

 

Denominations

 

17

 

 

 

 

 

Section 3.03.

 

Authentication and Dating

 

17

ii


TABLE OF CONTENTS
(continued)

 

 

 

 

 

 

 

 

 

Page

 

 

 

 

 

 

 

 

 

 

Section 3.04.

 

Execution of Securities

 

19

 

 

 

 

 

Section 3.05.

 

Exchange and Registration of Transfer of Securities

 

20

 

 

 

 

 

Section 3.06.

 

Mutilated, Destroyed, Lost or Stolen Securities

 

22

 

 

 

 

 

Section 3.07.

 

Temporary Securities

 

23

 

 

 

 

 

Section 3.08.

 

Payment of Interest; Interest Rights Preserved

 

23

 

 

 

 

 

Section 3.09.

 

Persons Deemed Owners

 

25

 

 

 

 

 

Section 3.10.

 

Cancellation

 

25

 

 

 

 

 

Section 3.11.

 

Computation of Interest

 

25

 

 

 

 

 

Section 3.12.

 

CUSIP Numbers

 

25

 

 

 

 

 

ARTICLE FOUR
REDEMPTION OF SECURITIES

 

Section 4.01.

 

Applicability of Article

 

26

 

 

 

 

 

Section 4.02.

 

Election to Redeem; Notice to Trustee

 

26

 

 

 

 

 

Section 4.03.

 

Selection by Trustee of Securities to Be Redeemed

 

26

 

 

 

 

 

Section 4.04.

 

Notice of Redemption

 

27

 

 

 

 

 

Section 4.05.

 

Deposit of Redemption Price

 

27

 

 

 

 

 

Section 4.06.

 

Securities Payable on Redemption Date

 

27

 

 

 

 

 

Section 4.07.

 

Securities Redeemed in Part

 

28

 

 

 

 

 

ARTICLE FIVE
SINKING FUNDS

 

Section 5.01.

 

Applicability of Article

 

28

 

 

 

 

 

Section 5.02.

 

Satisfaction of Mandatory Sinking Fund Payments with Securities

 

28

 

 

 

 

 

Section 5.03.

 

Redemption of Securities for Sinking Fund

 

29

 

 

 

 

 

ARTICLE SIX
SATISFACTION AND DISCHARGE

 

Section 6.01.

 

Satisfaction and Discharge of Indenture

 

30

 

 

 

 

 

Section 6.02.

 

Satisfaction, Discharge and Defeasance of Securities of any Series

 

32

 

 

 

 

 

Section 6.03.

 

Application of Trust Money

 

33

 

 

 

 

 

Section 6.04.

 

Paying Agent to Repay Moneys Held

 

33

 

 

 

 

 

Section 6.05.

 

Return of Unclaimed Moneys

 

34

 

 

 

 

 

iii


TABLE OF CONTENTS
(continued)

 

 

 

 

 

 

 

 

 

Page

 

 

 

 

 

 

 

 

 

 

ARTICLE SEVEN
REMEDIES

 

Section 7.01.

 

Events of Default

 

34

 

 

 

 

 

Section 7.02.

 

Acceleration of Maturity; Rescission and Annulment

 

36

 

 

 

 

 

Section 7.03.

 

Collection of Indebtedness and Suits for Enforcement by Trustee

 

37

 

 

 

 

 

Section 7.04.

 

Trustee May File Proofs of Claim

 

38

 

 

 

 

 

Section 7.05.

 

Trustee May Enforce Claims without Possession of Securities

 

39

 

 

 

 

 

Section 7.06.

 

Application of Money Collected

 

39

 

 

 

 

 

Section 7.07.

 

Limitation on Suits

 

39

 

 

 

 

 

Section 7.08.

 

Unconditional Right of Holders to Receive Principal, Premium and Interest

 

40

 

 

 

 

 

Section 7.09.

 

Restoration of Rights and Remedies

 

40

 

 

 

 

 

Section 7.10.

 

Rights and Remedies Cumulative

 

40

 

 

 

 

 

Section 7.11.

 

Delay or Omission Not Waiver

 

41

 

 

 

 

 

Section 7.12.

 

Control by Holders

 

41

 

 

 

 

 

Section 7.13.

 

Waiver of Past Defaults

 

41

 

 

 

 

 

Section 7.14.

 

Undertaking for Costs

 

42

 

 

 

 

 

Section 7.15.

 

Waiver of Stay or Extension Laws

 

42

 

 

 

 

 

ARTICLE EIGHT
THE TRUSTEE

 

Section 8.01.

 

Certain Duties and Responsibilities

 

42

 

 

 

 

 

Section 8.02.

 

Notice of Defaults

 

43

 

 

 

 

 

Section 8.03.

 

Certain Rights of Trustee

 

44

 

 

 

 

 

Section 8.04.

 

Not Responsible for Recitals or Issuance of Securities

 

45

 

 

 

 

 

Section 8.05.

 

May Hold Securities

 

45

 

 

 

 

 

Section 8.06.

 

Money Held in Trust

 

46

 

 

 

 

 

Section 8.07.

 

Compensation and Reimbursement

 

46

 

 

 

 

 

Section 8.08.

 

Disqualification; Conflicting Interests

 

46

 

 

 

 

 

Section 8.09.

 

Corporate Trustee Required; Different Trustees for Different Series; Eligibility

 

47

 

 

 

 

 

Section 8.10.

 

Resignation and Removal; Appointment of Successor

 

47

iv


TABLE OF CONTENTS
(continued)

 

 

 

 

 

 

 

 

 

Page

 

 

 

 

 

Section 8.11.

 

Acceptance of Appointment by Successor

 

49

 

 

 

 

 

Section 8.12.

 

Merger, Conversion, Consolidation or Succession to Business

 

49

 

 

 

 

 

Section 8.13.

 

Preferential Collection of Claims against Company

 

50

 

 

 

 

 

Section 8.14.

 

Authenticating Agent

 

50

 

 

 

 

 

ARTICLE NINE
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY

 

 

 

 

 

Section 9.01.

 

Company to Furnish Trustee Names and Addresses of Holders

 

51

 

 

 

 

 

Section 9.02.

 

Preservation of Information; Communications to Holders

 

51

 

 

 

 

 

Section 9.03.

 

Reports by Trustee

 

53

 

 

 

 

 

Section 9.04.

 

Reports by Company

 

53

 

 

 

 

 

ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

 

Section 10.01.

 

Company May Consolidate, etc., Only on Certain Terms

 

54

 

 

 

 

 

Section 10.02.

 

Successor Corporation Substituted

 

54

 

 

 

 

 

ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES

 

Section 11.01.

 

Supplemental Indentures without Consent of Holders

 

55

 

 

 

 

 

Section 11.02.

 

Supplemental Indentures with Consent of Holders

 

56

 

 

 

 

 

Section 11.03.

 

Execution of Supplemental Indentures

 

57

 

 

 

 

 

Section 11.04.

 

Notice of Supplemental Indenture

 

58

 

 

 

 

 

Section 11.05.

 

Effect of Supplemental Indentures

 

58

 

 

 

 

 

Section 11.06.

 

Conformity with Trust Indenture Act

 

58

 

 

 

 

 

Section 11.07.

 

Reference in Securities to Supplemental Indentures

 

58

 

 

 

 

 

ARTICLE TWELVE
COVENANTS

 

Section 12.01.

 

Payment of Principal, Premium and Interest

 

58

 

 

 

 

 

Section 12.02.

 

Maintenance of Office or Agency

 

59

 

 

 

 

 

Section 12.03.

 

Money for Securities Payments to Be Held in Trust

 

59

 

 

 

 

 

Section 12.04.

 

Payment of Taxes and Other Claims

 

60

 

 

 

 

 

Section 12.05.

 

Statement as to Compliance

 

60

 

 

 

 

 

Section 12.06.

 

Corporate Existence

 

61

v


TABLE OF CONTENTS
(continued)

 

 

 

 

 

 

 

 

 

Page

 

 

 

 

 

Section 12.07.

 

Permit No Vacancy in Office of Trustee

 

61

 

 

 

 

 

Section 12.08.

 

Other Instruments and Acts

 

61

 

 

 

 

 

Section 12.09.

 

Waiver

 

61

 

 

 

 

 

ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES

 

Section 13.01.

 

Securities Subordinate to Senior Indebtedness

 

61

 

 

 

 

 

Section 13.02.

 

Payments to Securityholders

 

62

 

 

 

 

 

Section 13.03.

 

Subrogation to Rights of Holders of Senior Indebtedness

 

63

 

 

 

 

 

Section 13.04.

 

No Impairment of Subordination

 

64

 

 

 

 

 

Section 13.05.

 

Trustee to Effectuate Subordination

 

64

 

 

 

 

 

Section 13.06.

 

Notice to Trustee

 

65

 

 

 

 

 

Section 13.07.

 

Reliance on Certificate of Liquidating Agent

 

66

 

 

 

 

 

Section 13.08.

 

Trustee Not Fiduciary for Holders of Senior Indebtedness

 

66

 

 

 

 

 

Section 13.09.

 

Rights of Trustee as Holder of Senior Indebtedness

 

66

 

 

 

 

 

Section 13.10.

 

Article Applicable to Paying Agent

 

66

vi


          INDENTURE, dated as of August 1, 2007, between AMERICAN EXPRESS COMPANY, a New York corporation, having its principal office at 200 Vesey Street, New York, New York 10285 (the “Company”), and THE BANK OF NEW YORK, a New York banking corporation, having its corporate trust office at 101 Barclay Street, New York, New York 10286, as trustee hereunder (the “Trustee”).

RECITALS OF THE COMPANY

          The Company is authorized to borrow money for its corporate purposes and to issue debentures, notes or other evidences of unsecured, subordinated indebtedness therefor; and for its corporate purposes, the Company has determined to make and issue its debentures, notes or other evidences of unsecured, subordinated indebtedness to be issued in one or more series (the “Securities”), as hereinafter provided, up to such principal amount or amounts as may from time to time be authorized by or pursuant to the authority granted in one or more resolutions of the Board of Directors.

          All things necessary to make this Indenture a valid and legally binding agreement of the Company, in accordance with its terms, have been done.

          NOW, THEREFORE, THIS INDENTURE WITNESSETH:

          That, in consideration of the premises and of the mutual covenants herein contained and of the purchase and acceptance of the Securities by the holders thereof and of the sum of One Dollar to the Company duly paid by the Trustee at or before the ensealing and delivery of these presents, and for other valuable considerations, the receipt whereof is hereby acknowledged, and in order to declare the terms and conditions upon which the Securities are to be issued, IT IS HEREBY COVENANTED, DECLARED AND AGREED, by and between the parties hereto, that all the Securities are to be executed, authenticated and delivered subject to the further covenants and conditions hereinafter set forth; and the Company, for itself and its successors, does hereby covenant and agree to and with the Trustee and its successors in said trust, for the benefit of those who shall hold the Securities, or any of them, and, with respect to the provisions of Article Thirteen, the holders of Senior Indebtedness (as hereinafter defined) as follows:

ARTICLE ONE

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

          Section 1.01. Definitions.

          For all purposes of this Indenture, of all indentures supplemental hereto and all Securities issued hereunder except as otherwise expressly provided or unless the context otherwise requires: (a) the terms defined in this Article shall have the meanings assigned to them in this Article, and include the plural as well as the singular; (b) all terms used in this Indenture, in any indenture supplemental hereto or in any such Securities that are defined in the Trust Indenture Act shall have the meanings assigned to them in said Act; and (c) all accounting terms not otherwise defined herein or in such Securities shall have the meanings assigned to them in accordance with generally accepted accounting principles in effect at the date of computation.

1


          Certain terms used in Article Eight hereof are defined in that Article.

          “ Act ” when used with respect to any Holder has the meaning specified in Section 1.04 hereof.

          “ Affiliate ” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “ control ” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “ controlling ” and “ controlled ” have meanings correlative to the foregoing.

          “ Authenticating Agent: ” See Section 8.14 hereof.

          “ Authorized Newspaper ” means a newspaper of general circulation in the same city in which the Place of Payment with respect to Securities of a series shall be located or in the Borough of Manhattan, The City of New York, printed in the English language and customarily published on each Business Day, whether or not published on Saturdays, Sundays or holidays. Whenever successive weekly publications in an Authorized Newspaper are required hereunder, they may be made (unless otherwise expressly provided herein) on the same or different days of the week and in the same or in different Authorized Newspapers.

          “ Bearer Rules ” means the provisions of the Internal Revenue Code, in effect from time to time, governing the treatment of bearer obligations and any regulations thereunder including, to the extent applicable to any series of Securities, proposed or temporary regulations.

          “ Board of Directors ” means either the board of directors of the Company or any committee of that board duly authorized to act hereunder or any directors and/or officers of the Company to whom that board or committee shall have delegated its authority.

          “ Board Resolution ” means a copy of a resolution or resolutions certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.

          “ Business Day ” means, subject to modification hereof by any Board Resolution or supplemental indenture provided for by Section 3.01, (i) when used with respect to any payment, each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in the Place of Payment with respect to such payment are authorized or required by law or executive order to close and (ii) when used for any other purpose, each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in the Borough of Manhattan, The City of New York, or in the city in which the Corporate Trust Office of the Trustee is located are authorized or required by law or executive order to close.

          “ Certificate of Authentication: ” See Section 2.02.

          “ Commission ” means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or if at any time after the execution of this

2


Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.

          “ Company ” means the corporation named as the “ Company ” in the first paragraph of this instrument until a successor corporation shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “ Company ” shall mean each such successor corporation.

          “ Company Consent, ” “ Company Order and Company Request ” mean, respectively, a written consent, order or request signed in the name of the Company by any one of its Officers and delivered to the Trustee.

          “ Corporate Trust Office ” means the principal office of the Trustee at which at any particular time its corporate trust business shall be principally administered, which office of The Bank of New York, at the date of the execution of this Indenture, is located at 101 Barclay Street, New York, New York 10286, Attn: Corporate Trust Administration.

          “ corporation ” means a corporation, association, company or business trust.

          “ Debt ” of any Person at any date means all obligations which in accordance with generally accepted accounting principles would be included in determining total liabilities as shown on the liabilities side of the balance sheet of such Person at such date. Such term shall include all obligations of such Person guaranteeing any Debt of any third Person.

          “ Defaulted Interest: ” See Section 3.08 hereof.

          “ Depositary ” when used with respect to the Securities of any series issuable or issued, in whole or in part, in the form of a Global Security, means the Person designated as Depositary by the Company pursuant to Section 3.01 until a successor Depositary shall have been designated pursuant to the applicable provisions of this Indenture, and thereafter “Depositary” shall mean or include each Person who is then a Depositary hereunder, and if at any time there is more than one such Person, “Depositary” as used with respect to the Securities of any such series shall mean the Depositary with respect to the Securities of that series.

          “ Dollars ” and the sign “$” mean the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.

          “ Exchange Act ” means the Securities Exchange Act of 1934, as amended.

          “ Event of Default: ” See Section 7.01 hereof.

          “ Federal Bankruptcy Code: ” See Section 7.01 hereof.

          “ Foreign Currency ” means any currency issued by the government of any country other than the United States of America or any composite currency (including, without limitation, the Euro).

3


          “ Global Security ” means a Security issued to evidence all or a part of any series of Securities that is executed by the Company and authenticated and delivered to the Depositary or pursuant to the Depositary’s instructions, all in accordance with this Indenture and pursuant to a Company Order, which shall be registered in the name of the Depositary or its nominee.

          “ Holder ” means, unless otherwise established as contemplated by Section 3.01 with respect to the Securities of any series, a Person in whose name a Security of any series is registered in the Securities Register for the Securities of such series.

          “ Indenture ” means this instrument as originally executed, or as it may be amended or supplemented from time to time as herein provided, and shall include the form and terms of particular series of Securities established as contemplated hereunder.

          “ interest ” when used with respect to any non-interest bearing Security means interest payable after Maturity thereto.

          “ Interest Payment Date ” means the Stated Maturity of an installment of interest on the Securities of any series.

          “ Maturity ” when used with respect to any Security means the date on which the principal of such Security becomes due and payable as therein or herein provided whether at the Stated Maturity or by declaration of acceleration, call for redemption, pursuant to a sinking fund, notice of option to elect repayment or otherwise.

          “Members:” See Section 3.04(e) hereof.

          “ Officer ” means the Chairman of the Board, any one of the Vice Chairmen, the President, any one of the Vice Presidents, the Treasurer, any one of the Assistant Treasurers, the Comptroller, any one of the Assistant Comptrollers, the Secretary or any one of the Assistant Secretaries of the Company.

          “ Officer’s Certificate ” means a certificate of the Company signed by any one of its Officers and delivered to the Trustee. Wherever this Indenture requires that an Officer’s Certificate be signed also by an accountant or other expert, such accountant or other expert (except as otherwise expressly provided in this Indenture) may be in the employ of the Company.

          “ Opinion of Counsel ” means a written opinion of the General Counsel or Counsel of the Company, or other counsel for the Company who may be an employee of the Company.

          “ Original Issue Discount Security ” means any Security that provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration pursuant to Section 7.02 hereof.

          “ Outstanding ” when used with respect to Securities means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:

 

 

 

          (a)     Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;

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          (b)     Securities or portions thereof for whose payment or redemption the necessary amount of money or other trust funds, including trust funds established under Section 6.01 or 6.02 hereof, has been theretofore deposited with the Trustee or any Paying Agent (other than the Company or any other obligor on the Securities) in trust for the Holders of such Securities or shall have been set aside and segregated in trust by the Company or any other obligor on the Securities (if the Company or any other obligor on the Securities shall act as its own Paying Agent) for the Holders of such Securities; provided , however , that, if such Securities or portions thereof are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; and

 

 

 

          (c)     Securities which have been paid pursuant to Section 3.06 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company;

provided , however , that in determining whether the Holders of the requisite principal amount of Securities Outstanding have given any request, demand, authorization, direction, notice, consent or waiver hereunder, (i) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded (Securities so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or such other obligor), and (ii) the principal amount of an Original Issue Discount Security that shall be deemed to be outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration pursuant to Section 7.02 hereof.

          “ Overdue Rate ” with respect to any series of the Securities means the rate designated as such in or pursuant to a Board Resolution or supplemental indenture, as the case may be, relating to such series as contemplated by Section 3.01 hereof, or if not so designated, the rate of interest, if any, on such series of Securities.

          “ Paying Agent ” means any Person authorized by the Company to pay the principal of (or premium, if any) or interest, if any, on any Securities on behalf of the Company.

          “ Person ” means any individual, corporation, partnership, limited liability company, joint venture, joint stock company, association, trust, unincorporated organization or government or any agency or political subdivision thereof.

          “ Place of Payment ” when used with respect to the Securities of any series, means the place or places where the principal of (and premium, if any) and interest, if any, on the Securities

5


of such series are payable as specified as contemplated by Section 3.01 or, if not so specified, as specified in Section 12.02.

          “ Principal Subsidiaries ” of the Company means the following so long as they continue to be Subsidiaries: American Express Travel Related Services Company, Inc., American Express Financial Corporation, American Express Bank Ltd. and any one or more Subsidiaries of the Company that shall succeed to all or substantially all of the business of any of the foregoing Subsidiaries or succeed to the ownership of all or substantially all of the property and assets of any of the foregoing Subsidiaries.

          “ record date: ” See Section 3.08 hereof.

          “ Redemption Date, ” when used with respect to any Security to be redeemed, means the date fixed for such redemption in or pursuant to a Board Resolution or supplemental indenture, as the case may be, with respect to the Securities of such series as contemplated by Section 3.01 hereof.

          “ Redemption Price, ” when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to a Board Resolution or supplemental indenture, as the case may be, with respect to the Securities of such series as contemplated by Section 3.01 hereof, exclusive of interest accrued and unpaid to the Redemption Date.

          “ Responsible Officer, ” shall mean, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.

          “ Securities: ” See RECITALS OF THE COMPANY herein.

          “ Securities Register ” and “ Securities Registrar: ” See Section 3.05 hereof.

          “ Senior Indebtedness ” means all indebtedness incurred or guaranteed by the Company for money borrowed whether outstanding on the date hereof or incurred in the future, all deferrals, renewals or extensions of any such indebtedness and all indebtedness issued in exchanges for any such indebtedness, unless, in any such case, such indebtedness or guarantee provides by its terms that it shall not constitute Senior Indebtedness.

          “ Stated Maturity ” when used with respect to any Security or any installment of interest thereon means the date specified in such Security as the fixed date on which the principal of such Security or such installment of interest is due and payable.

          “ Subsidiary ” of any Person means (i) any corporation of which such Person at the time owns or controls, directly or through an intervening medium, more than fifty per cent (50%) of each class of outstanding Voting Stock, (ii) any limited liability company, general partnership, joint venture, joint stock company or similar entity, of which such Person at the time owns or

6


controls, directly or indirectly, more than fifty per cent (50%) of its outstanding partnership, membership or similar voting interests, as the case may be and (iii) any limited partnership of which such Person, directly or indirectly, is a general partner, and unless otherwise specified shall mean a Subsidiary of the Company.

          “ Trustee ” means the Person named as the “ Trustee ” in the first paragraph of this instrument and, subject to the provisions of Article Eight hereof, shall also include its successors and assigns as Trustee hereunder. If there shall be at any one time more than one Trustee hereunder, “ Trustee ” shall mean each such Trustee and shall apply to each such Trustee only with respect to those series of the Securities with respect to which it is serving as Trustee.

          “ Trust Indenture Act ” means the Trust Indenture Act of 1939, as amended and as in force at the date as of which this instrument was executed, except as provided in Section 11.06 hereof.

          “ U.S. Government Obligations ” means securities that are (i) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case, are not callable or redeemable at the option of the issuer thereof, and which shall also include a depository receipt issued by a commercial bank or trust company as custodian with respect to any such obligation set forth in (i) or (ii) above or a specific payment of interest on or principal of any such obligation held by such custodian for the account of the holder of a depository receipt; provided , however , that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the obligation evidenced by such depository receipt or the specific payment of interest on or principal of such obligation.

          “ Vice President, ” when used with respect to the Company or the Trustee means any vice president, whether or not designated by a number or a word or words added before or after the title “ vice president.

          “ Voting Stock ” means stock of the class or classes having general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of such corporation (irrespective of whether or not at the time stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency).

          Section 1.02. Compliance Certificates and Opinions.

          Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.

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          Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include

 

 

 

          (a)     a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;

 

 

 

          (b)     a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

 

 

 

          (c)     a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and

 

 

 

          (d)     a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.

          Section 1.03. Form of Documents Delivered to Trustee.

          In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.

          Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.

          Any certificate, statement or opinion of an Officer of the Company or of counsel may be based, insofar as it relates to accounting matters, upon a certificate or opinion of or representations by an accountant or firm of accountants in the employ of the Company, unless such Officer or counsel, as the case may be, knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the accounting matters upon which his or her certificate, statement or opinion is based are erroneous.

          Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated to form one instrument.

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          Section 1.04. Act of Holders.

 

 

 

          (a)     Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee, and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “ Act ” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 8.01 hereof) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section 1.04.

 

 

 

          (b)     The fact and date of the execution by any Person of any such instrument or writing, or the authority of the Person executing the same, may be proved in any manner which the Trustee deems sufficient and in accordance with such reasonable requirements as the Trustee may determine.

 

 

 

          (c)     The ownership of Securities of any series shall be proved by the Securities Register.

 

 

 

          (d)     Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Security shall bind the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done or suffered to be done by the Trustee or the Company or any agent of the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security.

 

 

 

          (e)     The Company may set a record date for purposes of determining the identity of Holders entitled to vote or consent or take any other action under this Indenture, which record date shall not be more than 60 days nor less than 10 days prior to the solicitation with respect thereto, and only such Holders shall be so entitled.

          Section 1.05. Notices, etc., to Trustee and Company.

          Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,

 

 

 

          (a)     the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, or

 

 

 

          (b)     the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (except as provided in Subsections (d) and (f) of Section 7.01 hereof) if in writing and mailed, first-class postage prepaid, to the Company addressed to it at the

9



 

 

 

address of its principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the Company.

          Section 1.06. Notice to Holders; Waiver.

          Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at his address as it appears in the Securities Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Any notice mailed in the manner prescribed by this Indenture shall be deemed to have been given whether or not such Holder receives said notice. In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.

          Section 1.07. Immunity of Incorporators; Stockholders, Officers and Directors.

          No recourse shall be had for the payment of the principal of (and premium, if any) or the interest, if any, on any Security of any series, or for any claim based thereon, or upon any obligation, covenant or agreement of this Indenture, against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or of any successor corporation, either directly or indirectly through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise; it being expressly agreed and understood that this Indenture and all the Securities of each series are solely corporate obligations, and that no personal liability whatever shall attach to, or is incurred by, any incorporator, stockholder, officer or director, past, present or future, of the Company or of any successor corporation, either directly or indirectly through the Company or any successor corporation, because of the incurring of the indebtedness hereby authorized or under or by reason of any of the obligations, covenants or agreements contained in this Indenture or in any of the Securities of each series, or to be implied herefrom or therefrom; and that all such personal liability is hereby expressly released and waived as a condition of, and as part of the consideration for, the execution of this Indenture and the issue of the Securities of each series.

          Section 1.08. Conflict with Trust Indenture Act.

          If any provision hereof limits, qualifies or conflicts with another provision hereof that is required to be included in this Indenture by any of the provisions of the Trust Indenture Act, such required provision shall control.

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          Section 1.09. Effect of Headings and Table of Contents.

          The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

          Section 1.10. Successors and Assigns.

          All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.

          Section 1.11. Separability Clause.

          In case any provision in this Indenture or in the Securities of any series shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions (or of any other series of Securities) shall not in any way be affected or impaired thereby.

          Section 1.12. Benefits of Indenture.

          Nothing in this Indenture or in the Securities, expressed or implied, shall give to any Person, other than the parties hereto and their successors hereunder, the Holders of the Securities and, with respect to the provisions of Article Thirteen, the Holders of Senior Indebtedness, any benefit or any legal or equitable right, remedy or claim under this Indenture.

          Section 1.13. Governing Law.

          This Indenture and each Security shall be deemed to be a contract made under the laws of the State of New York and this Indenture and each Security for all purposes shall be governed by and construed in accordance with the laws of the State of New York.

          Section 1.14. Cross References.

          All references herein to “ Articles ” and other subdivisions are to the corresponding Articles or other subdivisions of this Indenture; and the words “ herein, ” “ hereof, ” “ hereby, ” “ hereunder, ” “ hereinbefore ” and “ hereinafter ” and other words of similar purport refer to this Indenture generally and not to any particular Article, Section or other subdivision hereof.

          Section 1.15. Counterparts.

          This Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument.

          Section 1.16. Legal Holidays.

          In any case where any Interest Payment Date, Redemption Date or Stated Maturity of a Security of any series is not a Business Day at the relevant Place of Payment with respect to Securities of such series, then notwithstanding any other provision of this Indenture or the Securities, payment of interest, if any, or principal and premium, if any, with respect to such Security need not be made at such Place of Payment on such date but may be made on the next

11


succeeding Business Day at such Place of Payment with the same force and effect as if made on such Interest Payment Date or Redemption Date or at the Stated Maturity, and no interest shall accrue on such payment for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.

          Section 1.17. Securities in Foreign Currencies.

          Whenever this Indenture provides for any action by, or any distribution to, Holders of Securities denominated in Dollars and in any Foreign Currency, in the absence of any provision to the contrary established as contemplated by Section 3.01 for the Securities of any particular series, any amount in respect of any Security denominated in a Foreign Currency shall be treated for any such action or distribution as that amount of Dollars that could be obtained for such amount on such reasonable basis of exchange and as of such date as the Company may specify in a Company Order.

          The Trustee shall segregate moneys, funds and accounts held by the Trustee in one currency or currency unit from any moneys, funds or accounts in any other currencies or currency units, notwithstanding any provision herein which would otherwise permit the Trustee to commingle such amounts.

          Section 1.18. Force Majeure.

          In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

ARTICLE TWO

SECURITY FORMS

          Section 2.01. Forms Generally.

          The Securities of each series shall be in substantially the form as shall be established by or pursuant to the authority granted in a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with any law or with any rules made pursuant thereto or with any rules of any securities exchange or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution of the Securities.

          The definitive Securities of each series shall be printed, lithographed or engraved or produced by any combination of these methods on steel engraved borders or may be produced in

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any other manner, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities.

          Section 2.02. Form of Certificate of Authentication.

          The Certificate of Authentication on all Securities shall be in substantially the following form:

          This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.

 

 

 

 

The Bank of New York,
as Trustee

 

 

 

 

 

 

By

[Authorized Officer or

 

 

Authorized Signatory]

 

 

 

 

or

 

 

 

 

 

 

 

By

[As Authenticating Agent]

 

 

 

 

 

 

By

[Authorized Officer or

 

 

Authorized Signatory]

          Section 2.03. Securities in Global Form.

          If any Security of a series is issuable as a Global Security (in whole or in part), such Global Security may provide that it shall represent the aggregate principal amount of Outstanding Securities of such series from time to time represented thereby in the records of the Trustee or endorsed thereon and may also provide that the aggregate principal amount of Outstanding Securities of such series represented thereby in the records of the Trustee or endorsed thereon may from time to time be reduced or increased. Any change in the records of the Trustee or any endorsement of a Global Security to reflect the aggregate principal amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee in accordance with provisions established as contemplated by Section 3.01.

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ARTICLE THREE

THE SECURITIES

          Section 3.01. Amount Unlimited; Issuable in Series.

          The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited.

          The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution or one or more indentures supplemental hereto, prior to the issuance of any Securities of any series:

 

 

 

          (a)     the title of the Securities of such series (which shall distinguish the Securities of such series from all other series of Securities);

 

 

 

          (b)     any limit upon the aggregate principal amount of the Securities of such series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of such series pursuant to Sections 3.05, 3.06, 3.07, 4.07, or 11.07 hereof);

 

 

 

          (c)       the date or dates (or manner of determining the same) on which the principal of and premium, if any, on the Securities of such series is payable (which if so provided in or pursuant to the authority granted in such Board Resolution or supplemental indenture, may be determined by the Company from time to time and set forth in the Securities of the series issued from time to time);

 

 

 

          (d)     the Persons to whom interest on Securities of such series shall be payable, if other than the Persons in whose names such Securities are registered at the close of business on the record date for such interest;

 

 

 

          (e)     the rate or rates (or manner of determining the same) at which the Securities of such series shall bear interest, if any, the date or dates from which such interest shall accrue (which, in either case or both, if so provided in or pursuant to the authority granted in such Board Resolution or supplemental indenture, may be determined by the Company from time to time and set forth in the Securities of the series issued from time to time), the Interest Payment Dates on which such interest shall be payable (or manner of determining the same) and, if other than as set forth in Section 3.08 hereof, the record date for the determination of Holders to whom interest is payable and the basis upon which interest shall be calculated if other than as set forth in Section 3.11;

 

 

 

          (f)     the place or places at which (i) the principal of and premium, if any, and interest, if any, on Securities of such series shall be payable if other than as set forth in the third sentence of Section 12.02, (ii) registration of transfer of Securities of such series may be effected, (iii) exchanges of Securities of such series may be effected and (iv) notice and demands to or upon the Company in respect of the Securities of such series

14



 

 

 

and this Indenture may be served; and if such is the case, that the principal of such Securities shall be payable without the presentment or surrender thereof;

 

 

 

          (g)     the price or prices at which, the period or periods within which and the terms and conditions upon which Securities of such series may be redeemed, in whole or in part, at the option of the Company, at the option of a Holder or otherwise;

 

 

 

          (h)     the obligation, if any, of the Company to redeem, purchase or repay Securities of such series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the price or prices at which, the period or periods within which and the terms and conditions upon which Securities of such series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;

 

 

 

          (i)     if other than Dollars, the Foreign Currency in which payment of the principal of, premium, if any, and interest, if any, on the Securities of such series shall be payable or in which such Securities will be denominated;

 

 

 

          (j)     if the principal of, premium, if any, or interest, if any, on the Securities of such series are to be payable, at the election of the Company or a Holder thereof, in a coin or currency (which may be a composite currency) other than that in which such Securities are stated to be payable, the period or periods within which, and the terms and conditions upon which, such election may be made;

 

 

 

          (k)     if denominated or payable in any coin or currency, including composite currencies, other than Dollars, or if the terms of the Securities provide that the principal amount thereof payable at maturity may be more or less than the principal face amount thereof at original issuance, the method by which the Securities of such series shall be valued, which may be any reasonable method, against the Securities of all other series for voting, the giving of any request, demand, authorization, direction, notice, consent or waiver, distribution and all other purposes hereof and any provisions required for purposes of applying Sections 6.01 and 6.02;

 

 

 

          (l)     if the amount of payments of principal of and premium, if any, or interest, if any, on the Securities of such series may be determined with reference to an index, the formula or other method (which may be based on one or more currencies (including a composite currency), commodities, equity indices or other indices), and the manner in which such amounts shall be determined;

 

 

 

          (m)     if other than denominations of $1,000 and any integral multiple thereof, the denominations in which Securities of such series shall be issuable;

 

 

 

          (n)     if other than the principal amount thereof, the portion of the principal amount of Securities of such series that shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 7.02 hereof or the method by which such portion shall be determined;

 

 

 

          (o)     any addition to, or modification or deletion of; any Event of Default or any covenant of the Company specified herein with respect to the Securities of such series;

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          (p)     if other than the rate of interest, if any, stated in the title of the Securities of such series, the applicable Overdue Rate;

 

 

 

          (q)     if the Securities of such series do not bear interest, the applicable dates for purposes of Section 9.01 hereof;

 

 

 

          (r)     the inapplicability, if such is to be the case, to the Securities of such series of Section 6.02 relating to satisfaction, discharge and defeasance of Securities and any modification to Section 6.02;

 

 

 

          (s)     if other than The Bank of New York is to act as Trustee for the Securities of such series, the name and Corporate Trust Office of such Trustee;

 

 

 

          (t)     whether the Securities of such series shall be issued in whole or in part in the form of a Global Security or Securities and, in such case the terms and conditions, if any, upon which such Global Security or Securities may be exchanged in whole or in part for definitive Securities, the Depositary for such Global Security or Securities (which shall be a clearing agency registered under the Exchange Act, or any other applicable statute or regulation, to the extent required thereunder), whether such Global Security shall be permanent or temporary, any limitations on the rights of the Holder or Holders to transfer or exchange the same or to obtain the registration of transfer thereof in addition to or in lieu of those set forth in Section 3.05, any limitations on the rights of the Holder or Holders thereof to obtain certificates in definitive form, and, the provisions for determining the aggregate principal amount of Outstanding Securities from time to time represented thereby and any and all matters incidental to such Global Security or Securities;

 

 

 

          (u)     if the Securities of such series may be converted into or exchanged for other securities of the Company or any other Persons, the terms and conditions pursuant to which the Securities of such series may be converted or exchanged;

 

 

 

          (v)     if the principal of or premium, if any, or interest, if any, on the Securities of such series are to be payable, at the election of the Company or a Holder thereof, in securities or other property, the type and amount of such securities or other property, or the method by which such amount shall be determined, and the periods within which, and the terms and conditions upon which, any such election may be made;

 

 

 

          (w)     if the Securities of any such series are to be issuable as bearer securities, any and all matters incidental thereto;

 

 

 

          (x)     if the Securities of such series are to be issued upon the exercise of a warrant or right, the time, manner and place for such Securities to be authenticated and delivered; and

 

 

 

          (y)     any other terms of the Securities of such series (which terms shall not be inconsistent with the provisions of this Indenture, shall conform to any applicable requirements of the Trust Indenture Act, and shall not materially adversely affect the rights of the Holders of Securities then outstanding).

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          All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to the authority granted in such Board Resolution or in any such indenture supplemental hereto. All Securities of any one series need not be issued at the same time, and, unless otherwise provided, a series may be reopened for issuance of additional Securities of such series.

          Section 3.02. Denominations.

          Unless otherwise established as contemplated by Section 3.01, the Securities of each series shall be issuable only in registered form without coupons in such denominations as shall be specified as contemplated by Section 3.01 hereof. In the absence of any such specification with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $1,000 and any integral multiple thereof.

           Section 3.03. Authentication and Dating.

          At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication. Except as otherwise provided in this Article, the Trustee shall thereupon authenticate and deliver, or cause to be authenticated and delivered, said Securities pursuant to a Company Order without any further action by the Company. Securities shall be dated the date of their authentication. In authenticating (or causing authentication of) such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be provided with, prior to the initial authentication of such Securities, and (subject to Sections 8.01 and 8.03 hereof) shall be fully protected in relying upon:

 

 

 

 

          (a)     a Board Resolution relating thereto and, if applicable, an appropriate record of any action taken pursuant to such resolution, in each case certified by the Secretary or an Assistant Secretary of the Company;

 

 

 

          (b)     an executed supplemental indenture, if any, relating thereto;

 

 

 

          (c)     an Officer’s Certificate setting forth the form and terms of the Securities of such series established pursuant to Sections 2.01 and 3.01 hereof (to the extent not set forth in the documents delivered pursuant to Subsections 3.03(a) or 3.03(b)) and stating that all conditions precedent provided for in this Indenture relating to the issuance of such Securities have been complied with, that no Event of Default with respect to any series of Securities has occurred and is continuing and that the issuance of such Securities is not and will not result in (i) an Event of Default or an event or condition that, upon the giving of notice (or the acquisition of knowledge) or the lapse of time or both, would become an Event of Default or (ii) a default under the provisions of any other material instrument or agreement by which the Company is bound; and

 

 

 

          (d)     an Opinion of Counsel stating

 

 

 

 

          (i)     that the form and the terms of such Securities have been established by or pursuant to the authority granted in a Board Resolution or by a

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supplemental indenture as permitted by Sections 2.01 and 3.01 hereof in conformity with the provisions of this Indenture;

 

 

 

 

 

          (ii)     that such Securities, when executed and delivered by the Company, and authenticated and delivered by or on behalf of the Trustee in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization and, moratorium and other similar laws relating to or affecting creditors’ rights generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing and to such other qualifications as such counsel shall conclude do not materially affect the rights of Holders of such Securities;

 

 

 

 

 

          (iii)    that the Company has the corporate power to issue such Securities, and has duly taken all necessary corporate action with respect to such issuance;

 

 

 

 

 

          (iv)    that the issuance of such Securities will not contravene the charter or by-laws of the Company or result in any violation of any of the terms or provisions of any applicable law or regulation that would normally be applicable to general business entities with respect to such issuance or result in any material violation of any indenture, mortgage or other agreement known to such counsel by which the Company or any of its subsidiaries is bound;

 

 

 

 

 

          (v)     that this Indenture is qualified under the Trust Indenture Act; and

 

 

 

 

 

          (vi)    such other matters as the Trustee may reasonably request.

 

 

 

 

          (e)     Notwithstanding the provisions of Section 3.01 and of this Section 3.03, if all of the Securities of any series are not to be originally issued at the same time, then the documents required to be delivered pursuant to this Section 3.03 must be delivered only once, prior to the authentication and delivery of the first Security of such series; provided , however , that any subsequent request by the Company to the Trustee to authenticate Securities of such series upon original issuance shall constitute a representation and warranty by the Company and the Guarantor that, as of the date of such request, the statements made in any Officers’ Certificate delivered pursuant to this Section 3.03 shall be true and correct as if made on such date.

          The Trustee shall have the right to decline to authenticate and deliver, or cause to be authenticated and delivered, any Securities under this Section 3.03 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken or if the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Holders.

          Unless otherwise provided in the form of Securities of any particular series, each Security shall be dated the date of its authentication.

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Section 3.04. Execution of Securities.

 

 

 

          (a)     The Securities shall be signed in the name and on behalf of the Company by the manual or facsimile signatures of its Chairman of the Board, any one of its Vice Chairmen, its President or any one of its Vice Presidents, under its corporate seal (which may be printed, engraved or otherwise reproduced thereon, by facsimile or otherwise) and attested to by its Secretary or any one of its Assistant Secretaries, whose signatures may be manual or facsimile. Only such Securities as shall bear thereon a certificate of authentication substantially in the form hereinbefore recited, executed by or on behalf of the Trustee by manual signature, shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by or on behalf of the Trustee upon any Security executed by the Company shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Indenture.

 

 

 

          (b)     In case any Officer of the Company who shall have signed any of the Securities shall cease to be such officer before the Securities so signed shall have been authenticated and delivered by or on behalf of the Trustee, or disposed of by the Company, such Securities nevertheless may be authenticated and delivered or disposed of as though the person who signed such Securities had not ceased to be such officer of the Company; and any Security may be signed on behalf of the Company by such persons as, at the actual date of the execution of such Security, shall be the proper officers of the Company, although at the date of the execution of this Indenture any such person was not such an officer.

 

 

 

          (c)     If the Company shall establish pursuant to Section 3.01 that the Securities of a series are to be issued in whole or in part in the form of one or more Global Securities, then the Company shall execute and the Trustee shall authenticate and deliver one or more Global Securities that (i) shall represent an aggregate amount equal to the aggregate principal amount of the Outstanding Securities of such series to be represented by such Global Securities, (ii) shall be registered, if in registered form, in the name of the Depositary for such Global Security or Securities or the nominee of such Depositary, (iii) shall be delivered by the Trustee to such Depositary or pursuant to such Depositary’s instruction and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for the individual Securities represented hereby, this Global Security may not be transferred except as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.” The aggregate principal amount of each Global Security may from time to time be increased or decreased by adjustments made on the records of the Depositary for such Global Security or Securities or the nominee of such Depositary, as provided in this Indenture.

 

 

 

          (d)     Each Depositary designated pursuant to Section 3.01 for a Global Security in registered form must, at the time of its designation and at all times while it serves as such Depositary, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.

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          (e)     Members of, or participants in, the Depositary (“Members”) shall have no rights under this Indenture with respect to any Global Security held on their behalf by the Depositary or by the Security Registrar under such Global Security, and the Depositary may be treated by the Company, the Trustee, the Paying Agent and the Security Registrar and any of their agents as the absolute owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee, the Paying Agent or the Security Registrar or any of their agents from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Members, the operation of customary practices of the Depositary governing the exercise of the rights of an owner of a beneficial interest in any Global Security. The registered holder of a Global Security may grant proxies and otherwise authorize any Person, including Members and Persons that may hold interests through Members, to take any action that a Holder is entitled to take under this Indenture or the Securities.

          Section 3.05. Exchange and Registration of Transfer of Securities.

          Securities of any series (except for Global Securities, which may only be exchanged in the limited circumstances described below) may be exchanged for Securities of like tenor and aggregate principal amount of the same series of other authorized denominations. Unless otherwise established as contemplated by Section 3.01, Securities to be exchanged shall be surrendered at any of the offices or agencies of the Company maintained as provided in Section 12.02 hereof for such purpose, and the Company shall execute and register, or cause to be registered, and the Trustee shall authenticate and deliver, or cause to be authenticated and delivered, in exchange therefor the Security or Securities which the Holder making such exchange shall be entitled to receive.

          Unless otherwise established as contemplated by Section 3.01, the Company shall keep, at said office or agency in the same city in which the Corporate Trust Office of the Trustee is located, a register for each series of Securities issued hereunder (the register maintained at such office or agency being referred to as the “Securities Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities of such series and registration of transfer of such Securities as provided in this Article. The Securities Register shall be in written form or in any other form capable of being converted into written form within a reasonable time. The Trustee is hereby initially appointed “Securities Registrar” for the purpose of registering Securities and registering transfers of Securities as herein provided. Upon due presentment for registration of transfer of any Security of any series at any of the offices or agencies to be maintained by the Company, as provided in Section 12.02 hereof, the Company shall execute and register, or cause to be registered, and the Trustee shall authenticate and deliver, or cause to be authenticated and delivered, in the name of the transferee or transferees a new Security or Securities of the same series in authorized denominations for an equal aggregate principal amount.

          Every Security issued upon registration of transfer or exchange of Securities pursuant to this Section 3.05 shall be the valid obligation of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Security or Securities surrendered upon registration of such transfer or exchange.

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          All Securities presented for registration of transfer or for exchange, redemption or payment shall (if so required by the Company, the Trustee or the Securities Registrar) be duly endorsed by, or be accompanied by, a written instrument or instruments of transfer in form satisfactory to the Company, the Trustee and the Securities Registrar duly executed by the Holder thereof or his attorney duly authorized in writing.

          No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Sections 3.07, 4.07 or 11.07 hereof not involving any transfer.

          The Company shall not be required (a) to issue, register the transfer of or exchange any Security of any series during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of Securities of such series and ending at the close of business on the day of such mailing or (b) to register the transfer of or exchange any Security selected for redemption in whole or in part, except, in the case of any Security to be redeemed in part, the portion thereof not to be redeemed.

          As provided in Section 3.04 hereof, each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such Global Security or a nominee thereof and delivered to such Depositary or a custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture. Notwithstanding the foregoing and except as otherwise specified as contemplated by Section 3.01, no Global Security shall be registered for transfer or exchange, or authenticated or delivered, pursuant to this Section 3.05 or Sections 3.06, 3.07, 4.07 or 11.07 in the name of a Person other than the Depositary for such Security or its nominee until (i) the Depositary with respect to a Global Security notifies the Company in writing that it is unwilling or unable to continue as Depositary for such Global Security or the Depositary ceases to be a clearing agency registered under the Exchange Act or other applicable statute or regulation if required thereunder, and the Company notifies the Trustee that it is unable to locate a qualified successor Depositary, (ii) the Company executes and delivers to the Trustee a Company Order that such Global Security shall be so transferable and exchangeable or (iii) there shall have occurred and be continuing an Event of Default with respect to the Securities of such Series. Upon the occurrence in respect of any Global Security of any series of any one or more of the conditions specified in clauses (i), (ii) or (iii) of the preceding sentence or such other conditions as may be specified as contemplated by Section 3.01 for such series, the Company shall execute, and the Trustee upon receipt of a Company Order shall authenticate and deliver, without service charge, (i) to the Depositary or to each Person specified by such Depositary a new Security or Securities of the same series, of like tenor and terms in definitive form and of any authorized denomination as requested by such Person in aggregate principal amount equal to and in exchange for such Person’s beneficial interest in the Global Security, and (ii) to such Depositary a new Global Security of like tenor and terms and in a principal amount equal to the difference, if any, between the principal amount of the surrendered Global Security and the aggregate principal amount of Securities delivered pursuant to clause (i).

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          Except as provided in the preceding paragraph, any Security authenticated and delivered upon registration of transfer or, or in exchange for, or in lieu of, any Global Security or any portion thereof, whether pursuant to this Section 3.05, Section 3.06, 3.07, 4.07 or 11.07 or otherwise, shall also be a Global Security. Notwithstanding any other provision of this Indenture, a Global Security may not be transferred except as a whole by the Depositary for such Global Security to a nominee of such Depositary or to another Depositary or a nominee thereof or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or to another Depositary or a nominee thereof.

          Upon the exchange of a Global Security for Securities in definitive form, such Global Security shall be cancelled by the Trustee. Definitive Securities issued in exchange for a Global Security pursuant to this Section shall either be in global form, established as contemplated by Sections 2.01 and 3.01, or shall be registered in such names and in such authorized denominations and delivered to the Depositary or to such Persons at such addresses as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee in writing.

          Section 3.06. Mutilated, Destroyed, Lost or Stolen Securities.

          In case any temporary or definitive Security shall become mutilated or be destroyed, lost or stolen, and in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company in the case of a mutilated Security shall, and in the case of a lost, stolen or destroyed Security may in its discretion, execute, and upon a Company Request the Trustee shall authenticate and deliver, or cause to be authenticated and delivered, a new Security of the same series bearing a number, letter or other distinguishing symbol not contemporaneously outstanding, in exchange and substitution for the mutilated Security, or in lieu of and in substitution for the Security so destroyed, lost or stolen, or if any such Security shall have become due and payable or shall be about to become due and payable, instead of issuing a substituted Security, the Company may pay or authorize the payment of the same without surrender thereof (except in the case of a mutilated Security). In every case the applicant for a substituted Security shall surrender the Security to the Trustee, if mutilated, and shall furnish to the Company and to the Trustee such security or indemnity as may be required by them to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company and to the Trustee evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership thereof.

          Upon the issuance of any substituted Security under this Section 3.06, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee and any Authenticating Agent) connected therewith.

          Every substituted Security issued pursuant to the provisions of this Section 3.06 by virtue of the fact that any Security is mutilated, destroyed, lost or stolen shall constitute an additional contractual obligation of the Company, whether or not the mutilated, destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder. All Securities shall be held and owned upon the express condition that the

22


foregoing provisions of this Section 3.06 are exclusive with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities and shall preclude (to the extent lawful) any and all other rights or remedies with respect to the replacement or payment of negotiable instruments or other securities without their surrender.

          Section 3.07. Temporary Securities.

          Pending the preparation of definitive Securities of any series, the Company may execute and the Trustee shall authenticate and deliver, or cause to be authenticated and delivered, temporary Securities of such series (printed, lithographed, typewritten, mimeographed or otherwise produced). Temporary Securities shall be issuable in any authorized denomination and substantially in the form of the definitive Securities in lieu of which they are issued but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined by the Company with the concurrence of the Trustee. Every such temporary Security shall be executed by the Company and shall be authenticated by or on behalf of the Trustee upon the same conditions and in substantially the same manner, and with the same effect, as the definitive Securities in lieu of which they are issued. The Company, without unreasonable delay, will execute and deliver to the Trustee definitive Securities of such series and thereupon any or all temporary Securities of such series may be surrendered in exchange therefor, at any of the offices or agencies of the Company maintained as provided in Section 12.02 hereof for such purpose, and the Trustee shall authenticate and deliver, or cause to be authenticated and delivered, in exchange for such temporary Securities an equal aggregate principal amount of definitive Securities of such series. Such exchange shall be made by the Company at its own expense and without any charge therefor except that in case of any such exchange involving any registration of transfer, the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto. Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series authenticated and delivered hereunder.

          Upon any exchange of a portion of a temporary Global Security for a definitive Global Security or for the individual Securities represented thereby pursuant to this Section 3.07 or Section 3.05 hereof, the temporary Global Security shall be endorsed by the Trustee to reflect the reduction of the principal amount evidenced thereby, whereupon the principal amount of such temporary Global Security shall be reduced for all purposes by the amount so exchanged and endorsed.

          Section 3.08. Payment of Interest; Interest Rights Preserved.

          The Holder at the close of business on any record date with respect to any Interest Payment Date shall be entitled to receive the interest, if any, payable on such Interest Payment Date notwithstanding the cancellation of such Securities upon any transfer or exchange subsequent to the record date and prior to such Interest Payment Date. Except as otherwise specified as contemplated by Section 3.01 hereof for Securities of a particular series, the term “record date” as used in this Section 3.08 with respect to any Interest Payment Date, shall mean the last day of the calendar month preceding such Interest Payment Date if such Interest Payment Date is the fifteenth day of the calendar month, and shall mean the fifteenth day of the calendar

23


month preceding such Interest Payment Date if such Interest Payment Date is the first day of the calendar month, whether or not such day shall be a Business Day.

          If and to the extent the Company shall default in the payment of the interest due on such Interest Payment Date, such defaulted interest (herein called “Defaulted Interest”) shall forthwith cease to be payable to the registered Holder on such record date by virtue of having been such Holder, and such Defaulted Interest shall be paid by the Company, at its election in each case, as provided in clause (a) or (b) below:

 

 

 

          (a)     The Company may make payment of any Defaulted Interest to the Holders at the close of business on a subsequent record date established in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Holders entitled to such Defaulted Interest as in this clause (a) provided. Thereupon the Trustee shall fix a record date for the payment of such Defaulted Interest that shall not be more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such record date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the record date therefor to be mailed, first-class postage prepaid, to each Holder at his address as it appears on the Securities Register, not less than 10 days prior to such record date. Notice of the proposed payment of such Defaulted Interest and the record date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Holders at the close of business on such record date (notwithstanding the cancellation of such Securities upon any transfer or exchange subsequent to such record date and prior to such payment) and shall no longer be payable pursuant to the following clause (b).

 

 

 

          (b)     The Company may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of such series may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause (b), such manner of payment shall be deemed practicable by the Trustee.

           Subject to the foregoing provisions of this Section 3.08, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.

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          Section 3.09. Persons Deemed Owners.

          Prior to the due presentment for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name any Security is registered as the owner of such Security for the purpose of receiving payment of principal of and premium, if any and, subject to Section 3.08 hereof, interest, if any, on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.

          None of the Company, the Trustee, any Paying Agent or the Securities Registrar shall have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests and they shall be protected in acting or refraining from acting on any such information provided by the Depositary.

          Section 3.10. Cancellation.

          All Securities surrendered for the purpose of payment, redemption, exchange or registration of transfer or for credit against any sinking fund shall, if surrendered to the Company or any Paying Agent or any Securities Registrar, be surrendered to the Trustee and promptly cancelled by it, or, if surrendered to the Trustee, shall be promptly cancelled by it, and no Securities shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture. Notwithstanding any other provision of this Indenture to the contrary, in the case of a series all the Securities of which are not to be originally issued at one time, a Security of such series shall not be deemed to have been Outstanding at any time hereunder if and to the extent that, subsequent to the authentication and delivery thereof, such Security is delivered to the Trustee for cancellation by the Company or any agent thereof upon the failure of the original purchaser thereof to make payment therefor against delivery thereof, and any Security so delivered to the Trustee shall be promptly cancelled by it. The Trustee shall dispose of cancelled Securities and deliver a certificate of such disposition to the Company upon its request therefor unless, by a Company Order, the Company directs that such cancelled Securities be returned to it. If the Company shall acquire any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are surrendered to the Trustee for cancellation.

          Section 3.11. Computation of Interest.

          Except as otherwise specified as contemplated by Section 3.01 hereof for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.

          Section 3.12. CUSIP Numbers.

          The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any

25


notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee in writing of any change in the “CUSIP” numbers.

ARTICLE FOUR

REDEMPTION OF SECURITIES

          Section 4.01. Applicability of Article.

          The provisions of this Article shall be applicable to the Securities of any series which are redeemable before their Maturity except as otherwise specified as contemplated by Section 3.01 hereof for Securities of such series.

          Section 4.02. Election to Redeem; Notice to Trustee.

          The election of the Company to redeem any Securities of any series shall be evidenced by or pursuant to authority granted in a Board Resolution. In case of any redemption at the election of the Company of less than all of the Securities of a series, the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee) deliver to the Trustee an Officer’s Certificate notifying the Trustee of such Redemption Date and of the principal amount of Securities of such series to be redeemed and stating that no default in payment of interest or Event of Default has occurred and is continuing with respect to such series.

          Section 4.03. Selection by Trustee of Securities to Be Redeemed.

          If less than all the Securities of any series are to be redeemed, the particular Securities of such series to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem appropriate (which is in compliance with the requirements of any national securities exchange on which such Securities are listed) and which may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Securities of such series or any integral multiple thereof) of the principal of Securities of a denomination greater than the minimum authorized denomination of such series.

          The Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in the case of any Security selected for partial redemption, the principal amount thereof to be redeemed.

          For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.

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          Section 4.04. Notice of Redemption.

          Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities of the series to be redeemed, at his address appearing in the Securities Register. Neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders.

          All notices of redemption shall state:

 

 

 

          (a)     the Redemption Date,

 

 

 

          (b)     the Redemption Price and accrued interest, if any,

 

 

 

          (c)     if less than all Outstanding Securities of such series are to be redeemed, the identification (and, in the case of partial redemption, the respective principal amounts) of the Securities of such series to be redeemed,

 

 

 

          (d)     that on the Redemption Date the Redemption Price, together with accrued interest, if any, to the Redemption Date, will become due and payable upon each such Security, and that interest thereon shall cease to accrue from and after said date,

 

 

 

          (e)     the place where such Securities are to be surrendered for payment of the Redemption Price and accrued interest, if any,

 

 

 

          (f)     that the redemption is for a sinking fund, if that be the case, and

 

 

 

          (g)     applicable CUSIP Numbers.

          Notice of redemption of the Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of the Company, provided, however, in the latter case, the Company shall give the Trustee at least five days prior written notice.

          Section 4.05. Deposit of Redemption Price.

          On or before any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 12.03 hereof) an amount of money (in the currency in which the Securities so called for redemption are payable) sufficient to pay the Redemption Price of, and accrued interest, if any, on, all the Securities or portions thereof which are to be redeemed on that date.

          Section 4.06. Securities Payable on Redemption Date.

          Notice of redemption having been given as aforesaid, the Securities or portions thereof so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, together with accrued interest, if any, to the Redemption Date, and from and

27


after such date (unless the Company shall default in the payment of the Redemption Price and such accrued interest, if any) such Securities or portions thereof shall cease to bear interest. Upon surrender of such Securities for redemption in accordance with said notice, such Securities or specified portions thereof shall be paid by the Company at the Redemption Price, together with any accrued interest to the Redemption Date. Installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities registered as such on the relevant record dates according to their terms and the provisions of Section 3.08 hereof.

          If any Security called for redemption shall not be so paid upon surrender thereof on such Redemption Date, the principal and premium, if any, shall, until paid, bear interest from the Redemption Date at the Overdue Rate for such Security.

          Section 4.07. Securities Redeemed in Part.

          Any Security that is to be redeemed only in part shall be surrendered at the Place of Payment (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing) and the Company shall execute and the Trustee shall authenticate and deliver, or cause to be authenticated and delivered, to the Holder of such Security without service charge, a new Security or Securities of the same series of any authorized denomination as requested by such Holder in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal amount of the Security so surrendered.

ARTICLE FIVE

SINKING FUNDS

          Section 5.01 . Applicability of Article.

          The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 3.01 hereof for Securities of such series.

          The minimum amount of any sinking fund payment provided for by the terms of the Securities of any series is herein referred to as a “mandatory sinking fund payment,” and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional sinking fund payment.”

           Section 5.02. Satisfaction of Mandatory Sinking Fund Payments with Securities.

          In lieu of making all or any part of any mandatory sinking fund payment with respect to any Securities of a series in cash, the Company may at its option (a) deliver to the Trustee Securities of that series theretofore purchased or otherwise acquired by the Company, or (b) receive credit for the principal amount of Securities of that series that have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities; provided , however , that such Securities have not been previously so credited. Such Securities shall be

28


received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such mandatory sinking fund payment shall be reduced accordingly.

          Section 5.03. Redemption of Securities for Sinking Fund.

          Not less than 60 days prior to each sinking fund payment date for any series of the Securities, the Company will deliver to the Trustee a certificate signed by the Treasurer or any Assistant Treasurer of the Company specifying the amount of the next ensuing mandatory sinking fund payment for such series pursuant to the terms of such series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities of such series pursuant to Section 5.02 hereof (which Securities will accompany such certificate if not already delivered for cancellation to and held by the Trustee) and whether the Company intends to exercise its right to make any permitted optional sinking fund payment with respect to such series. Such certificate shall also state that no Event of Default has occurred and is continuing with respect to such series and shall set forth the basis for any credit against the sinking fund. Such certificate shall be irrevocable and upon its delivery the Company shall be obligated to make the cash payment or payments therein referred to, if any, on or before the next succeeding sinking fund payment date. In the case of the failure of the Company to deliver such certificate when due (or to deliver the Securities specified in this Section 5.03) the sinking fund payment due on the next succeeding sinking fund payment date for that series shall be paid entirely in cash and shall be sufficient to redeem the principal amount of such Securities subject to a mandatory sinking fund payment without the option to deliver or credit Securities as provided in Section 5.02 and without the right to make any optional sinking fund payment, if any, with respect to such series.

          Any sinking fund payment or payments (mandatory or optional) with respect to the Securities of any series, which payment or payments are made in cash plus any unused balance of any preceding sinking fund payments with respect to such series made in cash the sum of which shall equal or exceed $100,000 or the equivalent thereof in the Foreign Currency in which such series is denominated (or a lesser sum if the Company shall so request), shall be applied by the Trustee on the sinking fund payment date on which such payment is made (or, if such payment is made before a sinking fund payment date, on the sinking fund payment date following the date of such payment) to the redemption of such Securities at the Redemption Price specified in such Securities for operation of the sinking fund together with accrued interest, if any, to the date fixed for redemption. Any sinking fund moneys not so applied or allocated by the Trustee to the redemption of Securities shall be added to the next cash sinking fund payment received by the Trustee for such series and, together with such payment, shall be applied in accordance with the provisions of this Section 5.03. Any and all sinking fund moneys with respect to the Securities of any particular series held by the Trustee on the last sinking fund payment date with respect to Securities of such series and not held for the payment or redemption of particular Securities shall be applied by the Trustee, together with other moneys, if necessary, to be deposited sufficient for the purpose, to the payment of the principal of the Securities of such series at Maturity.

          The Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in the first paragraph of Section 4.03 hereof and the Company shall

29


cause notice of the redemption thereof to be given in the manner provided in Section 4.04 hereof. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 4.06 and 4.07 hereof.

          On or before any sinking fund payment date, the Company shall deposit with the Trustee an amount of money in the currency in which payment is to be made pursuant to Section 3.01 sufficient to pay any interest accrued to the Redemption Date for Securities or portions thereof to be redeemed on such sinking fund payment date pursuant to this Section 5.03.

          The Trustee shall not redeem any Securities of any series with sinking fund moneys or mail any notice of redemption of such Securities by operation of the sinking fund for such series during the continuance of a default in payment of interest on such Securities or of any Event of Default (other than an Event of Default occurring as a consequence of this Section 5.03) with respect to such Securities, except that if the notice of redemption of any such Securities shall theretofore have been mailed in accordance with the provisions hereof, the Trustee shall redeem such Securities if cash sufficient for that purpose shall be deposited with the Trustee for that purpose in accordance with the terms of this Article. Except as aforesaid, any moneys in the sinking fund for such series at the time when any such default or Event of Default shall occur and any moneys thereafter paid into such sinking fund shall, during the continuance of such default or Event of Default, be held as security for the payment of such Securities; provided , however , that in case such Event of Default or default shall have been cured or waived as provided herein, such moneys shall thereafter be applied on the next sinking fund payment date for such Securities on which such moneys may be applied pursuant to the provisions of this Section 5.03.

ARTICLE SIX

SATISFACTION AND DISCHARGE

           Section 6.01. Satisfaction and Discharge of Indenture.

          This Indenture shall cease to be of further effect with respect to the Securities of any series (except as to the rights of Holders of Outstanding Securities of such series to receive, from the trust funds described in paragraph (a) of this Section 6.01, payment of the principal of, premium, if any, and interest, if any, on such Outstanding Securities on the Stated Maturity of such principal, premium, if any, or installment of interest, if any, the Company’s obligations with respect to such Outstanding Securities of such series under Sections 3.05, 3.06, 6.05 and 12.02 as may be applicable to Outstanding Securities of such series, and the rights, powers, trusts, duties, indemnities and immunities of the Trustee hereunder), and the Trustee for the Securities of such series, on demand of and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect to the Securities of such series, when

 

 

 

 

          (a)     either

 

 

 

 

          (i)     all the Securities of such series theretofore authenticated and delivered (other than (A) Securities of such series that have been mutilated,

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destroyed, lost or stolen and that have been replaced or paid as provided in Section 3.06 hereof and (B) Securities of such series for whose payment money has theretofore been deposited with the Trustee or the Paying Agent for the Securities of such series in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 6.05 and Section 12.03 hereof) have been delivered to such Trustee for cancellation; or

 

 

 

 

 

          (ii)     all Securities of such series not theretofore delivered to such Trustee for cancellation

 

 

 

 

 

 

          (A)   have become due and payable, or

 

 

 

 

 

 

 

          (B)   will become due and payable at their Stated Maturity within one year, or

 

 

 

 

 

 

 

          (C)   are to be called for redemption within one year under arrangements satisfactory to such Trustee for the giving of notice of redemption by such Trustee in the name, and at the expense, of the Company,

 

 

 

 

 

and the Company has deposited or caused to be deposited with such Trustee irrevocably as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of all Outstanding Securities of such series, with reference to this Section 6.01, (i) money in an amount in the currency in which the Securities of such series are denominated or (ii) U.S. Government Obligations in the case of a series of Securities denominated in Dollars or obligations issued or guaranteed by the government that issued the currency in which the Securities of such series are denominated in the case of Securities denominated in Foreign Currencies, which through the payment of interest and principal in respect thereof in accordance with their terms will provide, not later than the opening of business on the due date of any payment referred to below, money in an amount in the currency in which the Securities of such series are denominated or (iii) a combination thereof, in each case sufficient, in the opinion of a nationally recognized firm of independent registered public accountants expressed in a written certification thereof delivered and addressed to the Trustee, to pay and discharge the entire indebtedness on the Outstanding Securities of such series not theretofore delivered to such Trustee for cancellation, for principal (and premium, if any) and interest, if any, to the date of such deposit (in the case of Securities of such series which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;

 

 

 

 

 

          (b)     the Company has paid or caused to be paid all other sums payable hereunder by the Company in connection with Outstanding Securities of such series, including all amounts due to the Trustee under Section 8.07 for such series, and

 

 

 

 

 

          (c)     the Company has delivered to such Trustee an Officer’s Certificate and an Opinion of Counsel each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.

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          Notwithstanding the satisfaction and discharge of this Indenture with respect to the Securities of any series, the obligations of the Company to the Trustee for the Securities of such series under Section 8.07 hereof and with respect to Securities of any other series hereof shall survive such satisfaction and discharge.

           Section 6.02. Satisfaction, Discharge and Defeasance of Securities of any Series.

          Unless this Section 6.02 is specified, as contemplated by Section 3.01 hereof, to be inapplicable to Securities of any series, the Company shall, notwithstanding Section 6.01 hereof, be deemed to have paid and discharged the entire indebtedness on all the Outstanding Securities of any such series from and after the ninety-first day after the date of the deposit referred to in paragraph (a) below, the provisions of this Indenture (except as to the rights of Holders of Outstanding Securities of such series to receive, from the trust funds described in paragraph (a) below, payment of the principal of (and premium, if any) and interest, if any, on such Outstanding Securities on the Stated Maturity of such principal, premium, if any, or installment of interest, if any, the Company’s obligations with respect to such Outstanding Securities of such series under Sections 3.05, 3.06, 6.05 and 12.02 hereof, as may be applicable to Outstanding Securities of such series, and the rights, powers, trusts, duties, indemnities and immunities of the Trustee hereunder) shall no longer be in effect in respect of Outstanding Securities of such series, and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of such indebtedness, provided , however , that the following conditions shall have been satisfied:

 

 

 

          (a)     the Company has deposited or caused to be deposited with the Trustee irrevocably as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of all Outstanding Securities of such series, with reference to this Section 6.02, (i) money in an amount in the currency in which the Securities of such series are denominated or (ii) U.S. Government Obligations in the case of Securities denominated in Dollars or obligations issued or guaranteed by the government that issued the currency in which the Securities are denominated in the case of Securities denominated in Foreign Currencies, which through the payment of interest and principal in respect thereof in accordance with their terms will provide not later than the opening of business on the due date of any payment referred to in this paragraph (a), money in an amount in the currency in which the Securities of such series are denominated, or (iii) a combination thereof, in each case, sufficient, in the opinion of a nationally recognized firm of independent registered public accountants expressed in a written certification thereof delivered and addressed to the Trustee, to pay and discharge the entire indebtedness on all Outstanding Securities of such series for principal and premium, if any, and interest, if any, to the Stated Maturity as such principal and premium, if any, or interest, if any, becomes due and payable in accordance with the terms of this Indenture and the Securities of such series provided , however , that the Company shall not make or cause to be made the deposit provided by this clause (a) unless the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that there will not occur any violation of the Investment Company Act of 1940, as amended, on the part of the Company, the trust funds representing such deposit or the Trustee as a result of such deposit and the related exercise of the Company’s option under this Section 6.02;

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          (b)     the Company has paid or caused to be paid all other sums payable hereunder by the Company in connection with the Outstanding Securities of such series, including all amounts due to the Trustee under Section 8.07 for such series;

 

 

 

          (c)     the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of the entire indebtedness on all Outstanding Securities of such series have been complied with; and

 

 

 

          (d)     the Company has delivered to the Trustee an Opinion of Counsel to the effect that Holders of the Securities of such series will not recognize gain or loss on such Securities for federal income tax purposes solely as a result of such deposit, defeasance and discharge and will be subject to federal income tax in the same amounts and at the same times, as would have been the case if such deposit, defeasance and discharge had not occurred.

 

 

 

Section 6.03. Application of Trust Money.

 

 

 

          (a)     Subject to the provisions of Section 6.05, all money, U.S. Government Obligations and other governmental obligations deposited with the Trustee for the Securities of any series pursuant to Sections 6.01 or 6.02 hereof, and all money received by the Trustee in respect of U.S. Government Obligations and such other government obligations deposited with the Trustee for the Securities of any series pursuant to Section 6.01 or Section 6.02 hereof, shall be held in trust and applied by it, in accordance with the provisions of the Securities of such series and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as such Trustee may determine, to the Persons entitled thereto, of the principal, premium, if any, and interest, if any, on the Securities of such series; but such money need not be segregated from other funds except to the extent required by law.

 

 

 

          (b)     The Trustee shall deliver or pay to the Company from time to time upon Company request any U.S. Government Obligations, other government obligations or money held by it as provided in Sections 6.01 and 6.02 that, in the opinion of a nationally recognized firm of independent registered public accountants expressed in a written certification thereof delivered to the Trustee, are then in excess of the amount thereof that then would have been required to be deposited for the purpose for which such U.S. Government Obligations, other government obligations or money were deposited or received.

 

 

 

Section 6.04. Paying Agent to Repay Moneys Held.

          Upon the satisfaction and discharge of this Indenture all moneys then held by any Paying Agent under the provisions of this Indenture shall, upon demand of the Company, be repaid to it or paid to the appropriate Trustee, and thereupon such Paying Agent shall be released from all further liability with respect to such moneys.

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          Section 6.05. Return of Unclaimed Moneys.

          Any moneys deposited with or paid to the Trustee or any Paying Agent for the Securities of any series or then held by the Company, in trust for the payment of the principal of and premium, if any, or interest, if any, on the Securities of such series and not applied but remaining unclaimed by the Holders of Securities of such series for two years after the date upon which the principal of and premium, if any, or interest, if any, on such Securities, as the case may be, shall have become due and payable, shall, unless otherwise required by mandatory provisions of applicable escheat as abandoned or unclaimed property law, be repaid to the Company by such Trustee or any Paying Agent on demand or (if then held by the Company) shall be discharged from such trust; and the Holder of any such Securities entitled to receive such payment shall thereafter look only to the Company for the payment thereof and the liability of the Trustee or such Paying Agent with respect to such payment and any obligation of the Company to hold moneys in trust for such payment shall thereupon cease; provided , however , that, before any such action shall occur, the Trustee shall have received 20 days’ prior notice thereof, upon receipt of which such Trustee may (at the expense of the Company) cause to be published once a week for two successive weeks, in each case on any day of the week, in an Authorized Newspaper in the same city in which the Place of Payment with respect to Securities of such series shall be located and in an Authorized Newspaper in the Borough of Manhattan, The City of New York, a notice (in such form as may be deemed appropriate by such Trustee) that said moneys remain unclaimed and that, after a date named therein, any unclaimed balance of said moneys then remaining will be returned to the Company.

ARTICLE SEVEN

REMEDIES

          Section 7.01. Events of Default.

          “Event of Default” whenever used herein with respect to Securities of any series means such events as may be established with respect to the Securities of such series as contemplated by Section 3.01 hereof and any one of the following events, continued for the period of time, if any, and after the giving of notice, if any, designated herein or therein, as the case may be, unless the same is either not applicable to such series or is deleted or modified pursuant to the authority granted in the applicable Board Resolution or in the supplemental indenture under which such series of Securities is issued, as the case may be, as contemplated by Section 3.01 hereof:

 

 

 

          (a)     default in the payment of any interest upon any Security of such series when the same becomes due and payable, and continuance of such default for a period of 30 days; or

 

 

 

          (b)     default in the payment of all or any part of the principal of (or premium, if any, on) any Security of such series at its Maturity; or

 

 

 

          (c)     default in the making or satisfaction of any sinking fund payment or analogous obligation when the same becomes due and payable by the terms of the Securities of such series; or

34



 

 

 

          (d)     default in the performance, or breach, of any covenant or warranty of the Company in respect of the Securities of such series contained in this Indenture or in such Securities (other than a covenant or warranty in respect of the Securities of such series a default in whose performance or whose breach is elsewhere in this Section 7.01 specifically dealt with) or established pursuant to the authority granted in the applicable Board Resolution or in the supplemental indenture under which such series of Securities is issued, as the case may be, as contemplated by Section 3.01 hereof, and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee for the Securities of such series, or to the Company and such Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of such series, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or

 

 

 

          (e)     the entry of a decree or order by a court having jurisdiction in the premises adjudging the Company a bankrupt or insolvent, or approving as properly filed, a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under Title 11 of the United States Code as now constituted or hereafter amended (the “Federal Bankruptcy Code”) or any other applicable Federal or State law, or appointing a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or

 

 

 

          (f)     an event of default with respect to any other series of Securities issued or hereafter issued pursuant to this Indenture or as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Debt for money borrowed of the Company in excess of $50,000,000, whether such Debt now exists or shall hereafter be created, shall happen and shall result in such other series of Securities or such Debt, as the case may be, becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such acceleration shall not be rescinded or annulled within a period of 15 days after there has been given, by registered or certified mail, to the Company by the Trustee for such series or to the Company and the Trustee for such series by the Holders of at least 25% in principal amount of the Outstanding Securities of such series, or to the Company and the Trustee by the holders of at least 25% of the outstanding principal amount of such Debt, a written notice specifying such event of default and requiring the Company to cause such acceleration to be rescinded or annulled and stating that such notice is a “Notice of Default” hereunder; provided , however , that, subject to the provisions of Sections 8.01 and 8.02 hereof, such Trustee shall not be charged with knowledge of any such event of default unless a Responsible Officer of such Trustee, in the course of its administration of corporate trusts, shall have such actual knowledge of such event of default, or unless written notice of such event of default shall have been given to such Trustee by the Company, by the Holder or an agent of the Holder of any Securities of such other series or by the holder or an agent of the holder of any such Debt, as the case may be, or by the trustee then acting under this Indenture with respect to such other series of Securities or under any mortgage, indenture or instrument, as the case may

35



 

 

 

be, under which such event of default shall have occurred, or by the Holders of at least 25% in principal amount of the Outstanding Securities of such series; or

 

 

 

          (g)     the institution by the Company of proceedings to be adjudicated a bankrupt or insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under the Federal Bankruptcy Code or any other applicable Federal or State law, or the consent by it to the filing of any such petition or to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action; or

 

 

 

          (h)     any other Event of Default provided in or pursuant to the authority granted in the applicable Board Resolution or in the supplemental indenture under which such series of Securities is issued, as the case may be, as contemplated by Section 3.01 hereof.

          Section 7.02. Acceleration of Maturity; Rescission and Annulment.

          If an Event of Default with respect to Securities of any series at the time Outstanding occurs and is continuing, then and in each and every such case, unless the principal of all of the Securities of such affected series shall have already become due and payable, the Trustee for such affected series or the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of such affected series may declare the principal amount (or, if the Securities of such affected series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of all the Securities of such affected series to be due and payable immediately, by a notice in writing to the Company (and to such Trustee if given by Holders), and upon any such declaration of acceleration the same shall become immediately due and payable, anything in this Indenture or in the Securities of such affected series or any Board Resolution relating thereto contained to the contrary notwithstanding.

          At any time after such a declaration of acceleration has been made and before a judgment or decree for payment of the money due has been obtained or entered as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of such affected series, by written notice to the Company and the Trustee for such affected series, may waive all defaults with respect to such affected Securities and rescind and annul such declaration and its consequences if

 

 

 

 

          (a)     the Company has paid or deposited with the Trustee for the Securities of such affected series a sum sufficient to pay

 

 

 

 

 

          (i)     all overdue installments of interest, if any, on all Securities of such series,

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          (ii)     the principal of (and premium, if any, on) any and all Securities of such series which have become due otherwise than by such declaration of acceleration and interest thereon at the Overdue Rate applicable to such series,

 

 

 

 

 

          (iii)     to the extent that payment of such interest is lawful, interest upon any overdue installment of interest at the Overdue Rate applicable to such series,

 

 

 

 

 

          (iv)     all sums paid or advanced by such Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel and any other amounts due such Trustee under Section 8.07 hereof; and

 

 

 

 

          (b)     all Events of Default with respect to such affected series of Securities, other than the non-payment of the principal of Securities which have become due solely by such acceleration, have been cured or waived as provided in Section 7.13 hereof.

          No such waiver and rescission shall affect any subsequent default or impair any right consequent thereon.

          Section 7.03. Collection of Indebtedness and Suits for Enforcement by Trustee.

          The Company covenants that if

 

 

 

          (a)     default is made in the payment of any installment of interest on any Security of any series when such interest becomes due and payable and such default continues for a period of 30 days,

 

 

 

          (b)     default is made in the payment of all or any part of the principal of (or premium, if any, on) any Security of any series at the Maturity thereof, or

 

 

 

          (c)     default is made in the making or satisfaction of any sinking fund payment or analogous obligation when the same becomes due pursuant to the terms of the Securities of any series,

the Company will, upon demand of the Trustee for the Securities of such affected series, pay to such Trustee, for the benefit of the Holder of any such Security (or Holders of any such affected series of Securities in the case of clause (c) above), the whole amount then due and payable on any such Security (or Securities of any such affected series in the case of clause (c) above) for principal (and premium, if any) and interest, if any, with interest upon the overdue principal (and premium, if any) and, to the extent that payment of such interest shall be legally enforceable, upon any overdue installment of interest, at the Overdue Rate of any such Security (or Securities of any such affected series in the case of clause (c) above); and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel and any other amounts due such Trustee under Section 8.07 hereof;

          If the Company fails to pay such amounts forthwith upon such demand, the Trustee for the Securities of such affected series, in its own name and as trustee of an express trust, may

37


institute a judicial proceeding for the collection of the sums so due and unpaid, and may prosecute such proceeding to judgment or final decrees, and may enforce the same against the Company or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated.

          If an Event of Default occurs and is continuing, the Trustee for the Securities of such affected series may in its discretion proceed to protect and enforce its rights and the rights of the Holders of the Securities of such series by such appropriate judicial proceedings as such Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.

          Section 7.04. Trustee May File Proofs of Claim.

          The Trustee for the Securities of any series (irrespective of whether the principal of the Securities of such series shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether such Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise, in case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities of such series or the property of the Company or of such other obligor or their creditors,

 

 

 

          (i)     to file and prove a claim or claims for the whole amount of principal (or, if the Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be due and payable with respect to such series pursuant to a declaration in accordance with Section 7.02 hereof), premium, if any, and interest, if any, owing and unpaid in respect of the Securities of such series and to file such other papers or documents as may be necessary or advisable in order to have the claims of such Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel and any other amounts due such Trustee under Section 8.07 hereof) and of the Holders of the Securities of such series allowed in such judicial proceeding, and

 

 

 

          (ii)    to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;

and any receiver, assignee, trustee, liquidator, sequestrator (or other similar official) in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee for such series, and in the event that such Trustee shall consent to the making of such payments directly to the Holders, to pay to such Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel, and any other amounts due such Trustee under Section 8.07 hereof.

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          Nothing herein contained shall be deemed to authorize any Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities of any series or the rights of any Holder thereof, or to authorize any Trustee to vote in respect of the claim of any Holder in any such proceeding.

          Section 7.05. Trustee May Enforce Claims without Possession of Securities.

          All rights of action and claims under this Indenture or the Securities of any series may be prosecuted and enforced by the Trustee for the Securities of such series without the possession of any of the Securities of such series or the production thereof in any proceeding relating thereto, and any such proceeding instituted by such Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel and any other amounts due such Trustee under Section 8.07 hereof, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.

          Section 7.06. Application of Money Collected.

          Any moneys collected by the Trustee for the Securities of any series pursuant to this Article shall be applied in the following order, at the date or dates fixed by such Trustee and, in case of the distribution of such money on account of principal (or premium, if any) or interest, if any, upon presentation of the several Securities with respect to which such moneys were collected, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:

 

 

 

          FIRST: To the payment of all amounts due such Trustee under Section 8.07 hereof;

 

 

 

          SECOND: To the payment of the amounts then due and unpaid upon such Securities for principal (and premium, if any) and interest, if any, in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal (and premium, if any) and interest, if any, respectively;

 

 

 

          THIRD: The balance, if any, to the Company.

          Section 7.07. Limitation on Suits.

          No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee (or other similar official), or for any other remedy hereunder, unless

 

 

 

          1)     an Event of Default with respect to such series of Securities shall have occurred and be continuing and such Holder previously shall have given to the Trustee for the Securities of such affected series written notice of default with respect to the Securities of such series and of the continuance thereof;

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          2)     the Holders of not less than 25% in principal amount of the Outstanding Securities of such affected series shall have made written request to such Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;

 

 

 

          3)     such Holder or Holders have offered to such Trustee indemnity reasonably satisfactory to it against the costs, expenses and liabilities to be incurred in compliance with such request;

 

 

 

          4)     such Trustee for 60 days after receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and

 

 

 

          5)     no direction inconsistent with such written request has been given to such Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of such affected series;

it being understood and intended that no one or more Holders of Securities of such affected series shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders of Securities of such affected series, or to obtain or to seek to obtain priority or preference over any other such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all the Holders of the Securities of such affected series.

          Section 7.08. Unconditional Right of Holders to Receive Principal, Premium and Interest.

          Notwithstanding any other provision of this Indenture, the Holder of a Security of any series shall have the right which is absolute and unconditional to receive payment of the principal of (and premium, if any) and (subject to Section 3.08 hereof) interest, if any, on such Security on the respective Stated Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.

           Section 7.09. Restoration of Rights and Remedies.

          If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case the Company, the Trustee and such Holder shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee and such Holder shall continue as though no such proceeding had been instituted.

           Section 7.10. Rights and Remedies Cumulative.

          No right or remedy herein conferred upon or reserved to the Trustee for the Securities of any series or to the Holders of such Securities is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in

40


addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

          Section 7.11. Delay or Omission Not Waiver.

          No delay or omission of the Trustee for the Securities of any series or of the Holders of such Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to such Trustee or to such Holders may be exercised from time to time, and as often as may be deemed expedient, by such Trustee or by such Holders, as the case may be.

          Section 7.12. Control by Holders.

          The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee for the Securities of such series or exercising any trust or power conferred on such Trustee; provided , however , that

 

 

 

          (a)     such direction shall not be in conflict with any rule of law or with this Indenture, unduly prejudice the rights of Holders or involve the Trustee in personal liability, and

 

 

 

          (b)     such Trustee may take any other action deemed proper by such Trustee that is not inconsistent with such direction.

 

 

 

Section 7.13. Waiver of Past Defaults.

 

 

          The Holders of not less than a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default hereunder and its consequences, except a default

 

 

 

          (a)     in the payment of the principal of (or premium, if any) or interest, if any, on any Security of such series, or in the payment of any sinking fund installment or analogous obligation with respect to the Securities of such series, or

 

 

 

          (b)     in respect of a covenant or provision hereof that under Article Eleven hereof cannot be modified or amended without the consent of the Holder of each Outstanding Security affected.

          Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.

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          Section 7.14. Undertaking for Costs.

          All parties to this Indenture agree, and each Holder of a Security of any series by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for the Securities of any series for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 7.14 shall not apply to any suit instituted by such Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or interest, if any, on any Security on or after the respective Stated Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date).

          Section 7.15. Waiver of Stay or Extension Laws.

          The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee for the Securities of any series, but will suffer and permit the execution of every such power as though no such law had been enacted.

ARTICLE EIGHT

THE TRUSTEE

           Section 8.01. Certain Duties and Responsibilities.

 

 

 

 

          (a)     Except during the continuance of an Event of Default with respect to a series of Securities,

 

 

 

 

 

          (i)     the Trustee for such series of Securities shall undertake to perform with respect to the Securities of such series such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against such Trustee; and

 

 

 

 

 

          (ii)    in the absence of bad faith on its part, the Trustee for such series may conclusively, with respect to the Securities of such series, rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to such Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to such

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Trustee, such Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).

 

 

 

 

          (b)     In case an Event of Default has with respect to the Securities of a series occurred and is continuing, the Trustee for the Securities of such series shall, with respect to the Securities of such series, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.

 

 

 

          (c)     No provision of this Indenture shall be construed to relieve a Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that

 

 

 

 

          (i)    this Subsection shall not be construed to limit the effect of Subsection (a) of this Section 8.01;

 

 

 

 

 

          (ii)   the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;

 

 

 

 

 

          (iii)   the Trustee for the Securities of any series shall not be liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities of such series pursuant to Section 7.12 hereof relating to the time, method and place of conducting any proceeding for any remedy available to such Trustee, or exercising any trust or power conferred upon such Trustee, under this Indenture; and

 

 

 

 

 

          (iv)   no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.

 

 

 

 

          (d)     Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 8.01.

          Section 8.02. Notice of Defaults.

          Within 90 days after the occurrence of any default hereunder with respect to the Securities of any series which is known to a Responsible Officer of the Trustee of such series or of which such Trustee has been given written notice, the Trustee for such series shall transmit by mail to all Holders of the Securities of such series, as their names and addresses appear in the Securities Register, notice of such default hereunder with respect to such series known to such Trustee, unless such default shall have been cured or waived; provided , however , that, except in

43


the case of a default in the payment of principal of (or premium, if any) or interest, if any, on any Security of such series, or in the payment of any sinking fund installment, redemption or analogous obligation, such Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of such Trustee in good faith determine that the withholding of such notice is in the interest of such Holders; and provided , further , that in the case of any default of the character specified in Section 7.01 (d) hereof no such notice to Holders shall be given until at least 30 days after the occurrence thereof. For the purpose of this Section 8.02, the term “ default ” means any event that is, or after notice or lapse of time or both would become, an Event of Default.

          Section 8.03. Certain Rights of Trustee.

          Except as otherwise provided in Section 8.01 hereof:

 

 

 

          (a)     the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, coupon or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;

 

 

 

          (b)     any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Company Request or a Company Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;

 

 

 

          (c)     whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate;

 

 

 

          (d)     the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith in reliance thereon;

 

 

 

          (e)     the Trustee for the Securities of any series shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Holders of the Securities of such series pursuant to this Indenture, unless such Holders shall have offered reasonable indemnity or provided reasonable security to such Trustee, reasonably satisfactory to such Trustee, against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction;

 

 

 

          (f)     the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further

44



 

 

 

inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the expense of the Company and shall incur no liability of any kind by reason of such inquiry or investigation;

 

 

 

          (g)     the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;

 

 

 

          (h)     except with respect to Section 12.01, the Trustee shall have no duty to inquire as to the performance of the Company with respect to covenants contained in Article 12. In addition, the Trustee shall not be deemed to have knowledge of an Event of Default except (i) any default or Event of Default occurring pursuant to Sections 12.01, 7.01(a) or 7.01(b) or (ii) any default or Event of Default of which the Trustee shall have received written notification or obtained actual knowledge;

 

 

 

          (i)     delivery of reports, information and documents to the Trustee under Section 9.04 is for informational purposes only and the Trustee’s receipt of the foregoing shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of their covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates);

 

 

 

          (j)     in no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action; and

 

 

 

          (k)     the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.

          Section 8.04. Not Responsible for Recitals or Issuance of Securities.

          The recitals contained herein and in the Securities, except the certificates of authentication, shall be taken as the statements of the Company, and the Trustee and any Authenticating Agent assume no responsibility for their correctness. The Trustee and any Authenticating Agent make no representations as to the validity or sufficiency of this Indenture or of the Securities. The Trustee and any Authenticating Agent shall not be accountable for the use or application by the Company of Securities or the proceeds thereof.

          Section 8.05. May Hold Securities.

          The Trustee, any Paying Agent, Securities Registrar, any Authenticating Agent or any other agent of the Company or the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities of any series and, subject to Section 8.08 and Section 8.13

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hereof, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Paying Agent, Securities Registrar, Authenticating Agent or such other agent.

          Section 8.06. Money Held in Trust.

          Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company.

           Section 8.07. Compensation and Reimbursement.

          The Company agrees

 

 

 

          (a)     to pay to the Trustee for the Securities of any series from time to time reasonable compensation for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);

 

 

 

          (b)     except as otherwise expressly provided herein, to reimburse the Trustee for the Securities of any series upon its request for all reasonable expenses, disbursements and advances incurred or made by such Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel and of any Authenticating Agent), except any such expense, disbursement or advance as shall be attributable to its own negligence or bad faith; and

 

 

 

          (c)     to indemnify the Trustee for the Securities of any series and its employees or agents for, and to hold them harmless against, any loss, claim, damage, liability or expense incurred without negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of this trust and performance of their duties hereunder, including the costs and expenses (including fees and disbursements of their counsel) of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties hereunder.

          As security for the performance of the obligations of the Company under this Section 8.07, the Trustee for the Securities of any series shall have a lien prior to the Securities of all series upon all property and funds held or collected by such Trustee as such, except funds held in trust for the payment of principal of (and premium, if any) or interest, if any, on the particular Securities of any series. The provisions of this Section 8.07 shall survive any Trustee succession and the satisfaction and discharge of this Indenture. “Trustee” for purposes of this Section 8.07 shall include any predecessor trustee but the negligence and bad faith of any Trustee shall not affect the rights of any other Trustee under this Section 8.07. Article Thirteen shall not affect the Trustee’s rights against the Company under this Section 8.07.

          Section 8.08. Disqualification; Conflicting Interests.

          The Trustee shall comply with Section 310(b) of the Trust Indenture Act; provided , however , that there shall be excluded from the operation of Section 310(b)(i) of the Trust Indenture Act any indenture or indentures under which other securities or certificates of interest

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or participation in other securities of the Company are outstanding if the requirements for such exclusion set forth in Section 310(b)(i) of the Trust Indenture Act are met.

          Section 8.09. Corporate Trustee Required; Different Trustees for Different Series; Eligibility.

          There shall at all times be a Trustee hereunder for the Securities of each series that shall be a corporation organized and doing business under the laws of the United States of America or of any State or the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000, subject to supervision or examination by Federal or State authority, and having a corporate trust office in the Borough of Manhattan, The City of New York, the State of New York, or in such other city as shall be specified as contemplated by Section 3.01 hereof with respect to any series of Securities, provided , however , that there is a corporation in any such city that is willing to act as Trustee upon reasonable and customary terms. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section 8.09, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. A different Trustee may be appointed by the Company for each series of Securities prior to the issuance of such Securities. If the initial Trustee for any series of Securities is to be other than The Bank of New York, the Company and such Trustee shall, prior to the issuance of such Securities, execute and deliver an indenture supplemental hereto, which shall provide for the appointment of such Trustee as Trustee for the Securities of such series and shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee. If at any time the Trustee for the Securities of any series shall cease to be eligible in accordance with the provisions of this Section 8.09, it shall resign immediately in the manner and with the effect hereinafter specified in this Article Eight.

           Section 8.10. Resignation and Removal; Appointment of Successor.

 

 

 

          (a)     No resignation or removal of the Trustee for the Securities of any series and no appointment of a successor Trustee for the Securities of such series pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee under Section 8.11 hereof.

 

 

 

          (b)     The Trustee, or any trustee or trustees hereafter appointed for the Securities of any series may resign at any time with respect to one or more or all such series of the Securities by giving written notice thereof to the Company. If an instrument of acceptance by a successor Trustee for the Securities of any series shall not have been delivered to the Trustee for such series within thirty days after the giving of such notice of resignation, the resigning Trustee may petition at the expense of the Company any court of competent jurisdiction for the appointment of a successor Trustee for such series.

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          (c)     The Trustee for the Securities of any series may be removed at any time with respect to one or more or all such series by Act of the Holders of a majority in aggregate principal amount of the Outstanding Securities of such one or more series (each voting as a class) delivered to such Trustee and to the Company.

 

 

 

 

          (d)     If at any time:

 

 

 

 

 

          (i)     the Trustee for the Securities of any series shall fail to comply with Section 310(b) of the Trust Indenture Act with respect to the Securities of such series after written request therefor by the Company or by any Holder of Securities of such series who has been a bona fide Holder of a Security of such series for at least six months, or

 

 

 

 

 

          (ii)    such Trustee shall cease to be eligible under Section 8.09 hereof and shall fail to resign after written request therefor by the Company or by any such Holder of Securities, or

 

 

 

 

 

          (iii)   such Trustee shall become incapable of acting with respect to the Securities of such series or shall be adjudged a bankrupt or insolvent or a receiver of such Trustee or of its property shall be appointed or any public officer shall take charge or control of such Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,

then, in any such case, (1) the Company by a Board Resolution may remove the Trustee, or (2) subject to Section 7.14 hereof, any Holder of a Security of such series who has been a bona fide Holder of such Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of such Trustee and the appointment of a successor Trustee for such series.

 

 

 

           (e)     If the Trustee for the Securities of any series shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for the Securities of any series for any cause, the Company, by a resolution of the Board of Directors, shall promptly appoint a successor Trustee for the Securities of such series. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee for the Securities of such series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee for such series and supersede the successor Trustee appointed by the Company. If no successor Trustee for the Securities of such series shall have been so appointed by the Company or such Holders and accepted appointment in the manner hereinafter provided, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee for the Securities of such series.

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          (f)     The Company shall give notice of each resignation and each removal of the Trustee for the Securities of any series and each appointment of a successor Trustee for the Securities of such series by mailing written notice of such event by first-class mail, postage prepaid, to the Holders of the Securities of such series as their names and addresses appear in the Securities Register. Each notice shall include the name of such successor Trustee and the address of its Corporate Trust Office.

          Section 8.11. Acceptance of Appointment by Successor.

          Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee, and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder, subject nevertheless to its lien, if any, provided for in Section 8.07 hereof. Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts.

          In case of the appointment hereunder of a successor Trustee for the Securities of one or more (but not all) series, the Company, the predecessor Trustee and each successor Trustee for the Securities of any applicable series shall execute and deliver an indenture supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor Trustee for the Securities of any series as to which the predecessor Trustee is not retiring shall continue to be vested in the predecessor Trustee, and shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee; it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee.

          No successor Trustee for the Securities of any series shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified under Section 310(b) of the Trust Indenture Act and eligible under Section 8.09.

          Section 8.12. Merger, Conversion, Consolidation or Succession to Business.

          Any corporation into which the Trustee for the Securities of any series may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of such Trustee, shall be the successor of the Trustee for such series hereunder, provided , however , that such corporation shall be, with respect to such series, otherwise qualified and eligible under this Article, without the

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execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities of any series shall have been authenticated, but not delivered, by the Trustee for such series or an Authenticating Agent for such series, then in office, any successor by merger, conversion or consolidation to such authenticating Trustee or Authenticating Agent, as the case may be, may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee or successor Authenticating Agent had itself authenticated such Securities.

          Section 8.13. Preferential Collection of Claims against Company.

          The Trustee shall comply with Section 311(a) of the Trust Indenture Act with respect to each series of Securities for which it is Trustee.

          Section 8.14. Authenticating Agent.

          The Trustee for a series of securities may appoint an Authenticating Agent for such series that shall be acceptable to the Company, to act on behalf of such Trustee and subject to its direction in connection with the authentication of the Securities of such series. Each Authenticating Agent shall at all times be a corporation organized and doing business under the laws of the United States of America or of any State or the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000, and subject to supervision or examination by Federal or State authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section 8.14 the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.

          Securities of any series authenticated by the Authenticating Agent for the Securities of such series shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee for the Securities of such series. Whenever reference is made in this Indenture to the authentication and delivery of Securities of any series by the Trustee for the Securities of such series or such Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of such Trustee by the Authenticating Agent for such series and a certificate of authentication executed on behalf of such Trustee by such Authenticating Agent.

          Any corporation into which any Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which any Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency business of any Authenticating Agent, shall continue to be the Authenticating Agent with respect to the Securities of all series for which it served as Authenticating Agent without the execution or filing of any paper or any further act on the part of the Trustee for the Securities of such series or such Authenticating Agent.

          Any Authenticating Agent may at any time resign by giving written notice of resignation to the applicable Trustee and to the Company. The Trustee for the Securities of any series may at any time terminate the agency of any Authenticating Agent for such series by giving written

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notice of termination to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time any Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 8.14, with respect to the Securities of one or more or all series, the Trustee for such series may appoint a successor Authenticating Agent that shall be acceptable to the Company, and upon doing so shall give written notice of such appointment to the Company and shall mail notice of such appointment to all Holders of the Securities of such series as the names and addresses of such Holders appear upon the Securities Register. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers, duties and responsibilities of its predecessor hereunder with like effect as if originally appointed as Authenticating Agent hereunder. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section 8.14.

          The Trustee for the Securities of each series agrees to pay to the Authenticating Agent for the Securities of such series from time to time reasonable compensation for its services, and each such Trustee shall be entitled to be reimbursed for such payments subject to the provisions of Section 8.07 hereof.

ARTICLE NINE

HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY

          Section 9.01. Company to Furnish Trustee Names and Addresses of Holders.

          The Company will furnish or cause to be furnished to the Trustee for the Securities of each series (a) semi-annually, on a date not more than 15 days after each regular record date with respect to an Interest Payment Date, if any, for the Securities of such series, and (b) on semi-annual dates in each year to be determined pursuant to Section 3.01 hereof if the Securities of such series do not bear interest and (c) at such other times as such Trustee may request in writing, within 30 days after receipt by the Company of any such request, a list in such form as such Trustee may reasonably require containing all the information in the possession or control of the Company, or any of its Paying Agents other than such Trustee, as to the names and addresses of the Holders of the Securities of such series, obtained since the date as of which the next previous list, if any, was furnished. Any such list may be dated as of a date not more than 15 days prior to the time such information is furnished or caused to be furnished and need not include information received after such date; provided , however , that as long as such Trustee is the Securities Registrar for such series, no such list shall be required to be furnished.

          Section 9.02. Preservation of Information; Communications to Holders.

 

 

 

          (a)     The Trustee for the Securities of each series shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders of the Securities of such series contained in the most recent list furnished to such Trustee as provided in Section 9.01 hereof or in the Securities Register if such Trustee be the Securities Registrar for such series and the names and addresses of Holders received by such Trustee in its capacity as Paying Agent for such series. Such Trustee may destroy any list furnished to it as provided in Section 9.01 hereof upon receipt of a new list so furnished.

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          (b)     If three or more Holders of the Securities of any series (hereinafter referred to as “ applicants ”) apply in writing to the Trustee for such series or the Trustee for any other series, furnish to such Trustee reasonable proof that each such applicant has owned a Security of a series for a period of at least six months preceding the date of such application, and such application states that the applicants desire to communicate with other Holders of any series with respect to their rights under this Indenture or under the Securities of any series and is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then such Trustee shall, within five Business Days after the receipt of such application, at its election, either

 

 

 

 

          (i)     afford such applicants access to the information preserved at the time by such Trustee in accordance with Subsection (a) of this Section 9.02, or

 

 

 

 

 

          (ii)     inform such applicants as to the approximate number of such Holders whose names and addresses appear in the information preserved at the time by such Trustee in accordance with Subsection (a) of this Section 9.02, and as to the approximate cost of mailing to such Holders the form of proxy or other communication, if any, specified in such application.

 

 

 

          If such Trustee shall elect not to afford such applicants access to such information, such Trustee shall upon the written request of such applicants, mail to each Holder to whom the applicant desires to communicate whose name and address appear in the information preserved at the time by such Trustee in accordance with Subsection (a) of this Section 9.02, a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to such Trustee of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing, unless within five days after such tender, such Trustee shall mail to such applicants and file with the Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of such Trustee, such mailing would be contrary to the best interests of such Holders or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. If the Commission, after opportunity for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any of such objections or if, after the entry of an order sustaining one or more of such objections, the Commission shall find, after notice and opportunity for hearing, that all the objections so sustained have been met and shall enter an order so declaring, such Trustee shall mail copies of such material to all such Holders with reasonable promptness after the entry of such order and the renewal of such tender, otherwise such Trustee shall be relieved of any obligation or duty to such applicants respecting their application.

 

 

 

          (c)     Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee, nor any agent of the Company or the Trustee, shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders in accordance with Subsection (b) of this Section 9.02, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under Subsection (b) of this Section 9.02.

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          Section 9.03. Reports by Trustee.

          Within 60 days after the first May 15 that occurs not less than 60 days following the first date of issuance of the Securities of any series under this Indenture and within 60 days after May 15 in every year thereafter, the Trustee for the Securities of such series shall transmit by mail to all Holders of such series, as their names and addresses appear in the Securities Register, a brief report dated as of such May 15 required by, and in compliance with the provisions of, Section 313(a) of the Trust Indenture Act and at such other times in such manner such other reports as may be required by Section 313 of the Trust Indenture Act in each case with respect to the Securities of such series. A copy of each such report shall, at the time of such transmission to such Holders, be filed by such Trustee with each stock exchange upon which such Securities are listed and also with the Commission. The Company will notify such Trustee when such Securities are listed on any stock exchange.

          Section 9.04. Reports by Company.

          The Company will

 

 

 

          (a)     file with the Trustee for the Securities of each series, within 15 days after the Company is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) that the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not required to file information, documents or reports pursuant to either of said Sections, then it will file with such Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports that may be required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations;

 

 

 

          (b)     file with such Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations; and

 

 

 

          (c)     transmit by mail to all Holders, as their names and addresses appear in the Securities Register, within 30 days after the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company pursuant to paragraphs (a) and (b) of this Section 9.04 as may be required by rules and regulations prescribed from time to time by the Commission.

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ARTICLE TEN

CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

          Section 10.01. Company May Consolidate, etc., Only on Certain Terms .

          The Company shall not consolidate with or merge into any other Person or convey, transfer or lease all or substantially all of its properties and assets to any Person or group of Persons and the Company shall not permit any Person to consolidate with or merge into the Company or convey, transfer or lease all or substantially all of its properties and assets to the Company, unless:

 

 

 

          1)     in case the Company shall consolidate with or merge into another Person or convey, transfer or lease all or substantially all of its properties and assets to any Person, the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance, transfer or lease, all or substantially all of the properties and assets of the Company, shall be a corporation, partnership or trust organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of (and premium, if any) and interest on all the Securities and the performance of every covenant of this Indenture on the part of the Company to be performed or observed;

 

 

 

          2)     immediately after giving effect to such transaction, and treating any indebtedness which becomes an obligation of the Company or a Subsidiary as a result of such transaction as having been incurred by the Company or such Subsidiary at the time of such transaction, no Event of Default, and no event that, after notice or lapse of time, or both, would become an Event of Default, shall have occurred and be continuing; and

 

 

 

          3)     the Company has delivered to such Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.

          The provisions of this Section 10.01 shall not be applicable to a merger or consolidation in which the Company is the surviving corporation.

          Section 10.02. Successor Corporation Substituted .

          Upon any consolidation by the Company with or merger by the Company into any other Person or any conveyance, transfer or lease of all or substantially all of the properties and assets of the Company in accordance with Section 10.01, the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been

54


named as the Company herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities.

ARTICLE ELEVEN

SUPPLEMENTAL INDENTURES

          Section 11.01. Supplemental Indentures without Consent of Holders .

          Without the consent of any Holders, the Company, when authorized by or pursuant to the authority granted in a resolution of its Board of Directors, and the Trustee for the Securities of any or all series, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to such Trustee, for any of the following purposes:

 

 

 

          (a)     to evidence the succession of another corporation to the Company, and the assumption by any such successor of the covenants of the Company herein and in the Securities contained: or

 

 

 

          (b)     to add to or modify the covenants or Events of Default of the Company, for the benefit of the Holders of the Securities of any or all series, to convey, transfer, assign, mortgage or pledge any property to or with such Trustee or to surrender any right or power herein conferred upon the Company, and to modify or eliminate any of the provisions of this Indenture, provided that any such modification or elimination shall become effective only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision; or

 

 

 

          (c)     to establish the form or terms of the Securities of any series as permitted by Section 2.01 or Section 3.01 hereof; or

 

 

 

          (d)     to add to or change any of the provisions of this Indenture as is necessary or advisable to facilitate the issuance of Securities of any series in bearer form, registrable or nonregistrable as to principal and with or without interest coupons, and to provide for exchangeability of such Securities with the Securities of the same series issued hereunder in fully registered form and to make all appropriate changes for such purpose, or to permit or facilitate the issuance of Securities in uncertificated form; or

 

 

 

          (e)     to cure any ambiguity, to correct or supplement any provision herein that may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture that shall not adversely affect the interests of the Holders in any material respect; or

 

 

 

          (f)     to add to or change any of the provisions of this Indenture to provide that bearer Securities may be registrable as to principal, to change or eliminate any restrictions on the payment of principal of, or premium, if any, or interest on bearer Securities or on the delivery of bearer Securities, or to permit bearer Securities to be issued in exchange for bearer Securities of other authorized denominations, provided any such action shall not adversely affect the interests of the Holders of bearer Securities of

55



 

 

 

any series or any related coupons in any material respect unless such amendment is required to comply with the Bearer Rules; or

 

 

 

          (g)     to evidence and provide for the acceptance of appointment hereunder of a Trustee other than The Bank of New York, as Trustee for a series of Securities and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 8.09 hereof;

 

 

 

          (h)     to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series or to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 8.11 hereof;

 

 

 

          (i)     to evidence any changes to Section 8.10 permitted by the terms thereof;

 

 

 

          (j)     to add to or modify the provisions hereof as may be necessary or desirable to provide for the denomination of Securities in Foreign Currencies that shall not adversely affect the interests of the Holders of the Securities in any material respect;

 

 

 

          (k)     to supplement any of the provisions of this Indenture to such extent as is necessary to permit or facilitate the defeasance and discharge of any series of Securities pursuant to Section 6.01 or 6.02, provided , however , that any such action shall not adversely affect the interests of the Holders of Securities of such series or any other series of Securities in any material respect;

 

 

 

          (l)     to add to, change or eliminate any of the provisions of this Indenture; provided , that any such addition, change or elimination (i) shall become effective only when no Security of any series entitled to the benefits of such provision and issued prior to the execution of such supplemental indenture is outstanding or (ii) shall not apply to any outstanding Security;

 

 

 

          (m)       to add to or change or eliminate any provision of this Indenture as shall be necessary or desirable in accordance with any amendments to the Trust Indenture Act, provided such action shall not adversely affect the interests of the holders of the Securities of any series or any appurtenant coupons in any material respects; or

 

 

 

          (n)     to prohibit the authentication and delivery of additional series of Securities.

          Section 11.02. Supplemental Indentures with Consent of Holders.

          Subject to Sections 7.12 and 7.13 hereof, with the consent of the Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of each series affected thereby, by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or

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eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of the Securities of such series under this Indenture; provided , however , that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,

 

 

 

          (a)     change the Stated Maturity of the principal of, or any installment of interest on, any Security, or reduce the principal amount thereof or the interest thereon, or any premium payable on the redemption thereof, or change the Place of Payment, or the coin or currency in which any Security or the interest, if any, thereon is payable, or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon an acceleration of the Maturity thereof or adversely affect the right of repayment, if any, at the option of the Holder, or reduce the amount of, or postpone the date fixed for, any payment under the sinking fund for any Security, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or

 

 

 

          (b)     reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or

 

 

 

          (c)     modify any of the provisions of this Section 11.02 or Section 7.13 hereof, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Security affected thereby, or

 

 

 

          (d)     subordinate the indebtedness evidenced by the Securities to any other indebtedness of the Company.

          A supplemental indenture that changes or eliminates any covenant or other provision of this Indenture that has been expressly included solely for the benefit of the Securities of one or more particular series, or that modifies the rights of the Holders of the Securities of one or more such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of the Securities of any other series.

          It shall not be necessary for any Act of Holders under this Section 11.02 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.

          Section 11.03. Execution of Supplemental Indentures.

          In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article Eleven or the modifications thereby of the trusts created by this Indenture, the Trustee for the Securities of any series shall be provided with, and (subject to Section 8.01 hereof) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. Such

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Trustee may, but shall not be obligated to, enter into any such supplemental indenture that affects such Trustee’s own rights, liabilities, duties or immunities under this Indenture or otherwise.

          Section 11.04. Notice of Supplemental Indenture .

          Promptly after the execution by the Company and the appropriate Trustee of any supplemental indenture pursuant to Section 11.02 hereof, the Company shall transmit by mail to all Holders of any series of the Securities affected thereby, as their names and addresses appear in the Securities Register, a notice setting forth in general terms the substance of such supplemental indenture.

          Section 11.05. Effect of Supplemental Indentures.

          Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith but only with respect to the Securities of each series affected by such supplemental indenture, and such supplemental indenture shall form a part of this Indenture for all purposes with respect to such series; and every Holder of Securities of any such series theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.

          Section 11.06. Conformity with Trust Indenture Act.

          Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect.

          Section 11.07. Reference in Securities to Supplemental Indentures.

          Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee for the Securities of such series, bear a notation in form approved by such Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities so modified as to conform, in the opinion of such Trustee and the Board of Directors, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by or on behalf of such Trustee in exchange for Outstanding Securities of the same series.

ARTICLE TWELVE

COVENANTS

          Section 12.01. Payment of Principal, Premium and Interest.

          The Company will duly and punctually pay the principal of, premium, if any, and interest, if any, on the Securities of each series in accordance with the terms of such Securities established as contemplated by Section 3.01 of this Indenture.

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          Section 12.02 . Maintenance of Office or Agency.

          The Company will maintain, in each Place of Payment for any series of Securities, an office or agency where Securities of any series may be presented or surrendered for payment, where Securities of such series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of such series and this Indenture may be served; provided , however , that at the option of the Company payment of interest may be made (subject to collection) by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register. With respect to the Securities of any series, such office or agency and each Place of Payment shall be as specified as contemplated by Section 3.01. In the absence of any such provisions with respect to Securities of any series, (i) the Place of Payment for such Securities shall be in the city in which the Corporate Trust Office of the Trustee for such series shall be located and (ii) such office or agency in such Place of Payment shall initially be the Corporate Trust Office of such Trustee for such series. The Company will give prompt written notice to the Trustee of any change in the location of any such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee for the Securities of each series with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of such Trustee, and the Company hereby appoints such Trustee for such series of Securities its agent to receive all such presentations, surrenders, notices and demands with respect to the Securities of such series.

          The Company may also from time to time designate one or more other offices or agencies (in or outside the Place of Payment) where the Securities of one or more series may be presented or surrendered for any or all of such purposes specified above, and may from time to time rescind such designation; provided , however , that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for such purposes.

          Section 12.03. Money for Securities Payments to Be Held in Trust.

          If the Company shall at any time act as its own Paying Agent, it will, on or before each due date of the principal of (and premium, if any) or interest, if any, on, any of the Securities of any series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal (and premium, if any) or interest, if any, so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and will promptly notify the Trustee of such series of its failure so to act.

          Whenever the Company shall have one or more Paying Agents, it will, on or before each due date of the principal of (and premium, if any) or interest, if any, on, any Securities of any series, deposit with a Paying Agent for such series a sum sufficient to pay the principal (and premium, if any) or interest, if any, so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal (and premium, if any), or interest, if any, and (unless such Paying Agent is the Trustee for such series) the Company will promptly notify such Trustee at its Corporate Trust Office of its failure so to act.

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          The Company will cause each Paying Agent for the Securities of any series other than the Trustee for such series to execute and deliver to such Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section 12.03, that such Paying Agent will

 

 

 

          (a)     hold all sums held by it for the payment of the principal of, premium, if any, or interest, if any, on the Securities of such series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;

 

 

 

          (b)     give such Trustee notice of any default by the Company (or any other obligor upon the Securities of such series) in the making of any payment of principal, premium, if any, or interest, if any; and

 

 

 

          (c)     at any time during the continuance of any such default, upon the written request of such Trustee, forthwith pay to such Trustee all sums so held in trust by such Paying Agent.

          The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture with respect to Securities of any series or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee for the Securities of the appropriate series all sums held in trust by the Company or such Paying Agent, such sums to be held by such Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to such Trustee, such Paying Agent shall be released from all further liability with respect to such money.

          Section 12.04. Payment of Taxes and Other Claims.

          The Company will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (a) all taxes, assessments and governmental charges levied or imposed upon the Company or upon the income, profits or property of the Company, and (b) all lawful claims for labor, materials and supplies which, if unpaid, might by law become a lien upon the property of the Company; provided , however , that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings.

          Section 12.05. Statement as to Compliance.

          The Company will file with the Trustee within four months after the close of each fiscal year (which, until the Company shall otherwise notify the Trustee, shall be deemed to be the calendar year) a brief certificate, which need not comply with Section 1.02 hereof, from the principal executive, financial or accounting officer of the Company as to his or her knowledge of the Company’s compliance with all conditions and covenants under this Indenture (without regard to any period of grace or requirement of notice provided in this Indenture).

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          Section 12.06. Corporate Existence.

          Subject to Article Ten hereof, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, rights (charter and statutory) and franchises; provided , however , that the Company shall not be required to preserve any such right or franchise if the Company shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and that the loss thereof is not disadvantageous in any material respect to the Holders of the Securities of any series.

          Section 12.07. Permit No Vacancy in Office of Trustee .

          The Company, whenever necessary to avoid or fill a vacancy in the office of the Trustee for the Securities of any series, will appoint, in the manner provided in Section 8.10 hereof, a Trustee for the Securities of such series, so that there shall at all times be a Trustee for the Securities of every series hereunder.

          Section 12.08. Other Instruments and Acts.

          The Company will, as necessary or upon the request of the Trustee for the Securities of any series, execute and deliver such further instruments and do such further acts as may reasonably be necessary or proper to carry out more effectually the purposes of this Indenture.

          Section 12.09. Waiver.

          Without limitation of the rights of the Holders and the Company with respect to waivers and amendments set forth in Sections 7.13 and 11.02, the Company may omit in any particular instance to comply with a covenant or provision hereof which non-compliance could constitute a default hereunder (other than (i) a covenant or provision with respect to the payment of the principal of (or premium, if any) or interest, if any, on any Security of any series, or in payment of any sinking fund installment or analogous obligation with respect to the Securities of such series or (ii) a covenant or condition which under Article Eleven hereof cannot be modified or amended without the consent of the Holder of each Outstanding Security affected), if before or after the time for such compliance the Holders of at least a majority in principal amount of the Securities at the time Outstanding of any series affected by the omission shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or provision except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee of each such series in respect of any such covenant or provision shall remain in full force and effect.

ARTICLE THIRTEEN

SUBORDINATION OF SECURITIES

          Section 13.01. Securities Subordinate to Senior Indebtedness.

          The Company for itself, its successors and assigns, covenants and agrees, and each Holder of Securities issued, whether upon original issue or upon transfer or assignment thereof,

61


by his acceptance thereof likewise covenants and agrees, that the payment of principal of and premium, if any, and interest on each and all Securities is hereby expressly subordinated, to the extent and in the manner hereinafter in this Article set forth, in right of payment to the prior payment in full of all Senior Indebtedness.

          Section 13.02. Payments to Securityholders.

 

 

 

          (a)     Upon (i) any acceleration of the principal amount due on the Securities of any series or (ii) any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to creditors upon any dissolution or winding-up or total or partial liquidation or reorganization of the Company, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, all principal, premium, if any, and interest, if any, due upon all Senior Indebtedness shall first be paid in full, or payment thereof provided for in money or money’s worth in accordance with its terms, before any payment is made on account of the principal of, premium, if any, or interest on the indebtedness evidenced by the Securities, and upon any such dissolution or winding-up or liquidation or reorganization, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to which the Holders of the Securities of any series under the terms of this Indenture would be entitled, except for the provisions hereof, shall (subject to the power of a court of competent jurisdiction to make other equitable provision reflecting the rights conferred by the provisions hereof upon the Senior Indebtedness and the holders thereof with respect to the Securities and the Holders thereof by a lawful plan of reorganization under applicable bankruptcy law), be paid by the Company or any receiver, trustee in bankruptcy, liquidating trustee, agent or other person making such payment or distribution, or by the Holders of the securities if received by them, directly to the holders of Senior Indebtedness (pro rata to each such holder on the basis of the respective amounts of Senior Indebtedness held by such holder) or their representatives, to the extent necessary to pay all Senior Indebtedness (including interest thereon) in full in money or money’s worth in accordance with its terms, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness, before any payment or distribution is made to the Holders of the indebtedness evidenced by the Securities. The consolidation of the Company with, or a merger of the Company into, another Person or the liquidation or dissolution of the Company following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another Person upon the terms and conditions provided in Section 10.01 hereof shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 13.02(a).

 

 

 

          (b)     In the event that any payment or distribution of assets of the Company of any kind or character not permitted by Section 13.02(a), whether in cash, property or securities, shall be received by the Trustee or the Holders of Securities before all Senior Indebtedness is paid in full, or provision made for such payment, in accordance with its terms upon written notice to the Trustee or, as the case may be, such Holder, such payment or distribution shall be held in trust for the benefit of, and shall be paid over or delivered to, the holders of such Senior Indebtedness or their representative or representatives, or to the Trustee or trustees under any indenture pursuant to which any

62



 

 

 

instruments evidencing any of such Senior Indebtedness may have been issued, as their respective interest may appear, for application to the Payment of all Senior Indebtedness remaining unpaid to the extent necessary to pay all such Senior Indebtedness in full in accordance with its terms, after giving effect to any concurrent payment or distribution to holders of such Senior Indebtedness. Nothing in this Article shall apply to claims of, or payment to, the Trustee under or pursuant to Section 8.07. In addition, nothing in this Article shall prevent the company form making or the Trustee form receiving or applying any payment in connection with the redemption of Securities of a series if the first publication of notice of such redemption (whether by mail or otherwise in accordance with this Indenture) has been made, and the Trustee has received such payment from the Company, prior to the occurrence of any of the contingencies specified in this Section 13.02.

 

 

 

          (c)     No payment on account of principal of, premium, if any, sinking funds or interest on the Securities of any series shall be made unless full payment of amounts then due for principal, premium, if any, sinking funds and interest on any Senior Indebtedness has been made or duly provided for in money or money’s worth in accordance with the terms of such Senior Indebtedness. No payment on account of principal, premium, if any, sinking funds or interest on the Securities shall be made if, at the time of such payment or immediately after giving effect thereto, (i) there shall exist a default in the payment of principal, premium, if any, sinking fund or interest with respect to any Senior Indebtedness, or (ii) there shall have occurred an event of default (other than a default in the payment of principal, premium, if any, sinking funds or interest) with respect to any Senior Indebtedness, as defined therein or in the instrument under which the same is Outstanding, permitting the holders thereof to accelerate the maturity thereof and upon written notice thereof given to the Trustee, with a copy to the Company (the delivery of which shall not affect the validity of the notice to the Trustee), and such event of default shall not have been cured or waived or shall not have ceased to exist, provided , however , that if the holders of the Senior Indebtedness to which the default relates have not declared such Senior Indebtedness to be immediately due and payable and within 180 days after the occurrence of such default (or have declared such Senior Indebtedness to be immediately due and payable and within such period have rescinded such declaration of acceleration), then the Company shall resume making any and all required payments in respect of the Securities (including any missed payments). Only one payment blockage period under the immediately preceding sentence may be commenced within any consecutive 365-day period with respect to the Securities of any series. No event of default which existed or was continuing on the date of the commencement of any 180-day payment blockage period with respect to the Senior Indebtedness initiating such payment blockage period shall be, or be made, the basis for the commencement of a second payment blockage period by a Holder or representative of such Senior Indebtedness whether or not within a period of 365 consecutive days unless such event of default shall have been cured or waived for a period of not less than 90 consecutive days (and, in the case of any such waiver, no payment shall be made by the Company to the holders of Senior Indebtedness in connection with such waiver other than amounts due pursuant to the terms of the Senior Indebtedness as in effect at the time of such default).

          Section 13.03. Subrogation to Rights of Holders of Senior Indebtedness.

63


          From and after the payment in full of all Senior Indebtedness, the Holders of the Securities (together with the holders of any other indebtedness of the Company which is subordinate in right of payment to the payment in full of all Senior Indebtedness, which is not subordinate in right of payment to the Securities and which by its terms grants such right of subrogation to the holder thereof) shall be subrogated to the rights of the holders of Senior Indebtedness to receive payments or distributions of assets or securities of the Company applicable to the Senior Indebtedness until the Securities shall be paid in full, and, for the purposes of such subrogation, no such payments or distributions to the holders of Senior Indebtedness of assets or securities, which otherwise would have been payable or distributable to Holders of the Securities, shall, as between the Company, its creditors other than the holders of Senior Indebtedness, and the Holders of the Securities, be deemed to be a payment by the Company to or on account of the Senior Indebtedness, it being understood that the provisions of this Article are and are intended solely for the purpose of defining the relative rights of the Holders of the Securities, on the one hand, and the holders of the Senior Indebtedness, on the other hand, and nothing contained in this Article is intended to or shall impair as between the Company, its creditors other than the holders of Senior Indebtedness, and the Holders of the Securities, the obligation of the Company, which is unconditional and absolute, to pay to the Holders of the Securities the principal of, premium, if any, and interest, if any, on the Securities as and when the same shall become due and payable in accordance with their terms, or to affect the relative rights of the Holders of the Securities and creditors of the Company other than the holders of the Senior Indebtedness, nor shall anything herein or therein prevent the Trustee or the Holder of a Security of any series from exercising all remedies otherwise permitted by applicable law upon default hereunder with respect to the Securities of such series subject to the rights of the holders of Senior Indebtedness, under Section 13.02, to receive cash, property or securities of the Company otherwise payable or deliverable to the Trustee or the Holders of the Securities or to a representative of such Holders, on their behalf.

          Upon any distribution or payment in connection with any proceedings or sale referred to in Section 13.02(a), the Trustee and each Holder of the Securities then Outstanding, shall be entitled to rely upon a certificate of the liquidating trustee or agent or other Person making any distribution or payment to the Trustee or such Holder for the purpose of ascertaining the holders of Senior Indebtedness entitled to participate in such payment or distribution, the amount of such Senior Indebtedness or the amount payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article.

          Section 13.04. No Impairment of Subordination.

          Nothing contained in this Article or elsewhere, in this Indenture or the Securities of any series shall prevent at any time the Company from making payments at any time of principal of or premium, if any, or interest on the Securities, except under the conditions described in Section 13.02 or during the pendency of any proceedings or sale therein referred to.

          Section 13.05. Trustee to Effectuate Subordination.

          Each Holder of a Security by his acceptance thereof, whether upon original issue or upon transfer or assignment, authorizes and directs the Trustee on his behalf to take such action as

64


may be necessary or appropriate to effectuate the subordination provisions in this Article and appoints the Trustee his attorney-in-fact for any and all such purposes.

          No rights of any present or future holder of any Senior Indebtedness to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Trustee or any Holder of the Securities then Outstanding, or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by any such holder, with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof which any such holder may have or otherwise be charged with.

          Without in any way limiting the generality of the foregoing paragraph, the holders of Senior Indebtedness may, at any time and from time to time, without the consent of or notice to the Holders of the Securities, without incurring responsibility to the Holders of the Securities and without impairing or releasing the subordination provided in this Article or the obligations of the Holders of the Securities to the holders of Senior Indebtedness, do any one or more of the following: (i) change the manner, place or terms of payment of, or renew or alter, Senior Indebtedness, or otherwise amend or supplement in any manner Senior Indebtedness of any instrument evidencing the same or any agreement under which Senior Indebtedness is outstanding; (ii) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing Senior Indebtedness; (iii) release any Person liable in any manner for the collection of Senior Indebtedness; and (iv) exercise or refrain from exercising any rights against the Company and any other Person.

          Section 13.06. Notice to Trustee.

          The Company shall give prompt written notice to the Trustee in the form of an Officers’ Certificate of any fact known to the Company which would prohibit the making of any payment of money to or by the Trustee in respect of the Securities pursuant to the provisions of this Article. Notwithstanding the provisions of this Article or any other provisions of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts which would prohibit the making of any payment to or by the Trustee in respect of the Securities pursuant to the provisions of this Article, unless and until the Trustee shall have received at its Corporate Trust Office written notice thereof from the Company or a holder or holders of Senior Indebtedness or from any trustee therefor at least two Business Days prior to such payment date; and, prior to the receipt of any such written notice, the Trustee, shall be entitled in all respects to assume that no such facts exist.

          The Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Indebtedness (or a trustee on behalf of such holder) to establish that such notice has been given by a holder of Senior Indebtedness or a trustee on behalf of any such holder. In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Article, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under the Article, and, if such evidence is not furnished, the Trustee may defer any

65


payment to such Person pending judicial determination as to the right of such Person to receive such payment.

          Section 13.07. Reliance on Certificate of Liquidating Agent.

          Upon any payment or distribution referred to in this Article, the Trustee, and the Holders of the Securities shall be entitled to rely upon any order or decree entered by any court of competent jurisdiction in which a dissolution, winding up or total or partial liquidation or reorganization of the Company is pending, or a certificate of the trustee in bankruptcy, liquidating trustee, custodian, receiver, assignee for the benefit of creditors, agent or other Person making such payment or distribution, delivered to the Trustee or to the Holders of the Securities, for the purpose of ascertaining the Persons entitled to participate in such distribution, the holders of the Senior Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article.

          Section 13.08. Trustee Not Fiduciary for Holders of Senior Indebtedness.

          The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and shall not be liable to any such holders if it shall in good faith mistakenly pay over or distribute to Holders of the Securities of any series or to the Company or to any other Person cash, property or securities to which any holders of Senior Indebtedness shall be entitled by virtue of this Article or otherwise,

          Section 13.09. Rights of Trustee as Holder of Senior Indebtedness.

          The Trustee in its individual capacity shall be entitled to all the rights set forth in this Article with respect to any Senior Indebtedness which may at any time be held by it, to the same extent as any other holder of Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of its rights as such holder.

          Section 13.10. Article Applicable to Paying Agent.

          In case at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term “Trustee” as used in this Article shall in such case (unless the context shall otherwise require) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named in this Article in addition to or in place of the Trustee; provided , however , that this Section shall not apply to the Company or any Affiliate of the Company if it or such Affiliate acts as Paying Agent.

66


          IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed all as of the day and year first above written.

 

 

 

 

AMERICAN EXPRESS COMPANY

 

 

 

By: 

(SIGNATURE)

 

 

 

 

 

Title: Treasurer

 

 

 

THE BANK OF NEW YORK, as Trustee

 

 

 

 

By: 

 

 

 

 

 

 

Title:

Signature Page to the
Subordinated Indenture


          IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed all as of the day and year first above written.

 

 

 

 

AMERICAN EXPRESS COMPANY

 

 

 

By:

 

 

 

 

 

 

Title: Treasurer

 

 

 

THE BANK OF NEW YORK, as Trustee

 

 

 

 

By: 

(SIGNATURE)

 

 

 

 

 

Title: Assistant Vice President

Signature Page to the
Subordinated Indenture


Exhibit 4(k)

 

 

AMERICAN EXPRESS COMPANY

AND

THE BANK OF NEW YORK,

Trustee

 

 

Senior Indenture

 

 

Dated as of August 1, 2007

 

 




AMERICAN EXPRESS COMPANY
Indenture Dated as of August 1, 2007

 

 

CROSS REFERENCE SHEET 1

          Showing the Location in the Indenture of the Provisions Inserted Pursuant to Sections 310 to 318(a) inclusive of the Trust Indenture Act of 1939.

 

 

 

 

 

Provisions of
Trust Indenture Act
of 1939

 

Indenture Provision

 

 

 

 

 

 

§ 310(a)

(1), (2)

 

 

§ 8.09

 

(3)

 

 

Not Applicable

 

(4)

 

 

Not Applicable

(b)

 

 

 

§ 8.08; § 8.10

(c)

 

 

 

Not Applicable

§ 311(a)

 

 

 

§ 8.13(a)

(b)

 

 

 

§ 8.13(b)

(b)

(2)

 

 

§ 9.03 (a)(ii); § 9.03(b)

(c)

 

 

 

Not Applicable

§ 312(a)

 

 

 

§ 9.01; § 9.02(a)

(b)

 

 

 

§ 9.02(b)

(c)

 

 

 

§ 9.02(c)

§ 313(a)

 

 

 

§ 9.03(a)

(b)

(1)

 

 

Not Applicable

 

(2)

 

 

§ 9.03(b)

(c)

 

 

 

§ 9.03(a); § 9.03(b)

(d)

 

 

 

§ 9.03(c)

§ 314(a)

 

 

 

§ 9.04

(b)

 

 

 

Not Applicable

(c)

 

 

 

§ 1.02

(d)

 

 

 

Not Applicable

(e)

 

 

 

§ 1.02

(f)

 

 

 

Not Applicable

§ 315(a)

(1)

 

 

§ 8.01(a)(i)

 

(2)

 

 

§ 8.01(a)(ii)

(b)

 

 

 

§ 8.02

(c)

 

 

 

§ 8.01(b)

(d)

(1)

 

 

§ 8.01(a)

 

(2)

 

 

§ 8.01(c)(ii)

 

(3)

 

 

§ 8.01(c)(iii)

(e)

 

 

 

§ 7.14

§ 316(a)

 

 

 

§ 7.12; § 7.13

(b)

 

 

 

§ 7.08

(c)

 

 

 

§ 1.04

§ 317(a)

(1), (2)

 

 

§ 7.03; § 7.04

(b)

 

 

 

§ 12.03

§ 318(a)

 

 

 

§ 1.08


 

 

1 This Cross-Reference Sheet is not part of the Indenture.

i


TABLE OF CONTENTS

 

 

 

 

 

 

 

 

 

Page

 

 

 

 

 

 

 

 

 

 

ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

 

Section 1.01.

 

Definitions

 

1

 

 

 

 

 

Section 1.02.

 

Compliance Certificates and Opinions

 

7

 

 

 

 

 

Section 1.03.

 

Form of Documents Delivered to Trustee

 

8

 

 

 

 

 

Section 1.04.

 

Act of Holders

 

9

 

 

 

 

 

Section 1.05.

 

Notices, etc., to Trustee and Company

 

9

 

 

 

 

 

Section 1.06.

 

Notice to Holders; Waiver

 

10

 

 

 

 

 

Section 1.07.

 

Immunity of Incorporators; Stockholders, Officers and Directors

 

10

 

 

 

 

 

Section 1.08.

 

Conflict with Trust Indenture Act

 

10

 

 

 

 

 

Section 1.09.

 

Effect of Headings and Table of Contents

 

11

 

 

 

 

 

Section 1.10.

 

Successors and Assigns

 

11

 

 

 

 

 

Section 1.11.

 

Separability Clause

 

11

 

 

 

 

 

Section 1.12.

 

Benefits of Indenture

 

11

 

 

 

 

 

Section 1.13.

 

Governing Law

 

11

 

 

 

 

 

Section 1.14.

 

Cross References

 

11

 

 

 

 

 

Section 1.15.

 

Counterparts

 

11

 

 

 

 

 

Section 1.16.

 

Legal Holidays

 

11

 

 

 

 

 

Section 1.17.

 

Securities in Foreign Currencies

 

12

 

 

 

 

 

Section 1.18.

 

Force Majeure

 

12

 

 

 

 

 

 

 

 

 

 

ARTICLE TWO
SECURITY FORMS

 

Section 2.01.

 

Forms Generally

 

12

 

 

 

 

 

Section 2.02.

 

Form of Certificate of Authentication

 

13

 

 

 

 

 

Section 2.03.

 

Securities in Global Form

 

13

 

 

 

 

 

ARTICLE THREE
THE SECURITIES

 

Section 3.01.

 

Amount Unlimited; Issuable in Series

 

14

 

 

 

 

 

Section 3.02.

 

Denominations

 

17

 

 

 

 

 

Section 3.03.

 

Authentication and Dating

 

17

ii


TABLE OF CONTENTS
(continued)

 

 

 

 

 

 

 

 

 

Page

 

 

 

 

 

Section 3.04.

 

Execution of Securities

 

19

 

 

 

 

 

Section 3.05.

 

Exchange and Registration of Transfer of Securities

 

20

 

 

 

 

 

Section 3.06.

 

Mutilated, Destroyed, Lost or Stolen Securities

 

22

 

 

 

 

 

Section 3.07.

 

Temporary Securities

 

23

 

 

 

 

 

Section 3.08.

 

Payment of Interest; Interest Rights Preserved

 

23

 

 

 

 

 

Section 3.09.

 

Persons Deemed Owners

 

25

 

 

 

 

 

Section 3.10.

 

Cancellation

 

25

 

 

 

 

 

Section 3.11.

 

Computation of Interest

 

25

 

 

 

 

 

Section 3.12.

 

CUSIP Numbers

 

25

 

 

 

 

 

ARTICLE FOUR
REDEMPTION OF SECURITIES

 

Section 4.01.

 

Applicability of Article

 

26

 

 

 

 

 

Section 4.02.

 

Election to Redeem; Notice to Trustee

 

26

 

 

 

 

 

Section 4.03.

 

Selection by Trustee of Securities to Be Redeemed

 

26

 

 

 

 

 

Section 4.04.

 

Notice of Redemption

 

27

 

 

 

 

 

Section 4.05.

 

Deposit of Redemption Price

 

27

 

 

 

 

 

Section 4.06.

 

Securities Payable on Redemption Date

 

27

 

 

 

 

 

Section 4.07.

 

Securities Redeemed in Part

 

28

 

 

 

 

 

ARTICLE FIVE
SINKING FUNDS

 

Section 5.01.

 

Applicability of Article

 

28

 

 

 

 

 

Section 5.02.

 

Satisfaction of Mandatory Sinking Fund Payments with Securities

 

28

 

 

 

 

 

Section 5.03.

 

Redemption of Securities for Sinking Fund

 

29

 

 

 

 

 

ARTICLE SIX
SATISFACTION AND DISCHARGE

 

Section 6.01.

 

Satisfaction and Discharge of Indenture

 

30

 

 

 

 

 

Section 6.02.

 

Satisfaction, Discharge and Defeasance of Securities of any Series

 

32

 

 

 

 

 

Section 6.03.

 

Application of Trust Money

 

33

 

 

 

 

 

Section 6.04.

 

Paying Agent to Repay Moneys Held

 

33

 

 

 

 

 

Section 6.05.

 

Return of Unclaimed Moneys

 

34

iii


TABLE OF CONTENTS
(continued)

 

 

 

 

 

 

 

 

 

Page

 

 

 

 

 

ARTICLE SEVEN
REMEDIES

 

Section 7.01.

 

Events of Default

 

34

 

 

 

 

 

Section 7.02.

 

Acceleration of Maturity; Rescission and Annulment

 

36

 

 

 

 

 

Section 7.03.

 

Collection of Indebtedness and Suits for Enforcement by Trustee

 

37

 

 

 

 

 

Section 7.04.

 

Trustee May File Proofs of Claim

 

38

 

 

 

 

 

Section 7.05.

 

Trustee May Enforce Claims without Possession of Securities

 

39

 

 

 

 

 

Section 7.06.

 

Application of Money Collected

 

39

 

 

 

 

 

Section 7.07.

 

Limitation on Suits

 

39

 

 

 

 

 

Section 7.08.

 

Unconditional Right of Holders to Receive Principal, Premium and Interest

 

40

 

 

 

 

 

Section 7.09.

 

Restoration of Rights and Remedies

 

40

 

 

 

 

 

Section 7.10.

 

Rights and Remedies Cumulative

 

40

 

 

 

 

 

Section 7.11.

 

Delay or Omission Not Waiver

 

41

 

 

 

 

 

Section 7.12.

 

Control by Holders

 

41

 

 

 

 

 

Section 7.13.

 

Waiver of Past Defaults

 

41

 

 

 

 

 

Section 7.14.

 

Undertaking for Costs

 

42

 

 

 

 

 

Section 7.15.

 

Waiver of Stay or Extension Laws

 

42

 

 

 

 

 

ARTICLE EIGHT
THE TRUSTEE

 

Section 8.01.

 

Certain Duties and Responsibilities

 

42

 

 

 

 

 

Section 8.02.

 

Notice of Defaults

 

43

 

 

 

 

 

Section 8.03.

 

Certain Rights of Trustee

 

44

 

 

 

 

 

Section 8.04.

 

Not Responsible for Recitals or Issuance of Securities

 

45

 

 

 

 

 

Section 8.05.

 

May Hold Securities

 

45

 

 

 

 

 

Section 8.06.

 

Money Held in Trust

 

46

 

 

 

 

 

Section 8.07.

 

Compensation and Reimbursement

 

46

 

 

 

 

 

Section 8.08.

 

Disqualification; Conflicting Interests

 

46

 

 

 

 

 

Section 8.09.

 

Corporate Trustee Required; Different Trustees for Different Series; Eligibility

 

47

 

 

 

 

 

Section 8.10.

 

Resignation and Removal; Appointment of Successor

 

47

iv


TABLE OF CONTENTS
(continued)

 

 

 

 

 

 

 

 

 

Page

 

 

 

 

 

Section 8.11.

 

Acceptance of Appointment by Successor

 

49

 

 

 

 

 

Section 8.12.

 

Merger, Conversion, Consolidation or Succession to Business

 

49

 

 

 

 

 

Section 8.13.

 

Preferential Collection of Claims against Company

 

50

 

 

 

 

 

Section 8.14.

 

Authenticating Agent

 

50

 

 

 

 

 

 

 

 

 

 

ARTICLE NINE
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY

 

Section 9.01.

 

Company to Furnish Trustee Names and Addresses of Holders

 

51

 

 

 

 

 

Section 9.02.

 

Preservation of Information; Communications to Holders

 

51

 

 

 

 

 

Section 9.03.

 

Reports by Trustee

 

53

 

 

 

 

 

Section 9.04.

 

Reports by Company

 

53

 

 

 

 

 

ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

 

Section 10.01.

 

Company May Consolidate, etc., Only on Certain Terms

 

54

 

 

 

 

 

Section 10.02.

 

Successor Corporation Substituted

 

54

 

 

 

 

 

ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES

 

Section 11.01.

 

Supplemental Indentures without Consent of Holders

 

55

 

 

 

 

 

Section 11.02.

 

Supplemental Indentures with Consent of Holders

 

56

 

 

 

 

 

Section 11.03.

 

Execution of Supplemental Indentures

 

57

 

 

 

 

 

Section 11.04.

 

Notice of Supplemental Indenture

 

58

 

 

 

 

 

Section 11.05.

 

Effect of Supplemental Indentures

 

58

 

 

 

 

 

Section 11.06.

 

Conformity with Trust Indenture Act

 

58

 

 

 

 

 

Section 11.07.

 

Reference in Securities to Supplemental Indentures

 

58

 

 

 

 

 

ARTICLE TWELVE
COVENANTS

 

Section 12.01.

 

Payment of Principal, Premium and Interest

 

58

 

 

 

 

 

Section 12.02.

 

Maintenance of Office or Agency

 

59

 

 

 

 

 

Section 12.03.

 

Money for Securities Payments to Be Held in Trust

 

59

 

 

 

 

 

Section 12.04.

 

Payment of Taxes and Other Claims

 

60

 

 

 

 

 

Section 12.05.

 

Statement as to Compliance

 

60

 

 

 

 

 

Section 12.06.

 

Corporate Existence

 

61

v


TABLE OF CONTENTS
(continued)

 

 

 

 

 

 

 

 

 

Page

 

 

 

 

 

Section 12.07.

 

Restrictions on the Creation of Mortgages and Liens

 

61

 

 

 

 

 

Section 12.08.

 

Permit No Vacancy in Office of Trustee

 

63

 

 

 

 

 

Section 12.09.

 

Other Instruments and Acts

 

63

 

 

 

 

 

Section 12.10.

 

Waiver

 

63

vi


          INDENTURE, dated as of August 1, 2007, between AMERICAN EXPRESS COMPANY, a New York corporation, having its principal office at 200 Vesey Street, New York, New York 10285 (the “Company”), and The Bank of New York, a New York banking corporation, having its corporate trust office at 101 Barclay Street, New York, New York 10286, as trustee hereunder (the “Trustee”).

RECITALS OF THE COMPANY

          The Company is authorized to borrow money for its corporate purposes and to issue debentures, notes or other evidences of unsecured indebtedness therefor; and for its corporate purposes, the Company has determined to make and issue its debentures, notes or other evidences of unsecured indebtedness to be issued in one or more series (the “Securities”), as hereinafter provided, up to such principal amount or amounts as may from time to time be authorized by or pursuant to the authority granted in one or more resolutions of the Board of Directors.

          All things necessary to make this Indenture a valid and legally binding agreement of the Company, in accordance with its terms, have been done.

          NOW, THEREFORE, THIS INDENTURE WITNESSETH:

          That, in consideration of the premises and of the mutual covenants herein contained and of the purchase and acceptance of the Securities by the holders thereof and of the sum of One Dollar to the Company duly paid by the Trustee at or before the ensealing and delivery of these presents, and for other valuable considerations, the receipt whereof is hereby acknowledged, and in order to declare the terms and conditions upon which the Securities are to be issued, IT IS HEREBY COVENANTED, DECLARED AND AGREED, by and between the parties hereto, that all the Securities are to be executed, authenticated and delivered subject to the further covenants and conditions hereinafter set forth; and the Company, for itself and its successors, does hereby covenant and agree to and with the Trustee and its successors in said trust, for the benefit of those who shall hold the Securities, or any of them, as follows:

ARTICLE ONE

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

          Section 1.01 . Definitions.

          For all purposes of this Indenture, of all indentures supplemental hereto and all Securities issued hereunder except as otherwise expressly provided or unless the context otherwise requires: (a) the terms defined in this Article shall have the meanings assigned to them in this Article, and include the plural as well as the singular; (b) all terms used in this Indenture, in any indenture supplemental hereto or in any such Securities that are defined in the Trust Indenture Act shall have the meanings assigned to them in said Act; and (c) all accounting terms not otherwise defined herein or in such Securities shall have the meanings assigned to them in accordance with generally accepted accounting principles in effect at the date of computation.

1


          Certain terms used in Article Eight hereof are defined in that Article.

          “ Act ” when used with respect to any Holder has the meaning specified in Section 1.04 hereof.

          “ Affiliate ” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “ control ” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “ controlling ” and “ controlled ” have meanings correlative to the foregoing.

          “ Authenticating Agent: ” See Section 8.14 hereof.

          “ Authorized Newspaper ” means a newspaper of general circulation in the same city in which the Place of Payment with respect to Securities of a series shall be located or in the Borough of Manhattan, The City of New York, printed in the English language and customarily published on each Business Day, whether or not published on Saturdays, Sundays or holidays. Whenever successive weekly publications in an Authorized Newspaper are required hereunder, they may be made (unless otherwise expressly provided herein) on the same or different days of the week and in the same or in different Authorized Newspapers.

          “ Bearer Rules ” means the provisions of the Internal Revenue Code, in effect from time to time, governing the treatment of bearer obligations and any regulations thereunder including, to the extent applicable to any series of Securities, proposed or temporary regulations.

          “ Board of Directors ” means either the board of directors of the Company or any committee of that board duly authorized to act hereunder or any directors and/or officers of the Company to whom that board or committee shall have delegated its authority.

          “ Board Resolution ” means a copy of a resolution or resolutions certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.

          “ Business Day ” means, subject to modification hereof by any Board Resolution or supplemental indenture provided for by Section 3.01, (i) when used with respect to any payment, each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in the Place of Payment with respect to such payment are authorized or required by law or executive order to close and (ii) when used for any other purpose, each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in the Borough of Manhattan, The City of New York, or in the city in which the Corporate Trust Office of the Trustee is located are authorized or required by law or executive order to close.

          “ Certificate of Authentication: ” See Section 2.02.

          “ Commission ” means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or if at any time after the execution of this

2


Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.

          “ Company ” means the corporation named as the “ Company ” in the first paragraph of this instrument until a successor corporation shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “ Company ” shall mean each such successor corporation.

          “ Company Consent, ” “ Company Order ” and “ Company Request ” mean, respectively, a written consent, order or request signed in the name of the Company by any one of its Officers and delivered to the Trustee.

          “ Corporate Trust Office ” means the principal office of the Trustee at which at any particular time its corporate trust business shall be principally administered, which office of The Bank of New York, at the date of the execution of this Indenture, is located at 101 Barclay Street, New York, New York 10286, Attn: Corporate Trust Administration.

          “ corporation ” means a corporation, association, company or business trust.

          “ Debt ” of any Person at any date means all obligations which in accordance with generally accepted accounting principles would be included in determining total liabilities as shown on the liabilities side of the balance sheet of such Person at such date. Such term shall include all obligations of such Person guaranteeing any Debt of any third Person (any such obligation being herein called a “ Guarantee ”).

          “ Defaulted Interest: ” See Section 3.08 hereof.

          “ Depositary ” when used with respect to the Securities of any series issuable or issued, in whole or in part, in the form of a Global Security, means the Person designated as Depositary by the Company pursuant to Section 3.01 until a successor Depositary shall have been designated pursuant to the applicable provisions of this Indenture, and thereafter “Depositary” shall mean or include each Person who is then a Depositary hereunder, and if at any time there is more than one such Person, “Depositary” as used with respect to the Securities of any such series shall mean the Depositary with respect to the Securities of that series.

          “ Dollars ” and the sign ‘ $ ’mean the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.

          “ Exchange Act ” means the Securities Exchange Act of 1934, as amended.

          “ Event of Default: ” See Section 7.01 hereof.

          “ Federal Bankruptcy Code: ” See Section 7.01 hereof.

          “ Foreign Currency ” means any currency issued by the government of any country other than the United States of America or any composite currency (including, without limitation, the Euro).

3


          “ Global Security ” means a Security issued to evidence all or a part of any series of Securities that is executed by the Company and authenticated and delivered to the Depositary or pursuant to the Depositary’s instructions, all in accordance with this Indenture and pursuant to a Company Order, which shall be registered in the name of the Depositary or its nominee.

          “ Guarantee: ” See definition of “ Debt.

          “ Holder ” means, unless otherwise established as contemplated by Section 3.01 with respect to the Securities of any series, a Person in whose name a Security of any series is registered in the Securities Register for the Securities of such series.

          “ Indenture ” means this instrument as originally executed, or as it may be amended or supplemented from time to time as herein provided, and shall include the form and terms of particular series of Securities established as contemplated hereunder.

          “ interest ” when used with respect to any non-interest bearing Security means interest payable after Maturity thereto.

          “ Interest Payment Date ” means the Stated Maturity of an installment of interest on the Securities of any series.

          “ Lien: ” See Section 12.07 hereof.

          “ Maturity ” when used with respect to any Security means the date on which the principal of such Security becomes due and payable as therein or herein provided whether at the Stated Maturity or by declaration of acceleration, call for redemption, pursuant to a sinking fund, notice of option to elect repayment or otherwise.

          “Members:” See Section 3.04(e) hereof.

          “ Officer’s Certificate ” means a certificate of the Company signed by any one of its Officers and delivered to the Trustee. Wherever this Indenture requires that an Officer’s Certificate be signed also by an accountant or other expert, such accountant or other expert (except as otherwise expressly provided in this Indenture) may be in the employ of the Company.

          “ Officer ” means the Chairman of the Board, any one of the Vice Chairmen, the President, any one of the Vice Presidents, the Treasurer, any one of the Assistant Treasurers, the Comptroller, any one of the Assistant Comptrollers, the Secretary or any one of the Assistant Secretaries of the Company.

          “ Opinion of Counsel ” means a written opinion of the General Counsel or Counsel of the Company, or other counsel for the Company who may be an employee of the Company.

          “ Original Issue Discount Security ” means any Security that provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration pursuant to Section 7.02 hereof.

4


          “ Outstanding ” when used with respect to Securities means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:

 

 

 

          (a)      Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;

 

 

 

          (b)      Securities or portions thereof for whose payment or redemption the necessary amount of money or other trust funds, including trust funds established under Section 6.01 or 6.02 hereof, has been theretofore deposited with the Trustee or any Paying Agent (other than the Company or any other obligor on the Securities) in trust for the Holders of such Securities or shall have been set aside and segregated in trust by the Company or any other obligor on the Securities (if the Company or any other obligor on the Securities shall act as its own Paying Agent) for the Holders of such Securities; provided , however , that, if such Securities or portions thereof are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; and

 

 

 

          (c)      Securities which have been paid pursuant to Section 3.06 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company;

provided , however , that in determining whether the Holders of the requisite principal amount of Securities Outstanding have given any request, demand, authorization, direction, notice, consent or waiver hereunder, (i) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded (Securities so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or such other obligor), and (ii) the principal amount of an Original Issue Discount Security that shall be deemed to be outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration pursuant to Section 7.02 hereof.

          “ Overdue Rate ” with respect to any series of the Securities means the rate designated as such in or pursuant to a Board Resolution or supplemental indenture, as the case may be, relating to such series as contemplated by Section 3.01 hereof, or if not so designated, the rate of interest, if any, on such series of Securities.

          “ Paying Agent ” means any Person authorized by the Company to pay the principal of (or premium, if any) or interest, if any, on any Securities on behalf of the Company.

5


          “ Person ” means any individual, corporation, partnership, limited liability company, joint venture, joint stock company, association, trust, unincorporated organization or government or any agency or political subdivision thereof.

          “ Place of Payment ” when used with respect to the Securities of any series, means the place or places where the principal of (and premium, if any) and interest, if any, on the Securities of such series are payable as specified as contemplated by Section 3.01 or, if not so specified, as specified in Section 12.02.

          “ Principal Subsidiaries ” of the Company means the following so long as they continue to be Subsidiaries: American Express Travel Related Services Company, Inc., American Express Banking Corporation and any one or more Subsidiaries of the Company that shall succeed to all or substantially all of the business of any of the foregoing Subsidiaries or succeed to the ownership of all or substantially all of the property and assets of any of the foregoing Subsidiaries.

          “ record date :” See Section 3.08 hereof.

          “ Redemption Date, ” when used with respect to any Security to be redeemed, means the date fixed for such redemption in or pursuant to a Board Resolution or supplemental indenture, as the case may be, with respect to the Securities of such series as contemplated by Section 3.01 hereof.

          “ Redemption Price, ” when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to a Board Resolution or supplemental indenture, as the case may be, with respect to the Securities of such series as contemplated by Section 3.01 hereof, exclusive of interest accrued and unpaid to the Redemption Date.

          “ Responsible Officer, ” shall mean, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.

          “ Securities :” See RECITALS OF THE COMPANY herein.

          “ Securities Register ” and “ Securities Registrar :” See Section 3.05 hereof.

          “ Stated Maturity ” when used with respect to any Security or any installment of interest thereon means the date specified in such Security as the fixed date on which the principal of such Security or such installment of interest is due and payable.

          “ Subsidiary ” of any Person means (i) any corporation of which such Person at the time owns or controls, directly or through an intervening medium, more than fifty per cent (50%) of each class of outstanding Voting Stock, (ii) any limited liability company, general partnership, joint venture, joint stock company or similar entity, of which such Person at the time owns or

6


controls, directly or indirectly, more than fifty per cent (50%) of its outstanding partnership, membership or similar voting interests, as the case may be and (iii) any limited partnership of which such Person, directly or indirectly, is a general partner, and unless otherwise specified shall mean a Subsidiary of the Company.

          “ Trustee ” means the Person named as the “ Trustee ” in the first paragraph of this instrument and, subject to the provisions of Article Eight hereof, shall also include its successors and assigns as Trustee hereunder. If there shall be at any one time more than one Trustee hereunder, “ Trustee ” shall mean each such Trustee and shall apply to each such Trustee only with respect to those series of the Securities with respect to which it is serving as Trustee.

          “ Trust Indenture Act ” means the Trust Indenture Act of 1939, as amended and as in force at the date as of which this instrument was executed, except as provided in Section 11.06 hereof.

          “ U. S. Government Obligations ” means securities that are (i) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case, are not callable or redeemable at the option of the issuer thereof, and which shall also include a depository receipt issued by a commercial bank or trust company as custodian with respect to any such obligation set forth in (i) or (ii) above or a specific payment of interest on or principal of any such obligation held by such custodian for the account of the holder of a depository receipt; provided, however, that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the obligation evidenced by such depository receipt or the specific payment of interest on or principal of such obligation.

          “ Vice President, ” when used with respect to the Company or the Trustee means any vice president, whether or not designated by a number or a word or words added before or after the title “ vice president.

          “ Voting Stock ” means stock of the class or classes having general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of such corporation (irrespective of whether or not at the time stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency).

          Section 1.02. Compliance Certificates and Opinions.

          Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.

7


          Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include

 

 

 

          (a)      a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;

 

 

 

          (b)      a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

 

 

 

          (c)      a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and

 

 

 

          (d)      a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.

          Section 1.03. Form of Documents Delivered to Trustee.

          In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.

          Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.

          Any certificate, statement or opinion of an Officer of the Company or of counsel may be based, insofar as it relates to accounting matters, upon a certificate or opinion of or representations by an accountant or firm of accountants in the employ of the Company, unless such Officer or counsel, as the case may be, knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the accounting matters upon which his or her certificate, statement or opinion is based are erroneous.

          Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated to form one instrument.

8


          Section 1.04. Act of Holders.

 

 

 

          (a)      Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee, and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “ Act ” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 8.01 hereof) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section 1.04.

 

 

 

          (b)      The fact and date of the execution by any Person of any such instrument or writing, or the authority of the Person executing the same, may be proved in any manner which the Trustee deems sufficient and in accordance with such reasonable requirements as the Trustee may determine.

 

 

 

          (c)      The ownership of Securities of any series shall be proved by the Securities Register.

 

 

 

          (d)      Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Security shall bind the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done or suffered to be done by the Trustee or the Company or any agent of the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security.

 

 

 

          (e)      The Company may set a record date for purposes of determining the identity of Holders entitled to vote or consent or take any other action under this Indenture, which record date shall not be more than 60 days nor less than 10 days prior to the solicitation with respect thereto, and only such Holders shall be so entitled.

          Section 1.05. Notices, etc., to Trustee and Company.

          Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,

 

 

 

          (a)      the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, or

 

 

 

          (b)      the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (except as provided in Subsections (d) and (f) of Section 7.01 hereof) if in writing and mailed, first-class postage prepaid, to the Company addressed to it at the

9



 

 

 

address of its principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the Company.

          Section 1.06. Notice to Holders; Waiver.

          Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at his address as it appears in the Securities Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Any notice mailed in the manner prescribed by this Indenture shall be deemed to have been given whether or not such Holder receives said notice. In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.

          Section 1.07. Immunity of Incorporators; Stockholders, Officers and Directors.

          No recourse shall be had for the payment of the principal of (and premium, if any) or the interest, if any, on any Security of any series, or for any claim based thereon, or upon any obligation, covenant or agreement of this Indenture, against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or of any successor corporation, either directly or indirectly through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise; it being expressly agreed and understood that this Indenture and all the Securities of each series are solely corporate obligations, and that no personal liability whatever shall attach to, or is incurred by, any incorporator, stockholder, officer or director, past, present or future, of the Company or of any successor corporation, either directly or indirectly through the Company or any successor corporation, because of the incurring of the indebtedness hereby authorized or under or by reason of any of the obligations, covenants or agreements contained in this Indenture or in any of the Securities of each series, or to be implied herefrom or therefrom; and that all such personal liability is hereby expressly released and waived as a condition of, and as part of the consideration for, the execution of this Indenture and the issue of the Securities of each series.

          Section 1.08. Conflict with Trust Indenture Act.

          If any provision hereof limits, qualifies or conflicts with another provision hereof that is required to be included in this Indenture by any of the provisions of the Trust Indenture Act, such required provision shall control.

10


          Section 1.09. Effect of Headings and Table of Contents.

          The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

          Section 1.10. Successors and Assigns.

          All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.

          Section 1.11. Separability Clause.

          In case any provision in this Indenture or in the Securities of any series shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions (or of any other series of Securities) shall not in any way be affected or impaired thereby.

          Section 1.12. Benefits of Indenture.

          Nothing in this Indenture or in the Securities, expressed or implied, shall give to any Person, other than the parties hereto and their successors hereunder, and the Holders of the Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture.

          Section 1.13. Governing Law.

          This Indenture and each Security shall be deemed to be a contract made under the laws of the State of New York and this Indenture and each Security for all purposes shall be governed by and construed in accordance with the laws of the State of New York.

          Section 1.14. Cross References.

          All references herein to “ Articles ” and other subdivisions are to the corresponding Articles or other subdivisions of this Indenture; and the words “ herein ,” “ hereof ,” “ hereby ,” “ hereunder ,” “ hereinbefore ” and “ hereinafter ” and other words of similar purport refer to this Indenture generally and not to any particular Article, Section or other subdivision hereof.

          Section 1.15. Counterparts.

          This Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument.

          Section 1.16. Legal Holidays.

          In any case where any Interest Payment Date, Redemption Date or Stated Maturity of a Security of any series is not a Business Day at the relevant Place of Payment with respect to Securities of such series, then notwithstanding any other provision of this Indenture or the Securities, payment of interest, if any, or principal and premium, if any, with respect to such Security need not be made at such Place of Payment on such date but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on

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such Interest Payment Date or Redemption Date or at the Stated Maturity, and no interest shall accrue on such payment for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.

          Section 1.17. Securities in Foreign Currencies.

          Whenever this Indenture provides for any action by, or any distribution to, Holders of Securities denominated in Dollars and in any Foreign Currency, in the absence of any provision to the contrary established as contemplated by Section 3.01 for the Securities of any particular series, any amount in respect of any Security denominated in a Foreign Currency shall be treated for any such action or distribution as that amount of Dollars that could be obtained for such amount on such reasonable basis of exchange and as of such date as the Company may specify in a Company Order.

          The Trustee shall segregate moneys, funds and accounts held by the Trustee in one currency or currency unit from any moneys, funds or accounts in any other currencies or currency units, notwithstanding any provision herein which would otherwise permit the Trustee to commingle such amounts.

          Section 1.18. Force Majeure.

          In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

ARTICLE TWO

SECURITY FORMS

          Section 2.01. Forms Generally.

          The Securities of each series shall be in substantially the form as shall be established by or pursuant to the authority granted in a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with any law or with any rules made pursuant thereto or with any rules of any securities exchange or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution of the Securities.

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          The definitive Securities of each series shall be printed, lithographed or engraved or produced by any combination of these methods on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities.

          Section 2.02. Form of Certificate of Authentication.

          The Certificate of Authentication on all Securities shall be in substantially the following form:

          This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.

 

 

 

 

The Bank of New York,
as Trustee

 

 

 

     

 

 

 

By

[Authorized Officer or

 

 

Authorized Signatory]

 

 

 

 

or

 

     

 

 

 

 

 

 

By

[As Authenticating Agent]

 

 

 

     

 

 

 

By

[Authorized Officer or

 

 

Authorized Signatory]

          Section 2.03. Securities in Global Form.

          If any Security of a series is issuable as a Global Security (in whole or in part), such Global Security may provide that it shall represent the aggregate principal amount of Outstanding Securities of such series from time to time represented thereby in the records of the Trustee or endorsed thereon and may also provide that the aggregate principal amount of Outstanding Securities of such series represented thereby in the records of the Trustee or endorsed thereon may from time to time be reduced or increased. Any change in the records of the Trustee or any endorsement of a Global Security to reflect the aggregate principal amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee in accordance with provisions established as contemplated by Section 3.01.

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ARTICLE THREE

THE SECURITIES

          Section 3.01. Amount Unlimited; Issuable in Series.

          The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited.

          The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution or one or more indentures supplemental hereto, prior to the issuance of any Securities of any series:

 

 

 

          (a)     the title of the Securities of such series (which shall distinguish the Securities of such series from all other series of Securities);

 

 

 

          (b)     any limit upon the aggregate principal amount of the Securities of such series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of such series pursuant to Sections 3.05, 3.06, 3.07, 4.07, or 11.07 hereof);

 

 

 

          (c)     the date or dates (or manner of determining the same) on which the principal of and premium, if any, on the Securities of such series is payable (which if so provided in or pursuant to the authority granted in such Board Resolution or supplemental indenture, may be determined by the Company from time to time and set forth in the Securities of the series issued from time to time);

 

 

 

          (d)     the Persons to whom interest on Securities of such series shall be payable, if other than the Persons in whose names such Securities are registered at the close of business on the record date for such interest;

 

 

 

          (e)     the rate or rates (or manner of determining the same) at which the Securities of such series shall bear interest, if any, the date or dates from which such interest shall accrue (which, in either case or both, if so provided in or pursuant to the authority granted in such Board Resolution or supplemental indenture, may be determined by the Company from time to time and set forth in the Securities of the series issued from time to time), the Interest Payment Dates on which such interest shall be payable (or manner of determining the same) and, if other than as set forth in Section 3.08 hereof, the record date for the determination of Holders to whom interest is payable and the basis upon which interest shall be calculated if other than as set forth in Section 3.11;

 

 

 

          (f)     the place or places at which (i) the principal of and premium, if any, and interest, if any, on Securities of such series shall be payable if other than as set forth in the third sentence of Section 12.02, (ii) registration of transfer of Securities of such series may be effected, (iii) exchanges of Securities of such series may be effected and (iv) notice and demands to or upon the Company in respect of the Securities of such series

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and this Indenture may be served; and if such is the case, that the principal of such Securities shall be payable without the presentment or surrender thereof;

 

 

 

          (g)     the price or prices at which, the period or periods within which and the terms and conditions upon which Securities of such series may be redeemed, in whole or in part, at the option of the Company, at the option of a Holder or otherwise;

 

 

 

          (h)     the obligation, if any, of the Company to redeem, purchase or repay Securities of such series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the price or prices at which, the period or periods within which and the terms and conditions upon which Securities of such series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;

 

 

 

          (i)     if other than Dollars, the Foreign Currency in which payment of the principal of, premium, if any, and interest, if any, on the Securities of such series shall be payable or in which such Securities will be denominated;

 

 

 

          (j)     if the principal of, premium, if any, or interest, if any, on the Securities of such series are to be payable, at the election of the Company or a Holder thereof, in a coin or currency (which may be a composite currency) other than that in which such Securities are stated to be payable, the period or periods within which, and the terms and conditions upon which, such election may be made;

 

 

 

          (k)     if denominated or payable in any coin or currency, including composite currencies, other than Dollars, or if the terms of the Securities provide that the principal amount thereof payable at maturity may be more or less than the principal face amount thereof at original issuance, the method by which the Securities of such series shall be valued, which may be any reasonable method, against the Securities of all other series for voting, the giving of any request, demand, authorization, direction, notice, consent or waiver, distribution and all other purposes hereof and any provisions required for purposes of applying Sections 6.01, 6.02 and 12.07(b) hereof;

 

 

 

          (l)     if the amount of payments of principal of and premium, if any, or interest, if any, on the Securities of such series may be determined with reference to an index, the formula or other method (which may be based on one or more currencies (including a composite currency), commodities, equity indices or other indices), and the manner in which such amounts shall be determined;

 

 

 

          (m)    if other than denominations of $1,000 and any integral multiple thereof, the denominations in which Securities of such series shall be issuable;

 

 

 

          (n)     if other than the principal amount thereof, the portion of the principal amount of Securities of such series that shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 7.02 hereof or the method by which such portion shall be determined;

 

 

 

          (o)     any addition to, or modification or deletion of, any Event of Default or any covenant of the Company specified herein with respect to the Securities of such series;

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          (p)     if other than the rate of interest, if any, stated in the title of the Securities of such series, the applicable Overdue Rate;

 

 

 

          (q)     if the Securities of such series do not bear interest, the applicable dates for purposes of Section 9.01 hereof;

 

 

 

          (r)     the inapplicability, if such is to be the case, to the Securities of such series of Section 6.02 relating to satisfaction, discharge and defeasance of Securities and any modification to Section 6.02;

 

 

 

          (s)     if other than The Bank of New York is to act as Trustee for the Securities of such series, the name and Corporate Trust Office of such Trustee;

 

 

 

          (t)     whether the Securities of such series shall be issued in whole or in part in the form of a Global Security or Securities and, in such case the terms and conditions, if any, upon which such Global Security or Securities may be exchanged in whole or in part for definitive Securities, the Depositary for such Global Security or Securities (which shall be a clearing agency registered under the Exchange Act, or any other applicable statute or regulation, to the extent required thereunder), whether such Global Security shall be permanent or temporary, any limitations on the rights of the Holder or Holders to transfer or exchange the same or to obtain the registration of transfer thereof in addition to or in lieu of those set forth in Section 3.05, any limitations on the rights of the Holder or Holders thereof to obtain certificates in definitive form, and, the provisions for determining the aggregate principal amount of Outstanding Securities from time to time represented thereby and any and all matters incidental to such Global Security or Securities;

 

 

 

          (u)     if the Securities of such series may be converted into or exchanged for other securities of the Company or any other Persons, the terms and conditions pursuant to which the Securities of such series may be converted or exchanged;

 

 

 

          (v)     if the principal of or premium, if any, or interest, if any, on the Securities of such series are to be payable, at the election of the Company or a Holder thereof, in securities or other property, the type and amount of such securities or other property, or the method by which such amount shall be determined, and the periods within which, and the terms and conditions upon which, any such election may be made;

 

 

 

          (w)     if the Securities of any such series are to be issuable as bearer securities, any and all matters incidental thereto;

 

 

 

          (x)     if the Securities of such series are to be issued upon the exercise of a warrant or right, the time, manner and place for such Securities to be authenticated and delivered; and

 

 

 

          (y)     any other terms of the Securities of such series (which terms shall not be inconsistent with the provisions of this Indenture, shall conform to any applicable requirements of the Trust Indenture Act, and shall not materially adversely affect the rights of the Holders of Securities then outstanding).

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          All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to the authority granted in such Board Resolution or in any such indenture supplemental hereto. All Securities of any one series need not be issued at the same time, and, unless otherwise provided, a series may be reopened for issuance of additional Securities of such series.

          Section 3.02. Denominations.

          Unless otherwise established as contemplated by § 3.01, the Securities of each series shall be issuable only in registered form without coupons in such denominations as shall be specified as contemplated by Section 3.01 hereof. In the absence of any such specification with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $1,000 and any integral multiple thereof.

          Section 3.03. Authentication and Dating.

          At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication. Except as otherwise provided in this Article, the Trustee shall thereupon authenticate and deliver, or cause to be authenticated and delivered, said Securities pursuant to a Company Order without any further action by the Company. Securities shall be dated the date of their authentication. In authenticating (or causing authentication of) such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be provided with, prior to the initial authentication of such Securities, and (subject to Sections 8.01 and 8.03 hereof) shall be fully protected in relying upon:

 

 

 

          (a)     a Board Resolution relating thereto and, if applicable, an appropriate record of any action taken pursuant to such resolution, in each case certified by the Secretary or an Assistant Secretary of the Company;

 

 

 

          (b)     an executed supplemental indenture, if any, relating thereto;

 

 

 

          (c)     an Officer’s Certificate setting forth the form and terms of the Securities of such series established pursuant to Sections 2.01 and 3.01 hereof (to the extent not set forth in the documents delivered pursuant to Subsections 3.03(a) or 3.03(b)) and stating that all conditions precedent provided for in this Indenture relating to the issuance of such Securities have been complied with, that no Event of Default with respect to any series of Securities has occurred and is continuing and that the issuance of such Securities is not and will not result in (i) an Event of Default or an event or condition that, upon the giving of notice (or the acquisition of knowledge) or the lapse of time or both, would become an Event of Default or (ii) a default under the provisions of any other material instrument or agreement by which the Company is bound; and

 

 

 

          (d)     an Opinion of Counsel stating


 

 

 

 

 

          (i)     that the form and the terms of such Securities have been established by or pursuant to the authority granted in a Board Resolution or by a

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supplemental indenture as permitted by Sections 2.01 and 3.01 hereof in conformity with the provisions of this Indenture;

 

 

 

 

 

          (ii)     that such Securities, when executed and delivered by the Company, and authenticated and delivered by or on behalf of the Trustee in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization and, moratorium and other similar laws relating to or affecting creditors’ rights generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing and to such other qualifications as such counsel shall conclude do not materially affect the rights of Holders of such Securities;

 

 

 

 

 

          (iii)    that the Company has the corporate power to issue such Securities, and has duly taken all necessary corporate action with respect to such issuance;

 

 

 

 

 

          (iv)    that the issuance of such Securities will not contravene the charter or by-laws of the Company or result in any violation of any of the terms or provisions of any applicable law or regulation that would normally be applicable to general business entities with respect to such issuance or result in any material violation of any indenture, mortgage or other agreement known to such counsel by which the Company or any of its subsidiaries is bound;

 

 

 

 

 

          (v)      that this Indenture is qualified under the Trust Indenture Act; and

 

 

 

 

 

          (vi)     such other matters as the Trustee may reasonably request.

 

 

 

 

          (e)     Notwithstanding the provisions of Section 3.01 and of this Section 3.03, if all of the Securities of any series are not to be originally issued at the same time, then the documents required to be delivered pursuant to this Section 3.03 must be delivered only once, prior to the authentication and delivery of the first Security of such series; provided, however , that any subsequent request by the Company to the Trustee to authenticate Securities of such series upon original issuance shall constitute a representation and warranty by the Company and the Guarantor that, as of the date of such request, the statements made in any Officers’ Certificate delivered pursuant to this Section 3.03 shall be true and correct as if made on such date.

          The Trustee shall have the right to decline to authenticate and deliver, or cause to be authenticated and delivered, any Securities under this Section 3.03 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken or if the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Holders.

          Unless otherwise provided in the form of Securities of any particular series, each Security shall be dated the date of its authentication.

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          Section 3.04. Execution of Securities.

 

 

 

          (a)     The Securities shall be signed in the name and on behalf of the Company by the manual or facsimile signatures of its Chairman of the Board, any one of its Vice Chairmen, its President or any one of its Vice Presidents, under its corporate seal (which may be printed, engraved or otherwise reproduced thereon, by facsimile or otherwise) and attested to by its Secretary or any one of its Assistant Secretaries, whose signatures may be manual or facsimile. Only such Securities as shall bear thereon a certificate of authentication substantially in the form hereinbefore recited, executed by or on behalf of the Trustee by manual signature, shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by or on behalf of the Trustee upon any Security executed by the Company shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Indenture.

 

 

 

          (b)     In case any Officer of the Company who shall have signed any of the Securities shall cease to be such officer before the Securities so signed shall have been authenticated and delivered by or on behalf of the Trustee, or disposed of by the Company, such Securities nevertheless may be authenticated and delivered or disposed of as though the person who signed such Securities had not ceased to be such officer of the Company; and any Security may be signed on behalf of the Company by such persons as, at the actual date of the execution of such Security, shall be the proper officers of the Company, although at the date of the execution of this Indenture any such person was not such an officer.

 

 

 

          (c)     If the Company shall establish pursuant to Section 3.01 that the Securities of a series are to be issued in whole or in part in the form of one or more Global Securities, then the Company shall execute and the Trustee shall authenticate and deliver one or more Global Securities that (i) shall represent an aggregate amount equal to the aggregate principal amount of the Outstanding Securities of such series to be represented by such Global Securities, (ii) shall be registered, if in registered form, in the name of the Depositary for such Global Security or Securities or the nominee of such Depositary, (iii) shall be delivered by the Trustee to such Depositary or pursuant to such Depositary’s instruction and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for the individual Securities represented hereby, this Global Security may not be transferred except as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.” The aggregate principal amount of each Global Security may from time to time be increased or decreased by adjustments made on the records of the Depositary for such Global Security or Securities or the nominee of such Depositary, as provided in this Indenture.

 

 

 

          (d)     Each Depositary designated pursuant to Section 3.01 for a Global Security in registered form must, at the time of its designation and at all times while it serves as such Depositary, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.

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          (e)     Members of, or participants in, the Depositary (“Members”) shall have no rights under this Indenture with respect to any Global Security held on their behalf by the Depositary or by the Security Registrar under such Global Security, and the Depositary may be treated by the Company, the Trustee, the Paying Agent and the Security Registrar and any of their agents as the absolute owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee, the Paying Agent or the Security Registrar or any of their agents from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Members, the operation of customary practices of the Depositary governing the exercise of the rights of an owner of a beneficial interest in any Global Security. The registered holder of a Global Security may grant proxies and otherwise authorize any Person, including Members and Persons that may hold interests through Members, to take any action that a Holder is entitled to take under this Indenture or the Securities.

          Section 3.05. Exchange and Registration of Transfer of Securities.

          Securities of any series (except for Global Securities, which may only be exchanged in the limited circumstances described below) may be exchanged for Securities of like tenor and aggregate principal amount of the same series of other authorized denominations. Unless otherwise established as contemplated by Section 3.01, Securities to be exchanged shall be surrendered at any of the offices or agencies of the Company maintained as provided in Section 12.02 hereof for such purpose, and the Company shall execute and register, or cause to be registered, and the Trustee shall authenticate and deliver, or cause to be authenticated and delivered, in exchange therefor the Security or Securities which the Holder making such exchange shall be entitled to receive.

          Unless otherwise established as contemplated by Section 3.01, the Company shall keep, at said office or agency in the same city in which the Corporate Trust Office of the Trustee is located, a register for each series of Securities issued hereunder (the register maintained at such office or agency being referred to as the “Securities Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities of such series and registration of transfer of such Securities as provided in this Article. The Securities Register shall be in written form or in any other form capable of being converted into written form within a reasonable time. The Trustee is hereby initially appointed “Securities Registrar” for the purpose of registering Securities and registering transfers of Securities as herein provided. Upon due presentment for registration of transfer of any Security of any series at any of the offices or agencies to be maintained by the Company, as provided in Section 12.02 hereof, the Company shall execute and register, or cause to be registered, and the Trustee shall authenticate and deliver, or cause to be authenticated and delivered, in the name of the transferee or transferees a new Security or Securities of the same series in authorized denominations for an equal aggregate principal amount.

          Every Security issued upon registration of transfer or exchange of Securities pursuant to this Section 3.05 shall be the valid obligation of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Security or Securities surrendered upon registration of such transfer or exchange.

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          All Securities presented for registration of transfer or for exchange, redemption or payment shall (if so required by the Company, the Trustee or the Securities Registrar) be duly endorsed by, or be accompanied by, a written instrument or instruments of transfer in form satisfactory to the Company, the Trustee and the Securities Registrar duly executed by the Holder thereof or his attorney duly authorized in writing.

          No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Sections 3.07, 4.07 or 11.07 hereof not involving any transfer.

          The Company shall not be required (a) to issue, register the transfer of or exchange any Security of any series during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of Securities of such series and ending at the close of business on the day of such mailing or (b) to register the transfer of or exchange any Security selected for redemption in whole or in part, except, in the case of any Security to be redeemed in part, the portion thereof not to be redeemed.

          As provided in Section 3.04 hereof, each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such Global Security or a nominee thereof and delivered to such Depositary or a custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture. Notwithstanding the foregoing and except as otherwise specified as contemplated by Section 3.01, no Global Security shall be registered for transfer or exchange, or authenticated or delivered, pursuant to this Section 3.05 or Sections 3.06, 3.07, 4.07 or 11.07 in the name of a Person other than the Depositary for such Security or its nominee until (i) the Depositary with respect to a Global Security notifies the Company in writing that it is unwilling or unable to continue as Depositary for such Global Security or the Depositary ceases to be a clearing agency registered under the Exchange Act or other applicable statute or regulation if required thereunder, and the Company notifies the Trustee that it is unable to locate a qualified successor Depositary, (ii) the Company executes and delivers to the Trustee a Company Order that such Global Security shall be so transferable and exchangeable or (iii) there shall have occurred and be continuing an Event of Default with respect to the Securities of such Series. Upon the occurrence in respect of any Global Security of any series of any one or more of the conditions specified in clauses (i), (ii) or (iii) of the preceding sentence or such other conditions as may be specified as contemplated by Section 3.01 for such series, the Company shall execute, and the Trustee upon receipt of a Company Order shall authenticate and deliver, without service charge, (i) to the Depositary or to each Person specified by such Depositary a new Security or Securities of the same series, of like tenor and terms in definitive form and of any authorized denomination as requested by such Person in aggregate principal amount equal to and in exchange for such Person’s beneficial interest in the Global Security, and (ii) to such Depositary a new Global Security of like tenor and terms and in a principal amount equal to the difference, if any, between the principal amount of the surrendered Global Security and the aggregate principal amount of Securities delivered pursuant to clause (i).

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          Except as provided in the preceding paragraph, any Security authenticated and delivered upon registration of transfer or, or in exchange for, or in lieu of, any Global Security or any portion thereof, whether pursuant to this Section 3.05, Section 3.06, 3.07, 4.07 or 11.07 or otherwise, shall also be a Global Security. Notwithstanding any other provision of this Indenture, a Global Security may not be transferred except as a whole by the Depositary for such Global Security to a nominee of such Depositary or to another Depositary or a nominee thereof or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or to another Depositary or a nominee thereof.

          Upon the exchange of a Global Security for Securities in definitive form, such Global Security shall be cancelled by the Trustee. Definitive Securities issued in exchange for a Global Security pursuant to this Section shall either be in global form, established as contemplated by Sections 2.01 and 3.01, or shall be registered in such names and in such authorized denominations and delivered to the Depositary or to such Persons at such addresses as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee in writing.

          Section 3.06. Mutilated, Destroyed, Lost or Stolen Securities.

          In case any temporary or definitive Security shall become mutilated or be destroyed, lost or stolen, and in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company in the case of a mutilated Security shall, and in the case of a lost, stolen or destroyed Security may in its discretion, execute, and upon a Company Request the Trustee shall authenticate and deliver, or cause to be authenticated and delivered, a new Security of the same series bearing a number, letter or other distinguishing symbol not contemporaneously outstanding, in exchange and substitution for the mutilated Security, or in lieu of and in substitution for the Security so destroyed, lost or stolen, or if any such Security shall have become due and payable or shall be about to become due and payable, instead of issuing a substituted Security, the Company may pay or authorize the payment of the same without surrender thereof (except in the case of a mutilated Security). In every case the applicant for a substituted Security shall surrender the Security to the Trustee, if mutilated, and shall furnish to the Company and to the Trustee such security or indemnity as may be required by them to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company and to the Trustee evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership thereof.

          Upon the issuance of any substituted Security under this Section 3.06, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee and any Authenticating Agent) connected therewith.

          Every substituted Security issued pursuant to the provisions of this Section 3.06 by virtue of the fact that any Security is mutilated, destroyed, lost or stolen shall constitute an additional contractual obligation of the Company, whether or not the mutilated, destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder. All Securities shall be held and owned upon the express condition that the

22


foregoing provisions of this Section 3.06 are exclusive with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities and shall preclude (to the extent lawful) any and all other rights or remedies with respect to the replacement or payment of negotiable instruments or other securities without their surrender.

          Section 3.07. Temporary Securities.

          Pending the preparation of definitive Securities of any series, the Company may execute and the Trustee shall authenticate and deliver, or cause to be authenticated and delivered, temporary Securities of such series (printed, lithographed, typewritten, mimeographed or otherwise produced). Temporary Securities shall be issuable in any authorized denomination and substantially in the form of the definitive Securities in lieu of which they are issued but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined by the Company with the concurrence of the Trustee. Every such temporary Security shall be executed by the Company and shall be authenticated by or on behalf of the Trustee upon the same conditions and in substantially the same manner, and with the same effect, as the definitive Securities in lieu of which they are issued. The Company, without unreasonable delay, will execute and deliver to the Trustee definitive Securities of such series and thereupon any or all temporary Securities of such series may be surrendered in exchange therefor, at any of the offices or agencies of the Company maintained as provided in Section 12.02 hereof for such purpose, and the Trustee shall authenticate and deliver, or cause to be authenticated and delivered, in exchange for such temporary Securities an equal aggregate principal amount of definitive Securities of such series. Such exchange shall be made by the Company at its own expense and without any charge therefor except that in case of any such exchange involving any registration of transfer, the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto. Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series authenticated and delivered hereunder.

          Upon any exchange of a portion of a temporary Global Security for a definitive Global Security or for the individual Securities represented thereby pursuant to this Section 3.07 or Section 3.05 hereof, the temporary Global Security shall be endorsed by the Trustee to reflect the reduction of the principal amount evidenced thereby, whereupon the principal amount of such temporary Global Security shall be reduced for all purposes by the amount so exchanged and endorsed.

          Section 3.08. Payment of Interest; Interest Rights Preserved.

          The Holder at the close of business on any record date with respect to any Interest Payment Date shall be entitled to receive the interest, if any, payable on such Interest Payment Date notwithstanding the cancellation of such Securities upon any transfer or exchange subsequent to the record date and prior to such Interest Payment Date. Except as otherwise specified as contemplated by Section 3.01 hereof for Securities of a particular series, the term “ record date” as used in this Section 3.08 with respect to any Interest Payment Date, shall mean the last day of the calendar month preceding such Interest Payment Date if such Interest Payment Date is the fifteenth day of the calendar month, and shall mean the fifteenth day of the calendar

23


month preceding such Interest Payment Date if such Interest Payment Date is the first day of the calendar month, whether or not such day shall be a Business Day.

          If and to the extent the Company shall default in the payment of the interest due on such Interest Payment Date, such defaulted interest (herein called “Defaulted Interest”) shall forthwith cease to be payable to the registered Holder on such record date by virtue of having been such Holder, and such Defaulted Interest shall be paid by the Company, at its election in each case, as provided in clause (a) or (b) below:

 

 

 

          (a)     The Company may make payment of any Defaulted Interest to the Holders at the close of business on a subsequent record date established in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Holders entitled to such Defaulted Interest as in this clause (a) provided. Thereupon the Trustee shall fix a record date for the payment of such Defaulted Interest that shall not be more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such record date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the record date therefor to be mailed, first-class postage prepaid, to each Holder at his address as it appears on the Securities Register, not less than 10 days prior to such record date. Notice of the proposed payment of such Defaulted Interest and the record date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Holders at the close of business on such record date (notwithstanding the cancellation of such Securities upon any transfer or exchange subsequent to such record date and prior to such payment) and shall no longer be payable pursuant to the following clause (b).

 

 

 

          (b)     The Company may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of such series may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause (b), such manner of payment shall be deemed practicable by the Trustee.

          Subject to the foregoing provisions of this Section 3.08, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.

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          Section 3.09. Persons Deemed Owners.

          Prior to the due presentment for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name any Security is registered as the owner of such Security for the purpose of receiving payment of principal of and premium, if any and, subject to Section 3.08 hereof, interest, if any, on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.

          None of the Company, the Trustee, any Paying Agent or the Securities Registrar shall have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests and they shall be protected in acting or refraining from acting on any such information provided by the Depositary.

          Section 3.10. Cancellation.

          All Securities surrendered for the purpose of payment, redemption, exchange or registration of transfer or for credit against any sinking fund shall, if surrendered to the Company or any Paying Agent or any Securities Registrar, be surrendered to the Trustee and promptly cancelled by it, or, if surrendered to the Trustee, shall be promptly cancelled by it, and no Securities shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture. Notwithstanding any other provision of this Indenture to the contrary, in the case of a series all the Securities of which are not to be originally issued at one time, a Security of such series shall not be deemed to have been Outstanding at any time hereunder if and to the extent that, subsequent to the authentication and delivery thereof, such Security is delivered to the Trustee for cancellation by the Company or any agent thereof upon the failure of the original purchaser thereof to make payment therefor against delivery thereof, and any Security so delivered to the Trustee shall be promptly cancelled by it. The Trustee shall dispose of cancelled Securities and deliver a certificate of such disposal to the Company upon its request therefor unless, by a Company Order, the Company directs that such cancelled Securities be returned to it. If the Company shall acquire any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are surrendered to the Trustee for cancellation.

          Section 3.11. Computation of Interest.

          Except as otherwise specified as contemplated by Section 3.01 hereof for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.

          Section 3.12. CUSIP Numbers.

          The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any

25


notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee in writing of any change in the “CUSIP” numbers.

ARTICLE FOUR

REDEMPTION OF SECURITIES

          Section 4.01. Applicability of Article.

          The provisions of this Article shall be applicable to the Securities of any series which are redeemable before their Maturity except as otherwise specified as contemplated by Section 3.01 hereof for Securities of such series.

          Section 4.02. Election to Redeem; Notice to Trustee.

          The election of the Company to redeem any Securities of any series shall be evidenced by or pursuant to authority granted in a Board Resolution. In case of any redemption at the election of the Company of less than all of the Securities of a series, the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee) deliver to the Trustee an Officer’s Certificate notifying the Trustee of such Redemption Date and of the principal amount of Securities of such series to be redeemed and stating that no default in payment of interest or Event of Default has occurred and is continuing with respect to such series.

          Section 4.03. Selection by Trustee of Securities to Be Redeemed

          If less than all the Securities of any series are to be redeemed, the particular Securities of such series to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem appropriate (which is in compliance with the requirements of any national securities exchange on which such Securities are listed) and which may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Securities of such series or any integral multiple thereof) of the principal of Securities of a denomination greater than the minimum authorized denomination of such series.

          The Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in the case of any Security selected for partial redemption, the principal amount thereof to be redeemed.

          For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.

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          Section 4.04. Notice of Redemption.

          Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities of the series to be redeemed, at his address appearing in the Securities Register. Neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders.

          All notices of redemption shall state:

 

 

 

          (a)     the Redemption Date,

 

 

 

          (b)     the Redemption Price and accrued interest, if any,

 

 

 

          (c)     if less than all Outstanding Securities of such series are to be redeemed, the identification (and, in the case of partial redemption, the respective principal amounts) of the Securities of such series to be redeemed,

 

 

 

          (d)     that on the Redemption Date the Redemption Price, together with accrued interest, if any, to the Redemption Date, will become due and payable upon each such Security, and that interest thereon shall cease to accrue from and after said date,

 

 

 

          (e)     the place where such Securities are to be surrendered for payment of the Redemption Price and accrued interest, if any,

 

 

 

          (f)     that the redemption is for a sinking fund, if that be the case, and

 

 

 

          (g)     applicable CUSIP Numbers.

          Notice of redemption of the Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of the Company, provided, however, in the latter case, the Company shall give the Trustee at least five days prior written notice.

          Section 4.05. Deposit of Redemption Price.

          On or before any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 12.03 hereof) an amount of money (in the currency in which the Securities so called for redemption are payable) sufficient to pay the Redemption Price of, and accrued interest, if any, on, all the Securities or portions thereof which are to be redeemed on that date.

          Section 4.06. Securities Payable on Redemption Date.

          Notice of redemption having been given as aforesaid, the Securities or portions thereof so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, together with accrued interest, if any, to the Redemption Date, and from and

27


after such date (unless the Company shall default in the payment of the Redemption Price and such accrued interest, if any) such Securities or portions thereof shall cease to bear interest. Upon surrender of such Securities for redemption in accordance with said notice, such Securities or specified portions thereof shall be paid by the Company at the Redemption Price, together with any accrued interest to the Redemption Date. Installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities registered as such on the relevant record dates according to their terms and the provisions of Section 3.08 hereof.

          If any Security called for redemption shall not be so paid upon surrender thereof on such Redemption Date, the principal and premium, if any, shall, until paid, bear interest from the Redemption Date at the Overdue Rate for such Security.

          Section 4.07. Securities Redeemed in Part.

          Any Security that is to be redeemed only in part shall be surrendered at the Place of Payment (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing) and the Company shall execute and the Trustee shall authenticate and deliver, or cause to be authenticated and delivered, to the Holder of such Security without service charge, a new Security or Securities of the same series of any authorized denomination as requested by such Holder in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal amount of the Security so surrendered.

ARTICLE FIVE

SINKING FUNDS

          Section 5.01. Applicability of Article.

          The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 3.01 hereof for Securities of such series.

          The minimum amount of any sinking fund payment provided for by the terms of the Securities of any series is herein referred to as a “mandatory sinking fund payment,” and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional sinking fund payment.”

          Section 5.02. Satisfaction of Mandatory Sinking Fund Payments with Securities.

          In lieu of making all or any part of any mandatory sinking fund payment with respect to any Securities of a series in cash, the Company may at its option (a) deliver to the Trustee Securities of that series theretofore purchased or otherwise acquired by the Company, or (b) receive credit for the principal amount of Securities of that series that have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities; provided , however , that such Securities have not been previously so credited. Such Securities shall be

28


received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such mandatory sinking fund payment shall be reduced accordingly.

          Section 5.03. Redemption of Securities for Sinking Fund.

          Not less than 60 days prior to each sinking fund payment date for any series of the Securities, the Company will deliver to the Trustee a certificate signed by the Treasurer or any Assistant Treasurer of the Company specifying the amount of the next ensuing mandatory sinking fund payment for such series pursuant to the terms of such series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities of such series pursuant to Section 5.02 hereof (which Securities will accompany such certificate if not already delivered for cancellation to and held by the Trustee) and whether the Company intends to exercise its right to make any permitted optional sinking fund payment with respect to such series. Such certificate shall also state that no Event of Default has occurred and is continuing with respect to such series and shall set forth the basis for any credit against the sinking fund. Such certificate shall be irrevocable and upon its delivery the Company shall be obligated to make the cash payment or payments therein referred to, if any, on or before the next succeeding sinking fund payment date. In the case of the failure of the Company to deliver such certificate when due (or to deliver the Securities specified in this Section 5.03) the sinking fund payment due on the next succeeding sinking fund payment date for that series shall be paid entirely in cash and shall be sufficient to redeem the principal amount of such Securities subject to a mandatory sinking fund payment without the option to deliver or credit Securities as provided in Section 5.02 and without the right to make any optional sinking fund payment, if any, with respect to such series.

          Any sinking fund payment or payments (mandatory or optional) with respect to the Securities of any series, which payment or payments are made in cash plus any unused balance of any preceding sinking fund payments with respect to such series made in cash the sum of which shall equal or exceed $100,000 or the equivalent thereof in the Foreign Currency in which such series is denominated (or a lesser sum if the Company shall so request), shall be applied by the Trustee on the sinking fund payment date on which such payment is made (or, if such payment is made before a sinking fund payment date, on the sinking fund payment date following the date of such payment) to the redemption of such Securities at the Redemption Price specified in such Securities for operation of the sinking fund together with accrued interest, if any, to the date fixed for redemption. Any sinking fund moneys not so applied or allocated by the Trustee to the redemption of Securities shall be added to the next cash sinking fund payment received by the Trustee for such series and, together with such payment, shall be applied in accordance with the provisions of this Section 5.03. Any and all sinking fund moneys with respect to the Securities of any particular series held by the Trustee on the last sinking fund payment date with respect to Securities of such series and not held for the payment or redemption of particular Securities shall be applied by the Trustee, together with other moneys, if necessary, to be deposited sufficient for the purpose, to the payment of the principal of the Securities of such series at Maturity.

          The Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in the first paragraph of Section 4.03 hereof and the Company shall

29


cause notice of the redemption thereof to be given in the manner provided in Section 4.04 hereof. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 4.06 and 4.07 hereof.

          On or before any sinking fund payment date, the Company shall deposit with the Trustee an amount of money in the currency in which payment is to be made pursuant to Section 3.01 sufficient to pay any interest accrued to the Redemption Date for Securities or portions thereof to be redeemed on such sinking fund payment date pursuant to this Section 5.03.

          The Trustee shall not redeem any Securities of any series with sinking fund moneys or mail any notice of redemption of such Securities by operation of the sinking fund for such series during the continuance of a default in payment of interest on such Securities or of any Event of Default (other than an Event of Default occurring as a consequence of this Section 5.03) with respect to such Securities, except that if the notice of redemption of any such Securities shall theretofore have been mailed in accordance with the provisions hereof, the Trustee shall redeem such Securities if cash sufficient for that purpose shall be deposited with the Trustee for that purpose in accordance with the terms of this Article. Except as aforesaid, any moneys in the sinking fund for such series at the time when any such default or Event of Default shall occur and any moneys thereafter paid into such sinking fund shall, during the continuance of such default or Event of Default, be held as security for the payment of such Securities; provided , however , that in case such Event of Default or default shall have been cured or waived as provided herein, such moneys shall thereafter be applied on the next sinking fund payment date for such Securities on which such moneys may be applied pursuant to the provisions of this Section 5.03.

ARTICLE SIX

SATISFACTION AND DISCHARGE

          Section 6.01. Satisfaction and Discharge of Indenture.

          This Indenture shall cease to be of further effect with respect to the Securities of any series (except as to the rights of Holders of Outstanding Securities of such series to receive, from the trust funds described in paragraph (a) of this Section 6.01, payment of the principal of, premium, if any, and interest, if any, on such Outstanding Securities on the Stated Maturity of such principal, premium, if any, or installment of interest, if any, the Company’s obligations with respect to such Outstanding Securities of such series under Sections 3.05, 3.06, 6.05 and 12.02 as may be applicable to Outstanding Securities of such series, and the rights, powers, trusts, duties, indemnities and immunities of the Trustee hereunder), and the Trustee for the Securities of such series, on demand of and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect to the Securities of such series, when

 

 

 

          (a)     either


 

 

 

 

 

          (i)     all the Securities of such series theretofore authenticated and delivered (other than (A) Securities of such series that have been mutilated,

30



 

 

 

 

 

destroyed, lost or stolen and that have been replaced or paid as provided in Section 3.06 hereof and (B) Securities of such series for whose payment money has theretofore been deposited with the Trustee or the Paying Agent for the Securities of such series in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 6.05 and Section 12.03 hereof) have been delivered to such Trustee for cancellation; or

 

 

 

 

 

          (ii)     all Securities of such series not theretofore delivered to such Trustee for cancellation


 

 

 

 

 

 

 

          (A)     have become due and payable, or

 

 

 

 

 

 

 

          (B)     will become due and payable at their Stated Maturity within one year, or

 

 

 

 

 

 

 

          (C)     are to be called for redemption within one year under arrangements satisfactory to such Trustee for the giving of notice of redemption by such Trustee in the name, and at the expense, of the Company,


 

 

 

 

 

 

and the Company has deposited or caused to be deposited with such Trustee irrevocably as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of all Outstanding Securities of such series, with reference to this Section 6.01, (i) money in an amount in the currency in which the Securities of such series are denominated or (ii) U.S. Government Obligations in the case of a series of Securities denominated in Dollars or obligations issued or guaranteed by the government that issued the currency in which the Securities of such series are denominated in the case of Securities denominated in Foreign Currencies, which through the payment of interest and principal in respect thereof in accordance with their terms will provide, not later than the opening of business on the due date of any payment referred to below, money in an amount in the currency in which the Securities of such series are denominated or (iii) a combination thereof, in each case sufficient, in the opinion of a nationally recognized firm of independent registered public accountants expressed in a written certification thereof delivered and addressed to the Trustee, to pay and discharge the entire indebtedness on the Outstanding Securities of such series not theretofore delivered to such Trustee for cancellation, for principal (and premium, if any) and interest, if any, to the date of such deposit (in the case of Securities of such series which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;

 

 

 

 

 

 

          (b)     the Company has paid or caused to be paid all other sums payable hereunder by the Company in connection with Outstanding Securities of such series, including all amounts due to the Trustee under Section 8.07 for such series, and

 

 

 

          (c)     the Company has delivered to such Trustee an Officer’s Certificate and an Opinion of Counsel each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.

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          Notwithstanding the satisfaction and discharge of this Indenture with respect to the Securities of any series, the obligations of the Company to the Trustee for the Securities of such series under Section 8.07 hereof and with respect to Securities of any other series hereof shall survive such satisfaction and discharge.

          Section 6.02. Satisfaction, Discharge and Defeasance of Securities of any Series.

          Unless this Section 6.02 is specified, as contemplated by Section 3.01 hereof, to be inapplicable to Securities of any series, the Company shall, notwithstanding Section 6.01 hereof, be deemed to have paid and discharged the entire indebtedness on all the Outstanding Securities of any such series from and after the ninety-first day after the date of the deposit referred to in paragraph (a) below, the provisions of this Indenture (except as to the rights of Holders of Outstanding Securities of such series to receive, from the trust funds described in paragraph (a) below, payment of the principal of (and premium, if any) and interest, if any, on such Outstanding Securities on the Stated Maturity of such principal, premium, if any, or installment of interest, if any, the Company’s obligations with respect to such Outstanding Securities of such series under Sections 3.05, 3.06, 6.05 and 12.02 hereof, as may be applicable to Outstanding Securities of such series, and the rights, powers, trusts, duties, indemnities and immunities of the Trustee hereunder) shall no longer be in effect in respect of Outstanding Securities of such series, and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of such indebtedness, provided , however , that the following conditions shall have been satisfied:

 

 

 

          (a)     the Company has deposited or caused to be deposited with the Trustee irrevocably as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of all Outstanding Securities of such series, with reference to this Section 6.02, (i) money in an amount in the currency in which the Securities of such series are denominated or (ii) U.S. Government Obligations in the case of Securities denominated in Dollars or obligations issued or guaranteed by the government that issued the currency in which the Securities are denominated in the case of Securities denominated in Foreign Currencies, which through the payment of interest and principal in respect thereof in accordance with their terms will provide not later than the opening of business on the due date of any payment referred to in this paragraph (a), money in an amount in the currency in which the Securities of such series are denominated, or (iii) a combination thereof, in each case, sufficient, in the opinion of a nationally recognized firm of independent registered public accountants expressed in a written certification thereof delivered and addressed to the Trustee, to pay and discharge the entire indebtedness on all Outstanding Securities of such series for principal and premium, if any, and interest, if any, to the Stated Maturity as such principal and premium, if any, or interest, if any, becomes due and payable in accordance with the terms of this Indenture and the Securities of such series provided , however , that the Company shall not make or cause to be made the deposit provided by this clause (a) unless the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that there will not occur any violation of the Investment Company Act of 1940, as amended, on the part of the Company, the trust funds representing such deposit or the Trustee as a result of such deposit and the related exercise of the Company’s option under this Section 6.02;

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          (b)     the Company has paid or caused to be paid all other sums payable hereunder by the Company in connection with the Outstanding Securities of such series, including all amounts due to the Trustee under Section 8.07 for such series;

 

 

 

          (c)     the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of the entire indebtedness on all Outstanding Securities of such series have been complied with; and

 

 

 

          (d)     the Company has delivered to the Trustee an Opinion of Counsel to the effect that Holders of the Securities of such series will not recognize gain or loss on such Securities for federal income tax purposes solely as a result of such deposit, defeasance and discharge and will be subject to federal income tax in the same amounts and at the same times, as would have been the case if such deposit, defeasance and discharge had not occurred.

          Section 6.03. Application of Trust Money.

 

 

 

          (a)     Subject to the provisions of Section 6.05, all money, U.S. Government Obligations and other governmental obligations deposited with the Trustee for the Securities of any series pursuant to Sections 6.01 or 6.02 hereof, and all money received by the Trustee in respect of U.S. Government Obligations and such other government obligations deposited with the Trustee for the Securities of any series pursuant to Section 6.01 or Section 6.02 hereof, shall be held in trust and applied by it, in accordance with the provisions of the Securities of such series and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as such Trustee may determine, to the Persons entitled thereto, of the principal, premium, if any, and interest, if any, on the Securities of such series; but such money need not be segregated from other funds except to the extent required by law.

 

 

 

          (b)     The Trustee shall deliver or pay to the Company from time to time upon Company request any U.S. Government Obligations, other government obligations or money held by it as provided in Sections 6.01 and 6.02 that, in the opinion of a nationally recognized firm of independent registered public accountants expressed in a written certification thereof delivered to the Trustee, are then in excess of the amount thereof that then would have been required to be deposited for the purpose for which such U.S. Government Obligations, other government obligations or money were deposited or received.

          Section 6.04. Paying Agent to Repay Moneys Held.

          Upon the satisfaction and discharge of this Indenture all moneys then held by any Paying Agent under the provisions of this Indenture shall, upon demand of the Company, be repaid to it or paid to the appropriate Trustee, and thereupon such Paying Agent shall be released from all further liability with respect to such moneys.

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          Section 6.05. Return of Unclaimed Moneys.

          Any moneys deposited with or paid to the Trustee or any Paying Agent for the Securities of any series or then held by the Company, in trust for the payment of the principal of and premium, if any, or interest, if any, on the Securities of such series and not applied but remaining unclaimed by the Holders of Securities of such series for two years after the date upon which the principal of and premium, if any, or interest, if any, on such Securities, as the case may be, shall have become due and payable, shall, unless otherwise required by mandatory provisions of applicable escheat as abandoned or unclaimed property law, be repaid to the Company by such Trustee or any Paying Agent on demand or (if then held by the Company) shall be discharged from such trust; and the Holder of any such Securities entitled to receive such payment shall thereafter look only to the Company for the payment thereof and the liability of the Trustee or such Paying Agent with respect to such payment and any obligation of the Company to hold moneys in trust for such payment shall thereupon cease; provided , however , that, before any such action shall occur, the Trustee shall have received 20 days’ prior notice thereof, upon receipt of which such Trustee may (at the expense of the Company) cause to be published once a week for two successive weeks, in each case on any day of the week, in an Authorized Newspaper in the same city in which the Place of Payment with respect to Securities of such series shall be located and in an Authorized Newspaper in the Borough of Manhattan, The City of New York, a notice (in such form as may be deemed appropriate by such Trustee) that said moneys remain unclaimed and that, after a date named therein, any unclaimed balance of said moneys then remaining will be returned to the Company.

ARTICLE SEVEN

REMEDIES

          Section 7.01. Events of Default.

          “Event of Default” whenever used herein with respect to Securities of any series means such events as may be established with respect to the Securities of such series as contemplated by Section 3.01 hereof and any one of the following events, continued for the period of time, if any, and after the giving of notice, if any, designated herein or therein, as the case may be, unless the same is either not applicable to such series or is deleted or modified pursuant to the authority granted in the applicable Board Resolution or in the supplemental indenture under which such series of Securities is issued, as the case may be, as contemplated by Section 3.01 hereof:

 

 

 

          (a)     default in the payment of any interest upon any Security of such series when the same becomes due and payable, and continuance of such default for a period of 30 days; or

 

 

 

          (b)     default in the payment of all or any part of the principal of (or premium, if any, on) any Security of such series at its Maturity; or

 

 

 

          (c)     default in the making or satisfaction of any sinking fund payment or analogous obligation when the same becomes due and payable by the terms of the Securities of such series; or

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          (d)     default in the performance, or breach, of any covenant or warranty of the Company in respect of the Securities of such series contained in this Indenture or in such Securities (other than a covenant or warranty in respect of the Securities of such series a default in whose performance or whose breach is elsewhere in this Section 7.01 specifically dealt with) or established pursuant to the authority granted in the applicable Board Resolution or in the supplemental indenture under which such series of Securities is issued, as the case may be, as contemplated by Section 3.01 hereof, and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee for the Securities of such series, or to the Company and such Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of such series, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or

 

 

 

          (e)     the entry of a decree or order by a court having jurisdiction in the premises adjudging the Company a bankrupt or insolvent, or approving as properly filed, a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under Title 11 of the United States Code as now constituted or hereafter amended (the “Federal Bankruptcy Code”) or any other applicable Federal or State law, or appointing a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or

 

 

 

          (f)     an event of default with respect to any other series of Securities issued or hereafter issued pursuant to this Indenture or as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Debt for money borrowed of the Company in excess of $50,000,000, whether such Debt now exists or shall hereafter be created, shall happen and shall result in such other series of Securities or such Debt, as the case may be, becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such acceleration shall not be rescinded or annulled within a period of 15 days after there has been given, by registered or certified mail, to the Company by the Trustee for such series or to the Company and the Trustee for such series by the Holders of at least 25% in principal amount of the Outstanding Securities of such series, or to the Company and the Trustee by the holders of at least 25% of the outstanding principal amount of such Debt, a written notice specifying such event of default and requiring the Company to cause such acceleration to be rescinded or annulled and stating that such notice is a “Notice of Default” hereunder; provided , however , that, subject to the provisions of Sections 8.01 and 8.02 hereof, such Trustee shall not be charged with knowledge of any such event of default unless a Responsible Officer of such Trustee, in the course of its administration of corporate trusts, shall have such actual knowledge of such event of default, or unless written notice of such event of default shall have been given to such Trustee by the Company, by the Holder or an agent of the Holder of any Securities of such other series or by the holder or an agent of the holder of any such Debt, as the case may be, or by the trustee then acting under this Indenture with respect to such other series of Securities or under any mortgage, indenture or instrument, as the case may

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be, under which such event of default shall have occurred, or by the Holders of at least 25% in principal amount of the Outstanding Securities of such series; or

 

 

 

          (g)     the institution by the Company of proceedings to be adjudicated a bankrupt or insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under the Federal Bankruptcy Code or any other applicable Federal or State law, or the consent by it to the filing of any such petition or to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action; or

 

 

 

          (h)     any other Event of Default provided in or pursuant to the authority granted in the applicable Board Resolution or in the supplemental indenture under which such series of Securities is issued, as the case may be, as contemplated by Section 3.01 hereof.

          Section 7.02. Acceleration of Maturity; Rescission and Annulment.

          If an Event of Default with respect to Securities of any series at the time Outstanding occurs and is continuing, then and in each and every such case, unless the principal of all of the Securities of such affected series shall have already become due and payable, the Trustee for such affected series or the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of such affected series may declare the principal amount (or, if the Securities of such affected series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of all the Securities of such affected series to be due and payable immediately, by a notice in writing to the Company (and to such Trustee if given by Holders), and upon any such declaration of acceleration the same shall become immediately due and payable, anything in this Indenture or in the Securities of such affected series or any Board Resolution relating thereto contained to the contrary notwithstanding.

          At any time after such a declaration of acceleration has been made and before a judgment or decree for payment of the money due has been obtained or entered as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of such affected series, by written notice to the Company and the Trustee for such affected series, may waive all defaults with respect to such affected Securities and rescind and annul such declaration and its consequences if

 

 

 

          (a)     the Company has paid or deposited with the Trustee for the Securities of such affected series a sum sufficient to pay


 

 

 

 

 

          (i)     all overdue installments of interest, if any, on all Securities of such series,

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          (ii)     the principal of (and premium, if any, on) any and all Securities of such series which have become due otherwise than by such declaration of acceleration and interest thereon at the Overdue Rate applicable to such series,

 

 

 

          (iii)    to the extent that payment of such interest is lawful, interest upon any overdue installment of interest at the Overdue Rate applicable to such series,

 

 

 

          (iv)    all sums paid or advanced by such Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel and any other amounts due such Trustee under Section 8.07 hereof; and

 

 

          (b)     all Events of Default with respect to such affected series of Securities, other than the non-payment of the principal of Securities which have become due solely by such acceleration, have been cured or waived as provided in Section 7.13 hereof.

          No such waiver and rescission shall affect any subsequent default or impair any right consequent thereon.

          Section 7.03. Collection of Indebtedness and Suits for Enforcement by Trustee.

          The Company covenants that if

 

 

 

          (a)     default is made in the payment of any installment of interest on any Security of any series when such interest becomes due and payable and such default continues for a period of 30 days,

 

 

 

          (b)     default is made in the payment of all or any part of the principal of (or premium, if any, on) any Security of any series at the Maturity thereof, or

 

 

 

          (c)     default is made in the making or satisfaction of any sinking fund payment or analogous obligation when the same becomes due pursuant to the terms of the Securities of any series,

the Company will, upon demand of the Trustee for the Securities of such affected series, pay to such Trustee, for the benefit of the Holder of any such Security (or Holders of any such affected series of Securities in the case of clause (c) above), the whole amount then due and payable on any such Security (or Securities of any such affected series in the case of clause (c) above) for principal (and premium, if any) and interest, if any, with interest upon the overdue principal (and premium, if any) and, to the extent that payment of such interest shall be legally enforceable, upon any overdue installment of interest, at the Overdue Rate of any such Security (or Securities of any such affected series in the case of clause (c) above); and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel and any other amounts due such Trustee under Section 8.07 hereof;

          If the Company fails to pay such amounts forthwith upon such demand, the Trustee for the Securities of such affected series, in its own name and as trustee of an express trust, may

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institute a judicial proceeding for the collection of the sums so due and unpaid, and may prosecute such proceeding to judgment or final decrees, and may enforce the same against the Company or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated.

          If an Event of Default occurs and is continuing, the Trustee for the Securities of such affected series may in its discretion proceed to protect and enforce its rights and the rights of the Holders of the Securities of such series by such appropriate judicial proceedings as such Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.

          Section 7.04. Trustee May File Proofs of Claim.

          The Trustee for the Securities of any series (irrespective of whether the principal of the Securities of such series shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether such Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise, in case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities of such series or the property of the Company or of such other obligor or their creditors,

 

 

 

 

 

 

 

          (i)      to file and prove a claim or claims for the whole amount of principal (or, if the Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be due and payable with respect to such series pursuant to a declaration in accordance with Section 7.02 hereof), premium, if any, and interest, if any, owing and unpaid in respect of the Securities of such series and to file such other papers or documents as may be necessary or advisable in order to have the claims of such Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel and any other amounts due such Trustee under Section 8.07 hereof) and of the Holders of the Securities of such series allowed in such judicial proceeding, and

 

 

 

 

 

 

 

          (ii)     to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;

and any receiver, assignee, trustee, liquidator, sequestrator (or other similar official) in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee for such series, and in the event that such Trustee shall consent to the making of such payments directly to the Holders, to pay to such Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel, and any other amounts due such Trustee under Section 8.07 hereof.

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          Nothing herein contained shall be deemed to authorize any Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities of any series or the rights of any Holder thereof, or to authorize any Trustee to vote in respect of the claim of any Holder in any such proceeding.

          Section 7.05. Trustee May Enforce Claims without Possession of Securities.

          All rights of action and claims under this Indenture or the Securities of any series may be prosecuted and enforced by the Trustee for the Securities of such series without the possession of any of the Securities of such series or the production thereof in any proceeding relating thereto, and any such proceeding instituted by such Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel and any other amounts due such Trustee under Section 8.07 hereof, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.

          Section 7.06. Application of Money Collected.

          Any moneys collected by the Trustee for the Securities of any series pursuant to this Article shall be applied in the following order, at the date or dates fixed by such Trustee and, in case of the distribution of such money on account of principal (or premium, if any) or interest, if any, upon presentation of the several Securities with respect to which such moneys were collected, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:

 

 

 

          FIRST: To the payment of all amounts due such Trustee under Section 8.07 hereof;

 

 

 

          SECOND: To the payment of the amounts then due and unpaid upon such Securities for principal (and premium, if any) and interest, if any, in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal (and premium, if any) and interest, if any, respectively;

 

 

 

          THIRD: The balance, if any, to the Company.

          Section 7.07. Limitation on Suits.

          No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee (or other similar official), or for any other remedy hereunder, unless

 

 

 

          1)     an Event of Default with respect to such series of Securities shall have occurred and be continuing and such Holder previously shall have given to the Trustee for the Securities of such affected series written notice of default with respect to the Securities of such series and of the continuance thereof;

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          2)     the Holders of not less than 25% in principal amount of the Outstanding Securities of such affected series shall have made written request to such Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;

 

 

 

          3)     such Holder or Holders have offered to such Trustee indemnity reasonably satisfactory to it against the costs, expenses and liabilities to be incurred in compliance with such request;

 

 

 

          4)     such Trustee for 60 days after receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and

 

 

 

          5)     no direction inconsistent with such written request has been given to such Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of such affected series;

it being understood and intended that no one or more Holders of Securities of such affected series shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders of Securities of such affected series, or to obtain or to seek to obtain priority or preference over any other such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all the Holders of the Securities of such affected series.

          Section 7.08. Unconditional Right of Holders to Receive Principal, Premium and Interest.

          Notwithstanding any other provision of this Indenture, the Holder of a Security of any series shall have the right which is absolute and unconditional to receive payment of the principal of (and premium, if any) and (subject to Section 3.08 hereof) interest, if any, on such Security on the respective Stated Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.

          Section 7.09. Restoration of Rights and Remedies.

          If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case the Company, the Trustee and such Holder shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee and such Holder shall continue as though no such proceeding had been instituted.

          Section 7.10. Rights and Remedies Cumulative.

          No right or remedy herein conferred upon or reserved to the Trustee for the Securities of any series or to the Holders of such Securities is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in

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addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

          Section 7.11. Delay or Omission Not Waiver.

          No delay or omission of the Trustee for the Securities of any series or of the Holders of such Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to such Trustee or to such Holders may be exercised from time to time, and as often as may be deemed expedient, by such Trustee or by such Holders, as the case may be.

          Section 7.12. Control by Holders.

          The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee for the Securities of such series or exercising any trust or power conferred on such Trustee; provided, however , that

 

 

 

          (a)     such direction shall not be in conflict with any rule of law or with this Indenture, unduly prejudice the rights of Holders or involve the Trustee in personal liability, and

 

 

 

          (b)     such Trustee may take any other action deemed proper by such Trustee that is not inconsistent with such direction.

          Section 7.13. Waiver of Past Defaults.

          The Holders of not less than a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default hereunder and its consequences, except a default

 

 

 

          (a)     in the payment of the principal of (or premium, if any) or interest, if any, on any Security of such series, or in the payment of any sinking fund installment or analogous obligation with respect to the Securities of such series, or

 

 

 

          (b)     in respect of a covenant or provision hereof that under Article Eleven hereof cannot be modified or amended without the consent of the Holder of each Outstanding Security affected.

          Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.

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          Section 7.14. Undertaking for Costs.

          All parties to this Indenture agree, and each Holder of a Security of any series by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for the Securities of any series for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 7.14 shall not apply to any suit instituted by such Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or interest, if any, on any Security on or after the respective Stated Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date).

          Section 7.15. Waiver of Stay or Extension Laws .

          The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee for the Securities of any series, but will suffer and permit the execution of every such power as though no such law had been enacted.

ARTICLE EIGHT

THE TRUSTEE

          Section 8.01. Certain Duties and Responsibilities.

 

 

 

 

          (a)     Except during the continuance of an Event of Default with respect to a series of Securities,

 

 

 

 

 

          (i)     the Trustee for such series of Securities shall undertake to perform with respect to the Securities of such series such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against such Trustee; and

 

 

 

 

 

          (ii)     in the absence of bad faith on its part, the Trustee for such series may conclusively, with respect to the Securities of such series, rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to such Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to such

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Trustee, such Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).

 

 

 

 

          (b)     In case an Event of Default has with respect to the Securities of a series occurred and is continuing, the Trustee for the Securities of such series shall, with respect to the Securities of such series, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.

 

 

 

          (c)     No provision of this Indenture shall be construed to relieve a Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that

 

 

 

 

          (i)     this Subsection shall not be construed to limit the effect of Subsection (a) of this Section 8.01;

 

 

 

 

 

          (ii)    the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;

 

 

 

 

 

          (iii)   the Trustee for the Securities of any series shall not be liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities of such series pursuant to Section 7.12 hereof relating to the time, method and place of conducting any proceeding for any remedy available to such Trustee, or exercising any trust or power conferred upon such Trustee, under this Indenture; and

 

 

 

 

 

          (iv)   no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.

 

 

 

 

          (d)    Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 8.01.

          Section 8.02. Notice of Defaults.

          Within 90 days after the occurrence of any default hereunder with respect to the Securities of any series which is known to a Responsible Officer of the Trustee of such series or of which such Trustee has been given written notice, the Trustee for such series shall transmit by mail to all Holders of the Securities of such series, as their names and addresses appear in the Securities Register, notice of such default hereunder with respect to such series known to such Trustee, unless such default shall have been cured or waived; provided , however , that, except in

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the case of a default in the payment of principal of (or premium, if any) or interest, if any, on any Security of such series, or in the payment of any sinking fund installment, redemption or analogous obligation, such Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of such Trustee in good faith determine that the withholding of such notice is in the interest of such Holders; and provided , further , that in the case of any default of the character specified in Section 7.01 (d) hereof no such notice to Holders shall be given until at least 30 days after the occurrence thereof. For the purpose of this Section 8.02, the term “ default ” means any event that is, or after notice or lapse of time or both would become, an Event of Default.

          Section 8.03. Certain Rights of Trustee.

          Except as otherwise provided in Section 8.01 hereof:

 

 

 

          (a)     the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, coupon or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;

 

 

 

          (b)     any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Company Request or a Company Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;

 

 

 

          (c)     whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate;

 

 

 

          (d)     the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith in reliance thereon;

 

 

 

          (e)     the Trustee for the Securities of any series shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Holders of the Securities of such series pursuant to this Indenture, unless such Holders shall have offered reasonable indemnity or provided reasonable security to such Trustee, reasonably satisfactory to such Trustee against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction;

 

 

 

          (f)     the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further

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inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the expense of the Company and shall incur no liability of any kind by reason of such inquiry or investigation;

 

 

 

          (g)     the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;

 

 

 

          (h)     except with respect to Section 12.01, the Trustee shall have no duty to inquire as to the performance of the Company with respect to covenants contained in Article 12. In addition, the Trustee shall not be deemed to have knowledge of an Event of Default except (i) any default or Event of Default occurring pursuant to Sections 12.01, 7.01(a) or 7.01(b) or (ii) any default or Event of Default of which the Trustee shall have received written notification or obtained actual knowledge;

 

 

 

          (i)     delivery of reports, information and documents to the Trustee under Section 9.04 is for informational purposes only and the Trustee’s receipt of the foregoing shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of their covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates);

 

 

 

          (j)     in no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action; and

 

 

 

          (k)     the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.

          Section 8.04. Not Responsible for Recitals or Issuance of Securities.

          The recitals contained herein and in the Securities, except the certificates of authentication, shall be taken as the statements of the Company, and the Trustee and any Authenticating Agent assume no responsibility for their correctness. The Trustee and any Authenticating Agent make no representations as to the validity or sufficiency of this Indenture or of the Securities. The Trustee and any Authenticating Agent shall not be accountable for the use or application by the Company of Securities or the proceeds thereof.

          Section 8.05. May Hold Securities.

          The Trustee, any Paying Agent, Securities Registrar, any Authenticating Agent or any other agent of the Company or the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities of any series and, subject to Section 8.08 and Section 8.13

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hereof, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Paying Agent, Securities Registrar, Authenticating Agent or such other agent.

          Section 8.06. Money Held in Trust.

          Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company.

          Section 8.07. Compensation and Reimbursement.

          The Company agrees

 

 

 

          (a)     to pay to the Trustee for the Securities of any series from time to time reasonable compensation for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);

 

 

 

          (b)     except as otherwise expressly provided herein, to reimburse the Trustee for the Securities of any series upon its request for all reasonable expenses, disbursements and advances incurred or made by such Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel and of any Authenticating Agent), except any such expense, disbursement or advance as shall be attributable to its own negligence or bad faith; and

 

 

 

          (c)     to indemnify the Trustee for the Securities of any series and its employees or agents for, and to hold them harmless against, any loss, claim, damage, liability or expense incurred without negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of this trust and performance of their duties hereunder, including the costs and expenses (including fees and disbursements of their counsel) of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties hereunder.

          As security for the performance of the obligations of the Company under this Section 8.07, the Trustee for the Securities of any series shall have a lien prior to the Securities of all series upon all property and funds held or collected by such Trustee as such, except funds held in trust for the payment of principal of (and premium, if any) or interest, if any, on the particular Securities of any series. The provisions of this Section 8.07 shall survive any Trustee succession and the satisfaction and discharge of this Indenture. “Trustee” for purposes of this Section 8.07 shall include any predecessor trustee but the negligence and bad faith of any Trustee shall not affect the rights of any other Trustee under this Section 8.07.

          Section 8.08. Disqualification; Conflicting Interests.

          The Trustee shall comply with Section 310(b) of the Trust Indenture Act; provided , however , that there shall be excluded from the operation of Section 310(b)(i) of the Trust Indenture Act any indenture or indentures under which other securities or certificates of interest

46


or participation in other securities of the Company are outstanding if the requirements for such exclusion set forth in Section 310(b)(i) of the Trust Indenture Act are met.

          Section 8.09. Corporate Trustee Required; Different Trustees for Different Series; Eligibility.

          There shall at all times be a Trustee hereunder for the Securities of each series that shall be a corporation organized and doing business under the laws of the United States of America or of any State or the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000, subject to supervision or examination by Federal or State authority, and having a corporate trust office in the Borough of Manhattan, The City of New York, the State of New York, or in such other city as shall be specified as contemplated by Section 3.01 hereof with respect to any series of Securities, provided , however , that there is a corporation in any such city that is willing to act as Trustee upon reasonable and customary terms. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section 8.09, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. A different Trustee may be appointed by the Company for each series of Securities prior to the issuance of such Securities. If the initial Trustee for any series of Securities is to be other than The Bank of New York, the Company and such Trustee shall, prior to the issuance of such Securities, execute and deliver an indenture supplemental hereto, which shall provide for the appointment of such Trustee as Trustee for the Securities of such series and shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee. If at any time the Trustee for the Securities of any series shall cease to be eligible in accordance with the provisions of this Section 8.09, it shall resign immediately in the manner and with the effect hereinafter specified in this Article Eight.

          Section 8.10. Resignation and Removal; Appointment of Successor.

 

 

 

          (a)     No resignation or removal of the Trustee for the Securities of any series and no appointment of a successor Trustee for the Securities of such series pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee under Section 8.11 hereof.

 

 

 

          (b)     The Trustee, or any trustee or trustees hereafter appointed for the Securities of any series may resign at any time with respect to one or more or all such series of the Securities by giving written notice thereof to the Company. If an instrument of acceptance by a successor Trustee for the Securities of any series shall not have been delivered to the Trustee for such series within thirty days after the giving of such notice of resignation, the resigning Trustee may petition at the expense of the Company any court of competent jurisdiction for the appointment of a successor Trustee for such series.

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          (c)     The Trustee for the Securities of any series may be removed at any time with respect to one or more or all such series by Act of the Holders of a majority in aggregate principal amount of the Outstanding Securities of such one or more series (each voting as a class) delivered to such Trustee and to the Company.

 

 

 

 

          (d)     If at any time:

 

 

 

 

 

          (i)     the Trustee for the Securities of any series shall fail to comply with Section 310(b) of the Trust Indenture Act with respect to the Securities of such series after written request therefor by the Company or by any Holder of Securities of such series who has been a bona fide Holder of a Security of such series for at least six months, or

 

 

 

 

 

          (ii)    such Trustee shall cease to be eligible under Section 8.09 hereof and shall fail to resign after written request therefor by the Company or by any such Holder of Securities, or

 

 

 

 

 

          (iii)   such Trustee shall become incapable of acting with respect to the Securities of such series or shall be adjudged a bankrupt or insolvent or a receiver of such Trustee or of its property shall be appointed or any public officer shall take charge or control of such Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,

then, in any such case, (1) the Company by a Board Resolution may remove the Trustee, or (2) subject to Section 7.14 hereof, any Holder of a Security of such series who has been a bona fide Holder of such Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of such Trustee and the appointment of a successor Trustee for such series.

 

 

 

          (e)     If the Trustee for the Securities of any series shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for the Securities of any series for any cause, the Company, by a resolution of the Board of Directors, shall promptly appoint a successor Trustee for the Securities of such series. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee for the Securities of such series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee for such series and supersede the successor Trustee appointed by the Company. If no successor Trustee for the Securities of such series shall have been so appointed by the Company or such Holders and accepted appointment in the manner hereinafter provided, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee for the Securities of such series.

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          (f)     The Company shall give notice of each resignation and each removal of the Trustee for the Securities of any series and each appointment of a successor Trustee for the Securities of such series by mailing written notice of such event by first-class mail, postage prepaid, to the Holders of the Securities of such series as their names and addresses appear in the Securities Register. Each notice shall include the name of such successor Trustee and the address of its Corporate Trust Office.

          Section 8.11. Acceptance of Appointment by Successor.

          Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee, and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder, subject nevertheless to its lien, if any, provided for in Section 8.07 hereof. Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts.

          In case of the appointment hereunder of a successor Trustee for the Securities of one or more (but not all) series, the Company, the predecessor Trustee and each successor Trustee for the Securities of any applicable series shall execute and deliver an indenture supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor Trustee for the Securities of any series as to which the predecessor Trustee is not retiring shall continue to be vested in the predecessor Trustee, and shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee; it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee.

          No successor Trustee for the Securities of any series shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified under Section 310(b) of the Trust Indenture Act and eligible under Section 8.09.

          Section 8.12. Merger, Conversion, Consolidation or Succession to Business.

          Any corporation into which the Trustee for the Securities of any series may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of such Trustee, shall be the successor of the Trustee for such series hereunder, provided , however , that such corporation shall be, with respect to such series, otherwise qualified and eligible under this Article, without the

49


execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities of any series shall have been authenticated, but not delivered, by the Trustee for such series or an Authenticating Agent for such series, then in office, any successor by merger, conversion or consolidation to such authenticating Trustee or Authenticating Agent, as the case may be, may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee or successor Authenticating Agent had itself authenticated such Securities.

          Section 8.13. Preferential Collection of Claims against Company.

          The Trustee shall comply with Section 311(a) of the Trust Indenture Act with respect to each series of Securities for which it is Trustee.

          Section 8.14. Authenticating Agent.

          The Trustee for a series of securities may appoint an Authenticating Agent for such series that shall be acceptable to the Company, to act on behalf of such Trustee and subject to its direction in connection with the authentication of the Securities of such series. Each Authenticating Agent shall at all times be a corporation organized and doing business under the laws of the United States of America or of any State or the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000, and subject to supervision or examination by Federal or State authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section 8.14 the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.

          Securities of any series authenticated by the Authenticating Agent for the Securities of such series shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee for the Securities of such series. Whenever reference is made in this Indenture to the authentication and delivery of Securities of any series by the Trustee for the Securities of such series or such Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of such Trustee by the Authenticating Agent for such series and a certificate of authentication executed on behalf of such Trustee by such Authenticating Agent.

          Any corporation into which any Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which any Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency business of any Authenticating Agent, shall continue to be the Authenticating Agent with respect to the Securities of all series for which it served as Authenticating Agent without the execution or filing of any paper or any further act on the part of the Trustee for the Securities of such series or such Authenticating Agent.

          Any Authenticating Agent may at any time resign by giving written notice of resignation to the applicable Trustee and to the Company. The Trustee for the Securities of any series may at any time terminate the agency of any Authenticating Agent for such series by giving written

50


notice of termination to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time any Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 8.14, with respect to the Securities of one or more or all series, the Trustee for such series may appoint a successor Authenticating Agent that shall be acceptable to the Company, and upon doing so shall give written notice of such appointment to the Company and shall mail notice of such appointment to all Holders of the Securities of such series as the names and addresses of such Holders appear upon the Securities Register. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers, duties and responsibilities of its predecessor hereunder with like effect as if originally appointed as Authenticating Agent hereunder. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section 8.14.

          The Trustee for the Securities of each series agrees to pay to the Authenticating Agent for the Securities of such series from time to time reasonable compensation for its services, and each such Trustee shall be entitled to be reimbursed for such payments subject to the provisions of Section 8.07 hereof.

ARTICLE NINE

HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY

          Section 9.01. Company to Furnish Trustee Names and Addresses of Holders.

          The Company will furnish or cause to be furnished to the Trustee for the Securities of each series (a) semi-annually, on a date not more than 15 days after each regular record date with respect to an Interest Payment Date, if any, for the Securities of such series, and (b) on semi-annual dates in each year to be determined pursuant to Section 3.01 hereof if the Securities of such series do not bear interest and (c) at such other times as such Trustee may request in writing, within 30 days after receipt by the Company of any such request, a list in such form as such Trustee may reasonably require containing all the information in the possession or control of the Company, or any of its Paying Agents other than such Trustee, as to the names and addresses of the Holders of the Securities of such series, obtained since the date as of which the next previous list, if any, was furnished. Any such list may be dated as of a date not more than 15 days prior to the time such information is furnished or caused to be furnished and need not include information received after such date; provided , however , that as long as such Trustee is the Securities Registrar for such series, no such list shall be required to be furnished.

          Section 9.02. Preservation of Information; Communications to Holders.

 

 

 

          (a)     The Trustee for the Securities of each series shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders of the Securities of such series contained in the most recent list furnished to such Trustee as provided in Section 9.01 hereof or in the Securities Register if such Trustee be the Securities Registrar for such series and the names and addresses of Holders received by such Trustee in its capacity as Paying Agent for such series. Such Trustee may destroy any list furnished to it as provided in Section 9.01 hereof upon receipt of a new list so furnished.

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          (b)     If three or more Holders of the Securities of any series (hereinafter referred to as “ applicants ”) apply in writing to the Trustee for such series or the Trustee for any other series, furnish to such Trustee reasonable proof that each such applicant has owned a Security of a series for a period of at least six months preceding the date of such application, and such application states that the applicants desire to communicate with other Holders of any series with respect to their rights under this Indenture or under the Securities of any series and is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then such Trustee shall, within five Business Days after the receipt of such application, at its election, either

 

 

 

 

 

 

          (i)     afford such applicants access to the information preserved at the time by such Trustee in accordance with Subsection (a) of this Section 9.02, or

 

 

 

 

 

 

          (ii)    inform such applicants as to the approximate number of such Holders whose names and addresses appear in the information preserved at the time by such Trustee in accordance with Subsection (a) of this Section 9.02, and as to the approximate cost of mailing to such Holders the form of proxy or other communication, if any, specified in such application.

          If such Trustee shall elect not to afford such applicants access to such information, such Trustee shall upon the written request of such applicants, mail to each Holder to whom the applicant desires to communicate whose name and address appear in the information preserved at the time by such Trustee in accordance with Subsection (a) of this Section 9.02, a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to such Trustee of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing, unless within five days after such tender, such Trustee shall mail to such applicants and file with the Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of such Trustee, such mailing would be contrary to the best interests of such Holders or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. If the Commission, after opportunity for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any of such objections or if, after the entry of an order sustaining one or more of such objections, the Commission shall find, after notice and opportunity for hearing, that all the objections so sustained have been met and shall enter an order so declaring, such Trustee shall mail copies of such material to all such Holders with reasonable promptness after the entry of such order and the renewal of such tender, otherwise such Trustee shall be relieved of any obligation or duty to such applicants respecting their application.

 

 

 

          (c)     Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee, nor any agent of the Company or the Trustee, shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders in accordance with Subsection (b) of this Section 9.02, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under Subsection (b) of this Section 9.02.

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          Section 9.03. Reports by Trustee.

          Within 60 days after the first May 15 that occurs not less than 60 days following the first date of issuance of the Securities of any series under this Indenture and within 60 days after May 15 in every year thereafter, the Trustee for the Securities of such series shall transmit by mail to all Holders of such series, as their names and addresses appear in the Securities Register, a brief report dated as of such May 15 required by, and in compliance with the provisions of, Section 313(a) of the Trust Indenture Act and at such other times in such manner such other reports as may be required by Section 313 of the Trust Indenture Act in each case with respect to the Securities of such series. A copy of each such report shall, at the time of such transmission to such Holders, be filed by such Trustee with each stock exchange upon which such Securities are listed and also with the Commission. The Company will notify such Trustee when such Securities are listed on any stock exchange.

          Section 9.04. Reports by Company.

          The Company will

 

 

 

          (a)     file with the Trustee for the Securities of each series, within 15 days after the Company is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) that the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not required to file information, documents or reports pursuant to either of said Sections, then it will file with such Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports that may be required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations;

 

 

 

          (b)     file with such Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations; and

 

 

 

          (c)     transmit by mail to all Holders, as their names and addresses appear in the Securities Register, within 30 days after the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company pursuant to paragraphs (a) and (b) of this Section 9.04 as may be required by rules and regulations prescribed from time to time by the Commission.

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ARTICLE TEN

CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

          Section 10.01. Company May Consolidate, etc., Only on Certain Terms.

          The Company shall not consolidate with or merge into any other Person or convey, transfer or lease all or substantially all of its properties and assets to any Person or group of Persons and the Company shall not permit any Person to consolidate with or merge into the Company or convey, transfer or lease all or substantially all of its properties and assets to the Company, unless:

 

 

 

          1)     in case the Company shall consolidate with or merge into another Person or convey, transfer or lease all or substantially all of its properties and assets to any Person, the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance, transfer or lease, all or substantially all of the properties and assets of the Company, shall be a corporation, partnership or trust organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of (and premium, if any) and interest on all the Securities and the performance of every covenant of this Indenture on the part of the Company to be performed or observed;

 

 

 

          2)     immediately after giving effect to such transaction, and treating any indebtedness which becomes an obligation of the Company or a Subsidiary as a result of such transaction as having been incurred by the Company or such Subsidiary at the time of such transaction, no Event of Default, and no event that, after notice or lapse of time, or both, would become an Event of Default, shall have occurred and be continuing; and

 

 

 

          3)     the Company has delivered to such Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.

          The provisions of this Section 10.01 shall not be applicable to a merger or consolidation in which the Company is the surviving corporation.

          Section 10.02. Successor Corporation Substituted.

          Upon any consolidation by the Company with or merger by the Company into any other Person or any conveyance, transfer or lease of all or substantially all of the properties and assets of the Company in accordance with Section 10.01, the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been

54


named as the Company herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities.

ARTICLE ELEVEN

SUPPLEMENTAL INDENTURES

         Section 11.01 . Supplemental Indentures without Consent of Holders.

         Without the consent of any Holders, the Company, when authorized by or pursuant to the authority granted in a resolution of its Board of Directors, and the Trustee for the Securities of any or all series, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to such Trustee, for any of the following purposes:

 

 

 

          (a)     to evidence the succession of another corporation to the Company, and the assumption by any such successor of the covenants of the Company herein and in the Securities contained: or

 

 

 

          (b)     to add to or modify the covenants or Events of Default of the Company, for the benefit of the Holders of the Securities of any or all series, to convey, transfer, assign, mortgage or pledge any property to or with such Trustee or to surrender any right or power herein conferred upon the Company, and to modify or eliminate any of the provisions of this Indenture, provided that any such modification or elimination shall become effective only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision; or

 

 

 

          (c)     to establish the form or terms of the Securities of any series as permitted by Section 2.01 or Section 3.01 hereof; or

 

 

 

          (d)     to add to or change any of the provisions of this Indenture as is necessary or advisable to facilitate the issuance of Securities of any series in bearer form, registrable or nonregistrable as to principal and with or without interest coupons, and to provide for exchangeability of such Securities with the Securities of the same series issued hereunder in fully registered form and to make all appropriate changes for such purpose, or to permit or facilitate the issuance of Securities in uncertificated form; or

 

 

 

          (e)     to cure any ambiguity, to correct or supplement any provision herein that may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture that shall not adversely affect the interests of the Holders in any material respect; or

 

 

 

          (f)     to add to or change any of the provisions of this Indenture to provide that bearer Securities may be registrable as to principal, to change or eliminate any restrictions on the payment of principal of, or premium, if any, or interest on bearer Securities or on the delivery of bearer Securities, or to permit bearer Securities to be issued in exchange for bearer Securities of other authorized denominations, provided any such action shall not adversely affect the interests of the Holders of bearer Securities of

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any series or any related coupons in any material respect unless such amendment is required to comply with the Bearer Rules; or

 

 

 

          (g)     to evidence and provide for the acceptance of appointment hereunder of a Trustee other than The Bank of New York, as Trustee for a series of Securities and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 8.09 hereof;

 

 

 

          (h)     to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series or to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 8.11 hereof;

 

 

 

          (i)     to evidence any changes to Section 8.10 permitted by the terms thereof;

 

 

 

          (j)     to add to or modify the provisions hereof as may be necessary or desirable to provide for the denomination of Securities in Foreign Currencies that shall not adversely affect the interests of the Holders of the Securities in any material respect;

 

 

 

          (k)     to supplement any of the provisions of this Indenture to such extent as is necessary to permit or facilitate the defeasance and discharge of any series of Securities pursuant to Section 6.01 or 6.02, provided , however , that any such action shall not adversely affect the interests of the Holders of Securities of such series or any other series of Securities in any material respect;

 

 

 

          (l)     to add to, change or eliminate any of the provisions of this Indenture; provided , that any such addition, change or elimination (i) shall become effective only when no Security of any series entitled to the benefits of such provision and issued prior to the execution of such supplemental indenture is outstanding or (ii) shall not apply to any outstanding Security;

 

 

 

          (m)     to add to or change or eliminate any provision of this Indenture as shall be necessary or desirable in accordance with any amendments to the Trust Indenture Act, provided such action shall not adversely affect the interests of the holders of the Securities of any series or any appurtenant coupons in any material respects; or

 

 

 

          (n)     to prohibit the authentication and delivery of additional series of Securities.

         Section 11.02. Supplemental Indentures with Consent of Holders.

         Subject to Sections 7.12 and 7.13 hereof; with the consent of the Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of each series affected thereby, by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or

56


eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of the Securities of such series under this Indenture; provided , however , that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,

 

 

 

          (a)     change the Stated Maturity of the principal of, or any installment of interest on, any Security, or reduce the principal amount thereof or the interest thereon, or any premium payable on the redemption thereof, or change the Place of Payment, or the coin or currency in which any Security or the interest, if any, thereon is payable, or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon an acceleration of the Maturity thereof or adversely affect the right of repayment, if any, at the option of the Holder, or reduce the amount of, or postpone the date fixed for, any payment under the sinking fund for any Security, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or

 

 

 

          (b)     reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or

 

 

 

          (c)     modify any of the provisions of this Section 11.02 or Section 7.13 hereof, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Security affected thereby, or

 

 

 

          (d)     subordinate the indebtedness evidenced by the Securities to any other indebtedness of the Company.

         A supplemental indenture that changes or eliminates any covenant or other provision of this Indenture that has been expressly included solely for the benefit of the Securities of one or more particular series, or that modifies the rights of the Holders of the Securities of one or more such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of the Securities of any other series.

         It shall not be necessary for any Act of Holders under this Section 11.02 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.

         Section 11.03. Execution of Supplemental Indentures.

         In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article Eleven or the modifications thereby of the trusts created by this Indenture, the Trustee for the Securities of any series shall be provided with, and (subject to Section 8.01 hereof) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. Such

57


Trustee may, but shall not be obligated to, enter into any such supplemental indenture that affects such Trustee’s own rights, liabilities, duties or immunities under this Indenture or otherwise.

         Section 11.04. Notice of Supplemental Indenture.

         Promptly after the execution by the Company and the appropriate Trustee of any supplemental indenture pursuant to Section 11.02 hereof, the Company shall transmit by mail to all Holders of any series of the Securities affected thereby, as their names and addresses appear in the Securities Register, a notice setting forth in general terms the substance of such supplemental indenture.

         Section 11.05. Effect of Supplemental Indentures.

         Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith but only with respect to the Securities of each series affected by such supplemental indenture, and such supplemental indenture shall form a part of this Indenture for all purposes with respect to such series; and every Holder of Securities of any such series theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.

         Section 11.06. Conformity with Trust Indenture Act.

         Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect.

         Section 11.07. Reference in Securities to Supplemental Indentures.

         Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee for the Securities of such series, bear a notation in form approved by such Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities so modified as to conform, in the opinion of such Trustee and the Board of Directors, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by or on behalf of such Trustee in exchange for Outstanding Securities of the same series.

ARTICLE TWELVE

COVENANTS

         Section 12.01. Payment of Principal, Premium and Interest.

         The Company will duly and punctually pay the principal of, premium, if any, and interest, if any, on the Securities of each series in accordance with the terms of such Securities established as contemplated by Section 3.01 of this Indenture.

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         Section 12.02. Maintenance of Office or Agency.

         The Company will maintain, in each Place of Payment for any series of Securities, an office or agency where Securities of any series may be presented or surrendered for payment, where Securities of such series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of such series and this Indenture may be served; provided , however , that at the option of the Company payment of interest may be made (subject to collection) by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register. With respect to the Securities of any series, such office or agency and each Place of Payment shall be as specified as contemplated by Section 3.01. In the absence of any such provisions with respect to Securities of any series, (i) the Place of Payment for such Securities shall be in the city in which the Corporate Trust Office of the Trustee for such series shall be located and (ii) such office or agency in such Place of Payment shall initially be the Corporate Trust Office of such Trustee for such series. The Company will give prompt written notice to the Trustee of any change in the location of any such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee for the Securities of each series with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of such Trustee, and the Company hereby appoints such Trustee for such series of Securities its agent to receive all such presentations, surrenders, notices and demands with respect to the Securities of such series.

         The Company may also from time to time designate one or more other offices or agencies (in or outside the Place of Payment) where the Securities of one or more series may be presented or surrendered for any or all of such purposes specified above, and may from time to time rescind such designation; provided , however , that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for such purposes.

         Section 12.03. Money for Securities Payments to Be Held in Trust.

         If the Company shall at any time act as its own Paying Agent, it will, on or before each due date of the principal of (and premium, if any) or interest, if any, on, any of the Securities of any series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal (and premium, if any) or interest, if any, so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and will promptly notify the Trustee of such series of its failure so to act.

         Whenever the Company shall have one or more Paying Agents, it will, on or before each due date of the principal of (and premium, if any) or interest, if any, on, any Securities of any series, deposit with a Paying Agent for such series a sum sufficient to pay the principal (and premium, if any) or interest, if any, so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal (and premium, if any), or interest, if any, and (unless such Paying Agent is the Trustee for such series) the Company will promptly notify such Trustee at its Corporate Trust Office of its failure so to act.

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         The Company will cause each Paying Agent for the Securities of any series other than the Trustee for such series to execute and deliver to such Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section 12.03, that such Paying Agent will

 

 

 

          (a)     hold all sums held by it for the payment of the principal of, premium, if any, or interest, if any, on the Securities of such series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;

 

 

 

          (b)     give such Trustee notice of any default by the Company (or any other obligor upon the Securities of such series) in the making of any payment of principal, premium, if any, or interest, if any; and

 

 

 

          (c)     at any time during the continuance of any such default, upon the written request of such Trustee, forthwith pay to such Trustee all sums so held in trust by such Paying Agent.

         The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture with respect to Securities of any series or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee for the Securities of the appropriate series all sums held in trust by the Company or such Paying Agent, such sums to be held by such Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to such Trustee, such Paying Agent shall be released from all further liability with respect to such money.

         Section 12.04. Payment of Taxes and Other Claims.

         The Company will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (a) all taxes, assessments and governmental charges levied or imposed upon the Company or upon the income, profits or property of the Company, and (b) all lawful claims for labor, materials and supplies which, if unpaid, might by law become a lien upon the property of the Company; provided , however , that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings.

         Section 12.05. Statement as to Compliance.

         The Company will file with the Trustee within four months after the close of each fiscal year (which, until the Company shall otherwise notify the Trustee, shall be deemed to be the calendar year) a brief certificate, which need not comply with Section 1.02 hereof, from the principal executive, financial or accounting officer of the Company as to his or her knowledge of the Company’s compliance with all conditions and covenants under this Indenture (without regard to any period of grace or requirement of notice provided in this Indenture).

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         Section 12.06. Corporate Existence.

         Subject to Article Ten hereof, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, rights (charter and statutory) and franchises; provided , however , that the Company shall not be required to preserve any such right or franchise if the Company shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and that the loss thereof is not disadvantageous in any material respect to the Holders of the Securities of any series.

         Section 12.07. Restrictions on the Creation of Mortgages and Liens.

 

 

 

 

          (a)     The Company will not at any time directly or indirectly create, assume, incur, or suffer to be created, assumed, or incurred or to exist any mortgage, pledge, encumbrance or lien of any kind (except for any bona fide option or agreement to sell) (a “Lien”) upon (1) any shares of capital stock owned by the Company of any of the Principal Subsidiaries (other than directors’ qualifying shares) or (2) any shares of capital stock owned by the Company of a Subsidiary of the Company that owns, directly or indirectly, capital stock of any of the Principal Subsidiaries (other than directors’ qualifying shares) without making effective provision whereby the Securities (and any other indebtedness of the Company or such Subsidiary entitled to the benefit of a covenant similar to the covenant contained in this Section 12.07, subject to applicable priorities of payment) will be secured by such Lien equally and ratably with any and all other obligations thereby secured, so long as any such other obligations and indebtedness shall be so secured; provided , however , that notwithstanding the foregoing, the Company may incur or suffer to be incurred or to exist upon such capital stock (A) Liens for taxes, assessments or other governmental charges or levies which are not yet due or are payable without penalty or of which the amount, applicability or validity is being contested by the Company in good faith by appropriate proceedings, or (B) the Liens of any judgment, if such judgment shall not have remained undischarged, or unstayed on appeal or otherwise, for more than 60 days.

 

 

 

 

          (b)     The provisions of Section 12.07(a) shall cease to be binding on the Company with respect to any series of the Securities to which such provisions are applicable and shall be of no further force and effect from and after the ninety-first day after the date of the deposit referred to in paragraph (1) below; provided that the following conditions shall have been satisfied:

 

 

 

 

 

          (1)     the Company has deposited or caused to be deposited with the Trustee irrevocably as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of all Outstanding Securities of such series, with reference to this Section 12.07(b), (i) money in an amount in the currency in which the Securities are denominated or (ii) U.S. Government Obligations in the case of Securities denominated in Dollars or obligations issued or guaranteed by the government which issued the currency in which the Securities are denominated in the case of Securities denominated in a Foreign Currency, which through the payment of interest and principal in respect thereof in accordance with their terms will provide not later than the opening of business

61


 

 

 

 

 

on the due date of any payment referred to in this paragraph (1) money in an amount in the currency in which the Securities are denominated, or (iii) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge the entire indebtedness on all Outstanding Securities or such series for principal (and premium, if any) and interest, if any to the Stated Maturity as such principal (and premium, if any) or interest, if any, becomes due and payable in accordance with the terms of this Indenture and the Securities of such series; provided , however , the Company shall not make or cause to be made the deposit provided by this clause (1) unless the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that there will not occur any violation of the Investment Company Act of 1940, as amended, on the part of the Company, the trust funds representing such deposit or the Trustee as a result of such deposit and related exercise of the Company’s option under this Section 12.07(b);

 

 

 

 

 

          (2)     the Company has paid or caused to be paid all other sums payable hereunder by the Company in connection with the Outstanding Securities of such series, including all fees and expenses of the Trustee for such series; and

 

 

 

 

 

          (3)     the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the foregoing relief from the covenant contained in Section 12.07(a) have been complied with.

         Subject to the provisions of Section 6.05 hereof, all money, U.S. Government Obligations and other government obligations deposited with the Trustee for the Securities of any series pursuant to paragraph (1) of this Subsection and all money received by the Trustee in respect of U.S. Government Obligations and such other government obligations deposited with the Trustee for the Securities of any series pursuant to said paragraph (1) shall be held in trust and applied by the Trustee, in accordance with the provisions of the Securities of such series and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine to the Persons entitled thereto, of the principal of (and premium, if any) and interest, if any, on the Securities of such series; but such money need not be segregated from other funds except to the extent required by law. Compliance with the provisions of this Section 12.07(b) shall not relieve the Company of its obligation to make payments of principal of and interest, if any, on the Securities of such series or, except with respect to Section 12.07(a), of any other of its obligations under this Indenture and the Securities of such series.

         The Trustee shall deliver or pay to the Company from time to time upon Company request any U.S. Government Obligations, other government obligations or money held by it as provided in this Section 12.07(b) which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are then in excess of the amount thereof which then would have been required to be deposited for the purpose for which such U.S. Government Obligations, other government obligations or money were deposited or received.

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         Section 12.08. Permit No Vacancy in Office of Trustee.

         The Company, whenever necessary to avoid or fill a vacancy in the office of the Trustee for the Securities of any series, will appoint, in the manner provided in Section 8.10 hereof, a Trustee for the Securities of such series, so that there shall at all times be a Trustee for the Securities of every series hereunder.

         Section 12.09. Other Instruments and Acts.

         The Company will, as necessary or upon the request of the Trustee for the Securities of any series, execute and deliver such further instruments and do such further acts as may reasonably be necessary or proper to carry out more effectually the purposes of this Indenture.

         Section 12.10. Waiver.

         Without limitation of the rights of the Holders and the Company with respect to waivers and amendments set forth in Sections 7.13 and 11.02, the Company may omit in any particular instance to comply with a covenant or provision hereof which non-compliance could constitute a default hereunder (other than (i) a covenant or provision with respect to the payment of the principal of (or premium, if any) or interest, if any, on any Security of any series, or in payment of any sinking fund installment or analogous obligation with respect to the Securities of such series or (ii) a covenant or condition which under Article Eleven hereof cannot be modified or amended without the consent of the Holder of each Outstanding Security affected), if before or after the time for such compliance the Holders of at least a majority in principal amount of the Securities at the time Outstanding of any series affected by the omission shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or provision except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee of each such series in respect of any such covenant or provision shall remain in full force and effect.

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          IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed all as of the day and year first above written.

 

 

 

 

AMERICAN EXPRESS COMPANY

 

 

 

By:

(SIGNATURE)

 

 

 

 

 

Title: Treasurer

 

 

 

THE BANK OF NEW YORK, as Trustee

 

 

 

 

By:

 

 

 

 

 

 

Title:

Signature Page to the
Senior Indenture


          IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed all as of the day and year first above written.

 

 

 

 

AMERICAN EXPRESS COMPANY

 

 

 

By:

 

 

 

 

 

 

Title: Treasurer

 

 

 

THE BANK OF NEW YORK, as Trustee

 

 

 

 

By:

(SIGNATURE)

 

 

 

 

 

Title: Assistant Vice President

Signature Page to the
Senior Indenture


Exhibit 5

[LETTERHEAD OF AMERICAN EXPRESS COMPANY]

October 30, 2009

Securities and Exchange Commission
100 F Street, N.E.
Washington, D.C. 20549

 

 

 

 

Re:

American Express Company

 

 

Registration Statement on Form S-3

Dear Sirs:

          I am Executive Vice President and General Counsel of American Express Company (the “Registrant”), a New York corporation, and I have represented the company in connection with the Registration Statement on Form S-3 (the “Registration Statement”) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the offering from time to time, as set forth in the prospectus contained in the Registration Statement (the “Prospectus”), and as to be set forth in one or more supplements to the Prospectus (each such supplement, a “Prospectus Supplement”) of the Registrant’s (i) debt securities (the “Debt Securities”), (ii) preferred shares, par value $1.66 2/3 per share (the “Preferred Shares”), (iii) Preferred Shares represented by depositary shares (the “Depositary Shares”), (iv) common shares, par value $0.20 per share (the “Common Shares”), (v) warrants to purchase Debt Securities, Preferred Shares, Common Shares or equity securities issued by another entity (the “Securities Warrants”), (vi) warrants the value of which is related to the value of various currencies (the “Currency Warrants”) and (vii) other warrants the value of which is related to various indices or other items (the “Other Warrants”). The Securities Warrants, Currency Warrants and Other Warrants are herein collectively referred to as the “Warrants”, and the Warrants, together with the Debt Securities, the Preferred Shares, the Depositary Shares and the Common Shares are collectively referred to as the “Securities”. Any Preferred Shares may be convertible into or exchangeable for Common Shares, and any Debt Securities may be convertible into or exchangeable for other Debt Securities, Common Shares or Preferred Shares.

          The Securities being registered under the Registration Statement will have an indeterminate aggregate initial offering price and will be offered on a continuous or delayed basis pursuant to the provisions of Rule 415 under the Securities Act.

          The Debt Securities will be issued in one or more series and may be either senior debt securities (the “Senior Securities”) issued pursuant to an indenture dated August 1, 2007 between the Registrant and The Bank of New York Mellon (formerly known as The Bank of New York), as Trustee (as amended or supplemented, the “Senior Indenture”) or subordinated debt securities (the “Subordinated Securities”) issued pursuant to an indenture dated August 1, 2007 between


the Registrant and The Bank of New York Mellon, as Trustee (as amended or supplemented, the “Subordinated Indenture”). The Senior Indenture and the Subordinated Indenture are herein each referred to as an “Indenture” and collectively referred to as the “Indentures”. The Securities Warrants will be issued under one or more securities warrant agreements (each, a “Securities Warrant Agreement”), the Currency Warrants will be issued under one or more currency warrant agreements (each, a “Currency Warrant Agreement”) and the Other Warrants will be issued under one or more warrant agreements (each, an “Other Warrant Agreement” and, together with the Securities Warrant Agreements and the Currency Warrant Agreements, the “Warrant Agreements”) each to be between the Registrant and a financial institution identified therein as warrant agent (each, a “Warrant Agent”). The Depositary Shares will be issued under one or more Deposit Agreements (the “Deposit Agreements”), each to be between the Registrant and a financial institution identified therein as the depositary (the “Depositary”). The Indentures are included as exhibits to the Registration Statement.

          I or members of my staff have examined the originals or copies certified or otherwise identified to our satisfaction, of such corporate records and documents relating to the Registrant, including resolutions of the Board of Directors of the Registrant (the “Resolutions”) authorizing the Indentures, the Warrant Agreements and the issuance, offering and sale of the Securities, and have made such other inquiries of law and fact as we have deemed necessary or relevant as the basis of my opinion hereinafter expressed.

          Based on the foregoing, and subject to the qualifications and limitations stated herein, I am of the opinion that:

 

 

 

1.      The Debt Securities have been duly authorized and, (i) when the final terms thereof have been duly established and approved and when duly executed by the Registrant, in each case pursuant to the authority granted in the Resolutions, (ii) upon the execution and delivery by the Registrant and the Trustee of, if required by the Indentures, an applicable supplement to the applicable Indenture, and (iii) when the Debt Securities have been duly executed by the Registrant and authenticated by the Trustee and issued in accordance with the terms of the applicable Indenture or Warrant Agreement, as the case may be, and delivered to and paid for by the purchasers thereof, the Debt Securities will constitute valid and legally binding obligations of the Registrant entitled to the benefits of the applicable Indenture.

 

 

 

2.      The Warrants have been duly authorized and, (i) upon execution and delivery of a Warrant Agreement relating to the Warrants and (ii) when the final terms thereof have been duly established and approved and when duly executed by the Registrant, in each case pursuant to the authority granted in the Resolutions, and countersigned by the applicable Warrant Agent in accordance with the applicable Warrant Agreement and delivered to and paid for by the purchasers thereof, the Warrants will constitute valid and legally binding obligations of the Registrant.

 

 

 

3.      The Preferred Shares have been duly authorized and, (i) when the final terms thereof have been duly established and approved by the Board of Directors of the Registrant and certificates representing such shares have been duly executed by the

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Registrant, in each case pursuant to the authority granted in the Resolutions, and delivered against payment therefor, upon exercise of any series of Securities Warrants or upon conversion or exchange of any series of convertible Debt Securities, in accordance with the terms of the applicable Debt Securities, Indenture or Warrant Agreement, as the case may be, and (ii) when all corporate action necessary for issuance of such shares has been taken, including the filing with the Secretary of State of the State of New York of the applicable Certificate of Amendment of the Certificate of Incorporation of the Registrant, such Preferred Shares will be validly issued, fully paid and non-assessable.

 

 

 

4.      The Depositary Shares have been duly authorized and, (i) upon due authorization, execution and delivery of a Deposit Agreement, (ii) when the final terms of the Depositary Shares have been duly established and approved, in each case pursuant to the authority granted in the Resolutions, (iii) when the depositary receipts representing the Depositary Shares (the “Depositary Receipts”) have been duly executed by the Depositary and delivered to and paid for by the purchasers thereof, and (iv) when all corporate action necessary for issuance of such Depositary Shares and the underlying Preferred Shares has been taken, including the filing with the Secretary of State of the State of New York of the applicable Certificate of Amendment of the Certificate of Incorporation of the Registrant, such Depositary Shares will be validly issued and will entitle the holders thereof to the rights specified in the Depositary Receipts and the Deposit Agreement.

 

 

 

5.      The Common Shares to be sold by the Registrant have been duly authorized and, when issued pursuant to the authority granted in the Resolutions and delivered against payment therefor or upon conversion or exchange of any series of convertible or exchangeable Debt Securities or Preferred Shares in accordance with the terms of the applicable Debt Securities, Indenture, Preferred Shares or Warrant Agreement, as the case may be, such Common Shares will be validly issued, fully paid and non-assessable.

          My opinion assumes that (i) the Registrant will duly authorize, approve and establish the final terms and conditions of the Securities in the manner contemplated in the Resolutions, which terms will conform to the descriptions thereof in the Registration Statement and will not violate any applicable law, result in a default under or breach of any agreement or instrument binding upon the Registrant or violate any requirement or restriction imposed by any court or governmental body having jurisdiction over the Registrant; (ii) the Securities will be offered, issued, sold and delivered in compliance with applicable law and any requirements therefor set forth in any corporate action authorizing such Securities and in the manner contemplated by the Registration Statement; (iii) the Securities will be offered, sold and delivered to, and paid for by, the purchasers thereof at the price specified in, and in accordance with the terms of, an agreement or agreements duly authorized, executed and delivered by the parties thereto, which price, in the case of Common Shares or Preferred Shares, shall not be less than the par value of such Common Shares or Preferred Shares; (iv) certificates, if required, representing the Securities will be duly executed and delivered and, to the extent required by any applicable agreement, duly authenticated and countersigned; and (v) any Warrant Securities will be issued in compliance with the provisions of the Commodity Exchange Act, as amended, and any similar applicable state laws, or the rules, regulations, or interpretations of the Commodity Futures

3


Trading Commission, or similar state authorities, as may be applicable to any Warrant Securities whose principal and/or interest payments will be determined by reference to one or more currency exchange rates, commodity prices, equity indices, or other variable factors.

          The opinions set forth in paragraphs 1, 2, and 4 above are subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting the enforcement of creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law), an implied covenant of good faith and fair dealing and provisions of law that require that a judgment for money damages rendered by a court in the United States be expressed only in United States dollars.

          The opinion set forth in paragraph 1 above assumes that each series of Debt Securities will be issued with an original aggregate principal amount (or in the case of Debt Securities issued at original issue discount, an aggregate issue price) of $2,500,000 or more.

          I am admitted to the practice of law only in the State of New York and do not purport to be expert in the laws of any jurisdiction other than the state of New York and United States federal law.

          I hereby consent to the use of the opinion as an exhibit to the Registration Statement and to the use of my name under the heading “Legal Matters” in the Prospectus and in any prospectus supplement relating thereto. In giving this consent, I do not thereby admit that I am an expert with respect to any part of the Registration Statement, including this exhibit, within the meaning of the term “expert” as used in the Securities Act or the rules and regulations of the Commission thereunder.

 

 

 

Very truly yours,

 

/s/   Louise M. Parent          

 

Louise M. Parent

 

Executive Vice President

 

and General Counsel

4



Exhibit 23(b)


CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in this Registration Statement on Form S-3 of our report dated February 26, 2009 relating to the consolidated financial statements and the effectiveness of internal control over financial reporting, which appears in American Express Company's 2008 Annual Report to Shareholders, which is incorporated by reference in American Express Company’s Annual Report on Form 10-K for the year ended December 31, 2008. We also consent to the reference to us under the heading “Experts” in such Registration Statement.


/s/ PricewaterhouseCoopers LLP 

PricewaterhouseCoopers LLP
New York, NY
October 30, 2009

 


Exhibit 24(a)

POWER OF ATTORNEY

          KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carol V. Schwartz and Louise M. Parent, and each of them severally, as his or her true and lawful agent, with power to act separately and with full and unqualified authority to delegate any or all of the powers granted herein to any person or persons selected by said agent(s), to execute in his or her name, place, and stead in capacity as a director or officer of American Express Company, a registration statement covering primary and secondary offerings of debt securities, preferred shares, depositary shares, common shares and warrants of American Express Company, any and all amendments to such registration statement, with exhibits thereto and all instruments necessary or incidental in connection therewith, and to file the same with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said agents, or any person or persons to whom said agent(s) have delegated the foregoing powers, may do or cause to be done by virtue hereof.

          Except as otherwise specifically provided herein, the power of attorney granted herein shall not in any manner revoke in whole or in part any power of attorney that each person whose signature appears below has previously executed. This power of attorney shall not be revoked by any subsequent power of attorney each person whose signature appears below may execute, unless such subsequent power specifically refers to this power of attorney or specifically states that the instrument is intended to revoke all prior general powers of attorney or all prior powers of attorney.

          CAUTION TO THE PRINCIPAL: Your Power of Attorney is an important document. As the “principal,” you give the person whom you choose (your “agent”) authority to spend your money and sell or dispose of your property during your lifetime without telling you. You do not lose your authority to act even though you have given your agent similar authority.

          When your agent exercises this authority, he or she must act according to any instructions you have provided or, where there are no specific instructions, in your best interest. “Important Information for the Agent” at the end of this document describes your agent’s responsibilities.

          Your agent can act on your behalf only after signing the Power of Attorney before a notary public.

          You can request information from your agent at any time. If you are revoking a prior Power of Attorney by executing this Power of Attorney, you should provide written notice of the revocation to your prior agent(s) and to the financial institutions where your accounts are located.

          You can revoke or terminate your Power of Attorney at any time for any reason as long as you are of sound mind. If you are no longer of sound mind, a court can remove an agent for acting improperly.

          Your agent cannot make health care decisions for you. You may execute a “Health Care Proxy” to do this.

          The law governing Powers of Attorney is contained in the New York General Obligations Law, Article 5, Title 15. This law is available at a law library, or online through the New York State Senate or Assembly websites, www.senate.state.ny.us or www.assembly.state.ny.us.

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          If there is anything about this document that you do not understand, you should ask a lawyer of your own choosing to explain it to you.

IMPORTANT INFORMATION FOR THE AGENT: When you accept the authority granted under this Power of Attorney, a special legal relationship is created between you and the principal. This relationship imposes on you legal responsibilities that continue until you resign or the Power of Attorney is terminated or revoked. You must:

 

 

(1)

act according to any instructions from the principal, or, where there are no instructions, in the principal’s best interest;

 

 

(2)

avoid conflicts that would impair your ability to act in the principal’s best interest;

 

 

(3)

keep the principal’s property separate and distinct from any assets you own or control, unless otherwise permitted by law;

 

 

(4)

keep a record or all receipts, payments, and transactions conducted for the principal; and

 

 

(5)

disclose your identity as an agent whenever you act for the principal by writing or printing the principal’s name and signing your own name as “agent” in either of the following manner: (Principal’s Name) by (Your Signature) as Agent, or (your signature) as Agent for (Principal’s Name).

          You may not use the principal’s assets to benefit yourself or give major gifts to yourself or anyone else unless the principal has specifically granted you that authority in this Power of Attorney or in a Statutory Major Gifts Rider attached to this Power of Attorney. If you have that authority, you must act according to any instructions of the principal or, where there are no such instructions, in the principal’s best interest. You may resign by giving written notice to the principal and to any co-agent, successor agent, monitor if one has been named in this document, or the principal’s guardian if one has been appointed. If there is anything about this document or your responsibilities that you do not understand, you should seek legal advice.

          Liability of agent:

          The meaning of the authority given to you is defined in New York’s General Obligations Law, Article 5, Title 15. If it is found that you have violated the law or acted outside the authority granted to you in the Power of Attorney, you may be liable under the law for your violation.

[ Signature Pages Follow ]

 


SIGNATURE OF PRINCIPAL AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on September 21 , 2009.

 

 

 

 

   -S- DANIEL F. AKERSON

    Director

 

 

 

 

    DANIEL F. AKERSON

 

State of New York )

County of New York ) ss.:

On the 21 day of September in the year before me, the undersigned, personally appeared Daniel F. Akerson , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

SIGNATURE OF AGENT AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on September 22 , 2009.

 

 

 

 

   -S- LOUISE M. PARENT

    Executive Vice President and General
    Counsel

 

 

 

 

          LOUISE M. PARENT

 

State of New York )

County of New York ) ss.:

On the 22nd day of September in the year before me, the undersigned, personally appeared Louise M. Parent , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

Power of Attorney
Akerson Signature Page 1


SIGNATURE OF AGENT AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on September 21 , 2009.

 

 

 

 

      -S- CAROL V. SCHWARTZ

   Secretary

 

 

 

 

       CAROL V. SCHWARTZ

 

State of New York )

County of New York ) ss.:

On the 21 day of September in the year before me, the undersigned, personally appeared Carol V. Schwartz , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

Power of Attorney
Akerson Signature Page 2


SIGNATURE OF PRINCIPAL AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on September 21 , 2009.

 

 

 

 

   -S- JOAN C. AMBLE

    Executive Vice President and Comptroller

 

 

 

 

       JOAN C. AMBLE

 

State of New York )

County of New York ) ss.:

On the 21 day of September in the year before me, the undersigned, personally appeared Joan C. Amble , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

SIGNATURE OF AGENT AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on September 22 , 2009.

 

 

 

 

   -S- LOUISE M. PARENT

    Executive Vice President and General
    Counsel

 

 

 

 

          LOUISE M. PARENT

 

State of New York )

County of New York ) ss.:

On the 22 nd day of September in the year before me, the undersigned, personally appeared Louise M. Parent , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

Power of Attorney
Amble Signature Page 1


SIGNATURE OF AGENT AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on September 21 , 2009.

 

 

 

 

      -S- CAROL V. SCHWARTZ

   Secretary

 

 

 

 

       CAROL V. SCHWARTZ

 

State of New York )

County of New York ) ss.:

On the 21 day of September in the year before me, the undersigned, personally appeared Carol V. Schwartz , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

Power of Attorney
Amble Signature Page 2


SIGNATURE OF PRINCIPAL AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on 21 September , 2009.

 

 

 

 

   -S- CHARLENE BARSHEFSKY

    Director

 

 

 

 

    CHARLENE BARSHEFSKY

 

State of New York )

County of New York ) ss.:

On the 21 day of September in the year before me, the undersigned, personally appeared Charlene Barshefsky , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

SIGNATURE OF AGENT AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on September 22 , 2009.

 

 

 

 

   -S- LOUISE M. PARENT

    Executive Vice President and General
    Counsel

 

 

 

 

          LOUISE M. PARENT

 

State of New York )

County of New York ) ss.:

On the 22 nd day of September in the year before me, the undersigned, personally appeared Louise M. Parent , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

Power of Attorney
Barshefsky Signature Page 1


SIGNATURE OF AGENT AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on September 21 , 2009.

 

 

 

 

      -S- CAROL V. SCHWARTZ

   Secretary

 

 

 

 

       CAROL V. SCHWARTZ

 

State of New York )

County of New York ) ss.:

On the 21 day of September in the year before me, the undersigned, personally appeared Carol V. Schwartz , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

Power of Attorney
Barshefsky Signature Page 2


SIGNATURE OF PRINCIPAL AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on 21 September , 2009.

 

 

 

 

   -S- URSULA M. BURNS

    Director

 

 

 

 

    URSULA M. BURNS

 

State of New York )

County of New York ) ss.:

On the 21 day of September in the year before me, the undersigned, personally appeared Ursula M. Burns , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

SIGNATURE OF AGENT AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on September 22 , 2009.

 

 

 

 

   -S- LOUISE M. PARENT

    Executive Vice President and General
    Counsel

 

 

 

 

          LOUISE M. PARENT

 

State of New York )

County of New York ) ss.:

On the 22 nd day of September in the year before me, the undersigned, personally appeared Louise M. Parent , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

Power of Attorney
Burns Signature Page 1


SIGNATURE OF AGENT AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on September 21 , 2009.

 

 

 

 

      -S- CAROL V. SCHWARTZ

   Secretary

 

 

 

 

       CAROL V. SCHWARTZ

 

State of New York )

County of New York ) ss.:

On the 21 day of September in the year before me, the undersigned, personally appeared Carol V. Schwartz , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

Power of Attorney
Burns Signature Page 2


SIGNATURE OF PRINCIPAL AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on September 21 , 2009.

 

 

 

 

   -S- KENNETH I. CHENAULT

    Chairman, Chief Executive Officer and
    Director

 

 

 

 

       KENNETH I. CHENAULT

 

State of New York )

County of New York ) ss.:

On the 21 day of September in the year before me, the undersigned, personally appeared Kenneth I. Chenault , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

SIGNATURE OF AGENT AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on September 22 , 2009.

 

 

 

 

   -S- LOUISE M. PARENT

    Executive Vice President and General
    Counsel

 

 

 

 

          LOUISE M. PARENT

 

State of New York )

County of New York ) ss.:

On the 22 nd day of September in the year before me, the undersigned, personally appeared Louise M. Parent , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

Power of Attorney
Chenault Signature Page 1


SIGNATURE OF AGENT AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on September 21 , 2009.

 

 

 

 

      -S- CAROL V. SCHWARTZ

   Secretary

 

 

 

 

       CAROL V. SCHWARTZ

 

State of New York )

County of New York ) ss.:

On the 21 day of September in the year before me, the undersigned, personally appeared Carol V. Schwartz , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

Power of Attorney
Chenault Signature Page 2


SIGNATURE OF PRINCIPAL AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on September 21 , 2009.

 

 

 

 

   -S- PETER CHERNIN

    Director

 

 

 

 

       PETER CHERNIN

 

State of New York )

County of New York ) ss.:

On the 21 day of September in the year before me, the undersigned, personally appeared Peter Chernin , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

SIGNATURE OF AGENT AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on September 22 , 2009.

 

 

 

 

   -S- LOUISE M. PARENT

    Executive Vice President and General
    Counsel

 

 

 

 

          LOUISE M. PARENT

 

State of New York )

County of New York ) ss.:

On the 22 nd day of September in the year before me, the undersigned, personally appeared Louise M. Parent , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

Power of Attorney
Chernin Signature Page 1


SIGNATURE OF AGENT AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on September 21 , 2009.

 

 

 

 

      -S- CAROL V. SCHWARTZ

   Secretary

 

 

 

 

       CAROL V. SCHWARTZ

 

State of New York )

County of New York ) ss.:

On the 21 day of September in the year before me, the undersigned, personally appeared Carol V. Schwartz , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

Power of Attorney
Chernin Signature Page 2


SIGNATURE OF PRINCIPAL AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on September 21 , 2009.

 

 

 

 

   -S- DANIEL T. HENRY

    Executive Vice President and Chief
    Financial Officer

 

 

 

 

        DANIEL T. HENRY

 

State of New York )

County of New York ) ss.:

On the 21 day of September in the year before me, the undersigned, personally appeared Daniel T. Henry , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

SIGNATURE OF AGENT AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on September 22 , 2009.

 

 

 

 

   -S- LOUISE M. PARENT

    Executive Vice President and General
    Counsel

 

 

 

 

          LOUISE M. PARENT

 

State of New York )

County of New York ) ss.:

On the 22 nd day of September in the year before me, the undersigned, personally appeared Louise M. Parent , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

Power of Attorney
Henry Signature Page 1


SIGNATURE OF AGENT AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on September 21 , 2009.

 

 

 

 

      -S- CAROL V. SCHWARTZ

   Secretary

 

 

 

 

       CAROL V. SCHWARTZ

 

State of New York )

County of New York ) ss.:

On the 21 day of September in the year before me, the undersigned, personally appeared Carol V. Schwartz , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

Power of Attorney
Henry Signature Page 2


SIGNATURE OF PRINCIPAL AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on 9/21 , 2009.

 

 

 

 

   -S- JAN LESCHLY

    Director

 

 

 

 

         JAN LESCHLY

 

State of New York )

County of New York ) ss.:

On the 21 day of September in the year before me, the undersigned, personally appeared JAN LESCHLY , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

SIGNATURE OF AGENT AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on September 22 , 2009.

 

 

 

 

   -S- LOUISE M. PARENT

    Executive Vice President and General
    Counsel

 

 

 

 

          LOUISE M. PARENT

 

State of New York )

County of New York ) ss.:

On the 22nd day of September in the year before me, the undersigned, personally appeared Louise M. Parent , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

Power of Attorney
Leschly Signature Page 1


SIGNATURE OF AGENT AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on September 21 , 2009.

 

 

 

 

      -S- CAROL V. SCHWARTZ

   Secretary

 

 

 

 

       CAROL V. SCHWARTZ

 

State of New York )

County of New York ) ss.:

On the 21 day of September in the year before me, the undersigned, personally appeared Carol V. Schwartz , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

Power of Attorney
Leschly Signature Page 2


SIGNATURE OF PRINCIPAL AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on September 21 , 2009.

 

 

 

 

   -S- RICHARD A. MCGINN

    Director

 

 

 

 

    RICHARD A. MCGINN

 

State of New Jersey )

County of Somerset ) ss.: 150 38 3217

On the 21 st day of September in the year before me, the undersigned, personally appeared                            , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

SIGNATURE OF AGENT AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on September 22 , 2009.

 

 

 

 

   -S- LOUISE M. PARENT

    Executive Vice President and General
    Counsel

 

 

 

 

          LOUISE M. PARENT

 

State of New York )

County of New York ) ss.:

On the 22 nd day of September in the year before me, the undersigned, personally appeared Louise M. Parent , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

Power of Attorney
McGinn Signature Page 1


SIGNATURE OF AGENT AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on September 21 , 2009.

 

 

 

 

      -S- CAROL V. SCHWARTZ

   Secretary

 

 

 

 

       CAROL V. SCHWARTZ

 

State of New York )

County of New York ) ss.:

On the 21 day of September in the year before me, the undersigned, personally appeared Carol V. Schwartz , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

Power of Attorney
McGinn Signature Page 2


SIGNATURE OF PRINCIPAL AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on September 21 , 2009.

 

 

 

 

   -S- EDWARD D. MILLER

    Director

 

 

 

 

        EDWARD D. MILLER

 

State of New York )

County of New York ) ss.:

On the 21 day of September in the year before me, the undersigned, personally appeared Edward D. Miller , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

SIGNATURE OF AGENT AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on September 22 , 2009.

 

 

 

 

   -S- LOUISE M. PARENT

    Executive Vice President and General
    Counsel

 

 

 

 

          LOUISE M. PARENT

 

State of New York )

County of New York ) ss.:

On the 22 nd day of September in the year before me, the undersigned, personally appeared Louise M. Parent , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

Power of Attorney
Miller Signature Page 1


SIGNATURE OF AGENT AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on September 21 , 2009.

 

 

 

 

      -S- CAROL V. SCHWARTZ

   Secretary

 

 

 

 

       CAROL V. SCHWARTZ

 

State of New York )

County of New York ) ss.:

On the 21 day of September in the year before me, the undersigned, personally appeared Carol V. Schwartz , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

Power of Attorney
Miller Signature Page 2


SIGNATURE OF PRINCIPAL AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on September 21 , 2009.

 

 

 

 

   -S- STEVEN S REINEMUND

    Director

 

 

 

 

    STEVEN S REINEMUND

 

State of New York )

County of New York ) ss.:

On the 21 day of September in the year before me, the undersigned, personally appeared Steven S Reinemund , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

SIGNATURE OF AGENT AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on September 22 , 2009.

 

 

 

 

   -S- LOUISE M. PARENT

    Executive Vice President and General
    Counsel

 

 

 

 

          LOUISE M. PARENT

 

State of New York )

County of New York ) ss.:

On the 22 nd day of September in the year before me, the undersigned, personally appeared Louise M. Parent , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

Power of Attorney
Reinemund Signature Page 1


SIGNATURE OF AGENT AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on September 21 , 2009.

 

 

 

 

      -S- CAROL V. SCHWARTZ

   Secretary

 

 

 

 

       CAROL V. SCHWARTZ

 

State of New York )

County of New York ) ss.:

On the 21 day of September in the year before me, the undersigned, personally appeared Carol V. Schwartz , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

Power of Attorney
Reinemund Signature Page 2


SIGNATURE OF PRINCIPAL AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on ______________, 2009.

 

 

 

 

   -S- ROBERT D. WALTER

    Director

 

 

 

 

      ROBERT D. WALTER

 

State of New York )

County of New York ) ss.:

On the 21 day of September in the year before me, the undersigned, personally appeared Robert D. Walter , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

SIGNATURE OF AGENT AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on September 22 , 2009.

 

 

 

 

   -S- LOUISE M. PARENT

    Executive Vice President and General
    Counsel

 

 

 

 

          LOUISE M. PARENT

 

State of New York )

County of New York ) ss.:

On the 22 nd day of September in the year before me, the undersigned, personally appeared Louise M. Parent , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

Power of Attorney
Walter Signature Page 1


SIGNATURE OF AGENT AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on September 21 , 2009.

 

 

 

 

      -S- CAROL V. SCHWARTZ

   Secretary

 

 

 

 

       CAROL V. SCHWARTZ

 

State of New York )

County of New York ) ss.:

On the 21 day of September in the year before me, the undersigned, personally appeared Carol V. Schwartz , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

Power of Attorney
Walter Signature Page 2


SIGNATURE OF PRINCIPAL AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on September 21 , 2009.

 

 

 

 

   -S- RONALD A. WILLIAMS

    Director

 

 

 

 

       RONALD A. WILLIAMS

 

State of New York )

County of New York ) ss.:

On the 21 day of September in the year before me, the undersigned, personally appeared Ronald A. Williams , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

SIGNATURE OF AGENT AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on September 22 , 2009.

 

 

 

 

   -S- LOUISE M. PARENT

    Executive Vice President and General
    Counsel

 

 

 

 

          LOUISE M. PARENT

 

State of New York )

County of New York ) ss.:

On the 22 nd day of September in the year before me, the undersigned, personally appeared Louise M. Parent , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

Power of Attorney
Williams Signature Page 1


SIGNATURE OF AGENT AND ACKNOWLEDGEMENT:

          In Witness Whereof I have hereunto signed my name on September 21 , 2009.

 

 

 

 

      -S- CAROL V. SCHWARTZ

   Secretary

 

 

 

 

       CAROL V. SCHWARTZ

 

State of New York )

County of New York ) ss.:

On the 21 day of September in the year before me, the undersigned, personally appeared Carol V. Schwartz , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.

 

 

-S- DAVID S. CARROLL

 

 

 

Notary Public, State of New York
Signature and Office of individual taking acknowledgment

No. 02CA4867573

Commission expires July 21, 2010

Qualified in New York County

Power of Attorney
Williams Signature Page 2


Exhibit 25(a)

FORM T-1

SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE

CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
___________________________

THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)

  New York 13-5160382  
  (State of incorporation (I.R.S. employer  
  if not a U.S. national bank) identification no.)  
 
  One Wall Street, New York, N.Y. 10286  
  (Address of principal executive offices) (Zip code)  
______________________________________
 
American Express Company
(Exact name of obligor as specified in its charter)
 
  New York 13-4922250  
  (State or other jurisdiction of (I.R.S. employer  
  incorporation or organization) identification no.)  
 
  200 Vesey Street    
  New York, New York 10285  
  (Address of principal executive offices) (Zip code)  
______________________________________
 
Senior Debt Securities
(Title of the indenture securities)

 



1. General information. Furnish the following information as to the Trustee:
         
  (a) Name and address of each examining or supervising authority to which it is subject.
         
    Name   Address
  Superintendent of Banks of the State of New York   One State Street, New York, N.Y.
        10004-1417, and Albany, N.Y. 12223
         
  Federal Reserve Bank of New York   33 Liberty Street, New York, N.Y. 10045
         
  Federal Deposit Insurance Corporation   Washington, D.C. 20429
     
  New York Clearing House Association   New York, New York 10005
     
    (b) Whether it is authorized to exercise corporate trust powers.
         
    Yes.    
         
2. Affiliations with Obligor.    
         
  If the obligor is an affiliate of the trustee, describe each such affiliation.    
         
  None.      
         
16.   List of Exhibits.    
         
  Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R. 229.10(d).
         
  1.   A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152735).
     
  4.   A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-154173).
     
  6. The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-152735).
     
  7.   A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.

 


SIGNATURE

      Pursuant to the requirements of the Act, the Trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 9th day of October, 2009.

THE BANK OF NEW YORK MELLON

By: /S/ FRANCA M. FERRERA          
       Name: FRANCA M. FERRERA
       Title: SENIOR ASSOCIATE

 


EXHIBIT 7

Consolidated Report of Condition of

THE BANK OF NEW YORK MELLON

of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,

a member of the Federal Reserve System, at the close of business June 30, 2009, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.

ASSETS Dollar Amounts In Thousands
Cash and balances due from depository    
    institutions:    
    Noninterest-bearing balances and currency    
          and coin   3,228,000
    Interest-bearing balances   56,028,000
Securities:    
    Held-to-maturity securities   6,782,000
    Available-for-sale securities   39,436,000
Federal funds sold and securities purchased    
    under agreements to resell:    
    Federal funds sold in domestic offices   1,319,000
    Securities purchased under agreements to    
    resell   50,000
Loans and lease financing receivables:    
    Loans and leases held for sale   0
    Loans and leases, net of unearned    
          income   29,318,000
    LESS: Allowance for loan and    
          lease losses   414,000
    Loans and leases, net of unearned    
          income and allowance   28,904,000
Trading assets   6,282,000
Premises and fixed assets (including    
    capitalized leases)   1,115,000
Other real estate owned   6,000
Investments in unconsolidated subsidiaries    
    and associated companies   830,000
Direct and indirect investments in real estate    
    ventures   0
Intangible assets:    
    Goodwill   4,949,000
    Other intangible assets   1,514,000
    Other assets   11,560,000
    Total assets   162,003,000
     
     
     
     


LIABILITIES    
Deposits:    
    In domestic offices   57,327,000
    Noninterest-bearing   32,885,000
    Interest-bearing   24,442,000
    In foreign offices, Edge and Agreement    
          subsidiaries, and IBFs   74,161,000
    Noninterest-bearing   2,846,000
    Interest-bearing   71,315,000
Federal funds purchased and securities sold    
          under agreements to repurchase:    
    Federal funds purchased in domestic    
        offices   414,000
    Securities sold under agreements to    
        repurchase   13,000
Trading liabilities   6,144,000
Other borrowed money:    
    (includes mortgage indebtedness and    
    obligations under capitalized leases)   2,695,000
Not applicable    
Not applicable    
Subordinated notes and debentures   3,490,000
Other liabilities    
    5,064,000
Total liabilities   149,308,000
 
EQUITY CAPITAL    
Perpetual preferred stock and related    
    surplus   0
Common stock   1,135,000
Surplus (exclude all surplus related to    
    preferred stock)   8,297,000
Retained earnings   7,991,000
Accumulated other comprehensive income   -5,097,000
Other equity capital components   0
Total bank equity capital   12,326,000
Noncontrolling (minority) interests in    
    consolidated subsidiaries   369,000
Total equity capital   12,695,000
Total liabilities and equity capital   162,003,000


      I, Thomas P. Gibbons, Chief Financial Officer of the above-named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief.

    Thomas P. Gibbons,
Chief Financial Officer

      We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct.

     
Gerald L. Hassell    
Robert P. Kelly             Directors
Catherine A. Rein    
     


Exhibit 25(b)

FORM T-1

SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE

CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
___________________________

THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)

  New York 13-5160382  
  (State of incorporation (I.R.S. employer  
  if not a U.S. national bank) identification no.)  
 
  One Wall Street, New York, N.Y. 10286  
  (Address of principal executive offices) (Zip code)  
 
 
American Express Company
(Exact name of obligor as specified in its charter)
 
  New York 13-4922250  
  (State or other jurisdiction of (I.R.S. employer  
  incorporation or organization) identification no.)  
 
  200 Vesey Street    
  New York, New York 10285  
  (Address of principal executive offices) (Zip code)  
___________________________
 
Subordinated Debt Securities
(Title of the indenture securities)

 


1.   General information. Furnish the following information as to the Trustee:
         
  (a) Name and address of each examining or supervising authority to which it is subject.
         
    Name   Address
  Superintendent of Banks of the State of New York   One State Street, New York, N.Y. 10004-1417, and
        Albany, N.Y. 12223
         
  Federal Reserve Bank of New York   33 Liberty Street, New York, N.Y. 10045
         
  Federal Deposit Insurance Corporation   Washington, D.C. 20429
       
  New York Clearing House Association   New York, New York 10005
         
  (b) Whether it is authorized to exercise corporate trust powers.    
         
  Yes.      
         
2.      

Affiliations with Obligor.

   
         
 

If the obligor is an affiliate of the trustee, describe each such affiliation.

         
 

None.

     
         
16.   List of Exhibits    
         
  Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R. 229.10(d).
         
  1.   A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152735).
         
  4.   A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-154173).
         
  6.   The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-152735).
         
  7.   A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.
         

 


SIGNATURE

      Pursuant to the requirements of the Act, the Trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 9th day of October, 2009.

THE BANK OF NEW YORK MELLON

By: /S/ FRANCA M. FERRERA          
       Name: FRANCA M. FERRERA
       Title: SENIOR ASSOCIATE

 


EXHIBIT 7

Consolidated Report of Condition of

THE BANK OF NEW YORK MELLON

of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,

a member of the Federal Reserve System, at the close of business June 30, 2009, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.

ASSETS Dollar Amounts In Thousands
 
Cash and balances due from depository    
    institutions:    
    Noninterest-bearing balances and currency    
        and coin   3,228,000
    Interest-bearing balances   56,028,000
Securities:    
    Held-to-maturity securities   6,782,000
    Available-for-sale securities   39,436,000
Federal funds sold and securities purchased    
    under agreements to resell:    
    Federal funds sold in domestic offices   1,319,000
    Securities purchased under agreements to    
    resell   50,000
Loans and lease financing receivables:    
    Loans and leases held for sale   0
    Loans and leases, net of unearned    
        income   29,318,000
    LESS: Allowance for loan and    
        lease losses   414,000
    Loans and leases, net of unearned    
        income and allowance   28,904,000
Trading assets   6,282,000
Premises and fixed assets (including    
    capitalized leases)   1,115,000
Other real estate owned   6,000
Investments in unconsolidated subsidiaries    
    and associated companies   830,000
Direct and indirect investments in real estate    
    ventures   0
Intangible assets:    
    Goodwill   4,949,000
    Other intangible assets   1,514,000
    Other assets   11,560,000
    Total assets   162,003,000
     


LIABILITIES    
Deposits:    
    In domestic offices   57,327,000
    Noninterest-bearing   32,885,000
    Interest-bearing   24,442,000
    In foreign offices, Edge and Agreement    
        subsidiaries, and IBFs   74,161,000
    Noninterest-bearing   2,846,000
    Interest-bearing   71,315,000
Federal funds purchased and securities sold    
        under agreements to repurchase:    
    Federal funds purchased in domestic    
      offices   414,000
    Securities sold under agreements to    
      repurchase   13,000
Trading liabilities   6,144,000
Other borrowed money:    
    (includes mortgage indebtedness and    
    obligations under capitalized leases)   2,695,000
Not applicable    
Not applicable    
Subordinated notes and debentures   3,490,000
Other liabilities    
    5,064,000
Total liabilities   149,308,000
 
EQUITY CAPITAL    
Perpetual preferred stock and related    
    surplus   0
Common stock   1,135,000
Surplus (exclude all surplus related to    
    preferred stock)   8,297,000
Retained earnings   7,991,000
Accumulated other comprehensive income   -5,097,000
Other equity capital components   0
Total bank equity capital   12,326,000
Noncontrolling (minority) interests in    
    consolidated subsidiaries   369,000
Total equity capital   12,695,000
Total liabilities and equity capital   162,003,000


      I, Thomas P. Gibbons, Chief Financial Officer of the above-named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief.

   Thomas P. Gibbons,
Chief Financial Officer

      We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct.

     
Gerald L. Hassell    
Robert P. Kelly             Directors

Catherine A. Rein