As filed with the Securities and Exchange Commission on June 8, 2006
Registration No. 333-
SECURITIES AND EXCHANGE
COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
American Express Credit
Corporation
(Exact name of registrant as specified in its charter)
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Delaware
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11-1988350
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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. o
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. x
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. o
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. o
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. x
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. o
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Title of each
class of Securities
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Amount to be Registered/
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Debt Securities
and Warrants to
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PROSPECTUS
American Express Credit Corporation
Debt Securities
Warrants to Purchase Debt Securities
American Express Credit Corporation may offer from time to time in one or more series:
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unsecured debt securities; and |
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warrants to purchase unsecured debt securities. |
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 underwriters, dealers and agents or directly to purchasers. The names of any underwriters or agents involved in the sale of securities and their compensation will be described in an accompanying prospectus supplement.
We will provide specific terms of any offering in supplements to this prospectus. This prospectus may not be used to consummate a sale of these securities unless accompanied by a supplement to this prospectus.
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 June 8, 2006.
TABLE OF CONTENTS
Prospectus
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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 heading “WHERE YOU CAN FIND MORE INFORMATION,” before making your investment decision.
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.
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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 or applicable pricing supplement):
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Annual Report on Form 10-K for the year ended December 31, 2005. |
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Quarterly Report on Form 10-Q for the quarter ended March 31, 2006. |
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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 Credit Corporation
301 North Walnut Street
Wilmington, Delaware 19801-2919
Attention: President
(302) 594-3350
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Various forward-looking statements have been made in this prospectus and the documents incorporated or deemed to be incorporated by reference in this prospectus. Forward-looking statements may also be made in our other 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 below, which could cause actual results to differ materially from such statements. The words “believe,” “expect,” “anticipate,” “optimistic,” “intend,” “evaluate,” “plan,” “estimate,” “aim,” “will,” “may,” “should,” “could,” “would,” “likely” and similar expressions are intended to identify 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. Factors that could cause actual results to differ materially from our forward-looking statements include, but are not limited to:
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credit trends and the rate of bankruptcies, which can affect spending on card products and debt payment by individual and corporate customers; |
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our ability to accurately estimate the provision for losses in our outstanding portfolio of Cardmember receivables and loans; |
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fluctuations in foreign currency exchange rates; |
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negative changes in our credit ratings, which could result in decreased liquidity and higher borrowing costs; |
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the effect of fluctuating interest rates, which could affect our borrowing costs; and |
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the impact on American Express Company’s business resulting from continuing geopolitical uncertainty. |
Further 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.
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We are a wholly-owned subsidiary of American Express Travel Related Services Company, Inc., to which we refer as TRS, which is a wholly-owned subsidiary of American Express Company.
We are primarily engaged in the business of financing most non-interest bearing cardmember receivables arising from the use of the American Express® Card, the American Express® Gold Card, Platinum Card®, Centurion® card and Corporate Card issued in the United States, and in designated currencies outside the United States. We also purchase certain interest-bearing and discounted revolving loans and extended payment plan receivables comprised principally of American Express credit cards and Sign & Travel® and Extended Payment Option receivables. In this prospectus we refer to the American Express Cards and American Express credit cards as the Card. TRS provides a variety of products and services, including a global card network, issuing and processing services, the Card, consumer and corporate lending and banking products, the American Express® Travelers Cheque and other stored value products, business expense management products and services, corporate and consumer travel products and services, magazine publishing and merchant transaction processing, point-of-sale and back office products and services. The Card is issued by TRS and certain of its subsidiaries, to which we refer as the Card issuers.
We finance Cardmember receivables generally by purchasing them from the Card issuers, without recourse, under receivables agreements, which provide that amounts resulting from unauthorized charges, for example, those made with a lost or stolen Card, are not eligible for purchase by us. If the unauthorized nature of the charge is discovered after purchase by us, the Card issuer repurchases the charge from us at its face amount.
We generally purchase interest-bearing and non-interest-bearing Cardmember receivables at face amount less a specified discount which is determined at the time of purchase based on the nature of the receivables. The discount rate applicable to purchases of new receivables is negotiated to reflect changes in money market interest rates or significant changes in the collectibility of receivables. We generally purchase new groups of Card receivables net of reserve balances applicable to them.
The Card issuers, at their expense and as our agents, perform accounting, clerical and other services necessary to bill and collect all Card receivables that we own. The receivables agreements provide that the credit standards used to determine whether a Card is to be issued to an applicant may not be materially reduced and that the policy as to the cancellation of Cards for credit reasons may not be materially liberalized without our prior written consent.
The indenture under which the securities described in this prospectus are to be issued states that we will not engage in any transaction with American Express Company or its affiliates unless the transaction is on a basis not materially less favorable to us than would be the case if we had effected such a transaction with a non-related party.
American Express Company, as the parent company of TRS, has agreed with us that it will take all necessary steps to assure performance of certain of TRS’ obligations under the receivables agreement between TRS and us. The securities are solely our obligations and are not guaranteed under the receivables agreements or otherwise by American Express Company or the Card issuers. The receivables agreements may be terminated at any time by either the Card issuer or us, generally with little or no notice.
Our executive offices are located at 301 North Walnut Street, Wilmington, Delaware 19801-2919 (telephone number: 302-594-3350).
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The following risk factors may be applicable to certain types of debt securities that may be issued by us. A description of the debt securities is contained below under “Description of Debt Securities” as well as in the accompanying prospectus supplement and applicable pricing supplements. 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 filed in periodic or current reports and incorporated herein by reference.
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:
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the possibility of significant changes in rates of exchange between U.S. dollars and the specified currency; and |
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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:
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economic events; |
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political events; and |
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the supply of and demand for the relevant currencies. |
In recent years, rates of exchange between U.S. dollars and certain 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.
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. 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. Pricing 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 and, if applicable, a pricing supplement affecting such currency.
The Unavailability of Currencies Could Result in a Substantial Loss to You
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Except as we specify in the accompanying prospectus supplement and applicable pricing 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:
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unavailable due to the imposition of exchange controls or other circumstances beyond our control; |
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no longer used by the government of the country issuing such currency; or |
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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:
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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 |
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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 and applicable pricing 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:
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has a fixed principal amount; |
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is denominated in U.S. dollars; and |
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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:
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the underlying assets; |
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another objective price; and |
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economic or other measures making up the relevant index. |
Underlying assets could include:
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currencies; |
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commodities; |
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securities (individual or baskets); and |
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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:
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economic events; |
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political events; and |
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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.
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RATIO OF EARNINGS TO FIXED CHARGES
The following table shows our historical ratios of earnings to fixed charges and those of American Express Company for the periods indicated:
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Three
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American Express Credit Corporation |
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1.41
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1.41 |
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1.36 |
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1.46 |
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1.38 |
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1.29 |
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American Express Company (1) |
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2.40
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3.13 |
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2.97 |
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2.54 |
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1.58 |
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The securities described in this prospectus, any accompanying prospectus supplement or an applicable pricing supplement are not obligations of American Express Company or the Card issuers. |
| Generally, under our receivables agreements as currently in effect, the discount rate for new non-interest bearing receivables that we acquire must be sufficient to yield us earnings of at least 1.25 times our total fixed charges on an annual basis. | |
| Included in interest expense in the above computation is interest expense related to the international banking operations of American Express Company and Travel Related Services’ Cardmember lending activities, which is netted against investment income and Cardmember lending net finance charge revenue, respectively, in the consolidated statements of income of American Express Company. | |
| For the purposes of the earnings computations, other adjustments include adding the amortization of capitalized interest, the net loss of affiliates accounted for under the equity method whose debt is not guaranteed by American Express Company, the minority 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. | |
| For purposes of the fixed charges computations, other adjustments include capitalized interest costs and the interest component of rental expense. |
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Unless otherwise indicated in the prospectus supplement accompanying this prospectus, we will add the net proceeds from the sale of the securities to our general funds, which we will use for financing our operations, including the purchase of receivables, the repayment of short-term senior debt incurred primarily to finance the purchase of receivables and for investment in short-term and medium-term financial assets.
We expect to incur additional debt in the future to carry on our business. The nature and amount of our short-term, medium-term and long-term debt and the proportionate amount of each can be expected to fluctuate as a result of market conditions and other factors.
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DESCRIPTION OF DEBT SECURITIES
The debt securities will be issued under an indenture, dated as of , 2006, between us and The Bank of New York, as trustee. The indenture permits us to appoint a different trustee for each series of debt securities. If there is at any time more than one trustee under the indenture, the term trustee means each trustee and will apply to each trustee only with respect to those series of debt securities for which it is serving as trustee. When we refer to the indenture in this prospectus, we mean the indenture as it has been supplemented.
This prospectus briefly outlines the provisions of the indenture. When we refer to the indenture, such reference also includes the supplemental indentures we have noted above. A form of the indenture, together with forms of the four supplemental indentures, have been filed with the SEC as exhibits to the registration statement, of which this prospectus forms a part. You should read the indenture for provisions that may be important to you. In the summary below, we have included references to section numbers of the indenture so that you can easily locate these provisions.
In this prospectus and any accompanying prospectus supplement or an applicable pricing supplement, unless otherwise specified or the context otherwise requires, references to “dollars,” “$” and “U.S.$” are to United States dollars.
Issuances in Series
We may issue the debt securities from time to time in one or more series with the same or different terms. We may 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. We will offer the debt securities to the public on terms determined by market conditions at the time of sale.
The indenture does not limit the amount of debt we may issue. We may sell the debt securities at a substantial discount below their stated principal amount, bearing no interest or interest at a rate that at the time of issuance is below market rates. See “Certain U.S. Federal Income Tax Consequences” below. The debt securities covered by this prospectus will be our direct unsecured obligations and will not be secured by any of our property or assets. The debt securities will be senior debt securities that rank on an equal basis with all our other senior unsecured and unsubordinated debt.
Unless otherwise specified for debt securities denominated in a currency other than U.S. dollars or as otherwise specified in an accompanying prospectus supplement or an applicable pricing 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 or an applicable pricing 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 or an applicable pricing supplement.
The prospectus supplement or a pricing supplement, if any, 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):
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the designation, aggregate principal amount and authorized denominations of the debt securities; |
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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; |
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the maturity date or the method for determining the maturity date; |
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the terms for exchange, if any, of the debt securities; |
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the interest rate or rates, if any, or the method for computing such rate or rates; |
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the interest payment dates or the method for determining such dates; |
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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; |
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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; |
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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; |
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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; |
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any mandatory or optional sinking fund, redemption or other similar terms; |
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any index or other method used to determine the amount of principal, premium, if any, and interest, if any, on the debt securities; |
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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; |
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information describing any book-entry features; |
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if a trustee other than U.S. Bank Trust National Association is named for the debt securities, the name of such trustee; |
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any material federal income tax consequences; |
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any material provisions of the indenture that do not apply to the debt securities; and |
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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 or an applicable pricing 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 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.
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Unless we specify otherwise in an accompanying prospectus supplement or an applicable pricing 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 or an applicable pricing supplement, and unless we specify otherwise in an accompanying prospectus supplement or an applicable pricing 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 or an applicable pricing 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 or an applicable pricing 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 or an applicable pricing supplement will designate one of the following interest rate bases as applicable to each debt security:
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a fixed rate per year, in which case the debt security will be a fixed rate debt security; |
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the Commercial Paper Rate, in which case the debt security will be a Commercial Paper Rate debt security; |
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the Federal Funds Rate, in which case the debt security will be a Federal Funds Rate debt security; |
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the CD Rate, in which case the debt security will be a CD Rate debt security; |
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LIBOR, in which case the debt security will be a LIBOR debt security; |
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EURIBOR, in which case the debt security will be a EURIBOR debt security; |
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the Prime Rate, in which case the debt security will be a Prime Rate debt security; |
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the Treasury Rate, in which case the debt security will be a Treasury Rate debt security; or |
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such other interest rate formula as is set forth in an accompanying prospectus supplement or an applicable pricing supplement. |
We will specify in the accompanying prospectus supplement or an applicable pricing 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 or the applicable pricing 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 or an applicable pricing 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 or an applicable pricing 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.
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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 or an applicable pricing 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 or an applicable pricing 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 or applicable pricing 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:
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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 or an applicable pricing supplement; |
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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 or an applicable pricing supplement; |
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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 or an applicable pricing supplement; and |
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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 or an applicable pricing 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:
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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; |
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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; |
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for debt securities 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; |
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for debt securities 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 |
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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, Canadian dollars or euro, which will be |
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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. |
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 or an applicable pricing supplement. The interest reset date will be:
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in the case of floating rate debt securities (other than Treasury Rate debt securities) that reset weekly, the Wednesday of each week; |
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in the case of Treasury Rate debt securities that reset weekly, the Tuesday of each week; |
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in the case of floating rate debt securities that reset monthly, the third Wednesday of each month; |
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in the case of floating rate debt securities that reset quarterly, the third Wednesday of March, June, September and December; |
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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 or an applicable pricing 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 or an applicable pricing supplement; |
However, in each case, (1) 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 or an applicable pricing supplement and (2) the interest rate in effect for the ten days immediately prior to maturity or redemption, if applicable, will be the rate in effect on the tenth day preceding such maturity or redemption. 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 or applicable pricing 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 J.P. Morgan Trust Company, N.A. unless we specify otherwise in an accompanying prospectus supplement or an applicable pricing supplement.
The interest determination date pertaining to an interest reset date will be:
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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; |
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the second business day preceding such interest reset date for a LIBOR debt security or a EURIBOR debt security; or |
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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
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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 or applicable pricing 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 or applicable pricing supplement.
Unless we specify otherwise in an accompanying prospectus supplement or an applicable pricing 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. However, in the case of a floating rate debt security on which interest is reset weekly, interest payable on each interest payment date will be the amount of interest accrued from and including the issue date or from and excluding the last date to which interest has been paid, as the case may be, to, and including, the regular record date immediately preceding such interest payment date, except that at maturity the interest payable will include interest accrued to, but excluding, the date of maturity.
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 the interest rate (calculated with reference to the Commercial Paper Rate and the spread or spread multiplier, if any) we specify in the Commercial Paper Rate debt security and in an accompanying prospectus supplement or an applicable pricing supplement.
Unless we indicate otherwise in an accompanying prospectus supplement or an applicable pricing 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 or an applicable pricing supplement as such rate is published by the Board of Governors of the Federal Reserve System in “Statistical Release H.15(519), Selected Interest Rates” or any successor publication of the Board of Governors of the Federal Reserve System, 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:
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In the event that such rate is not published prior to 3:00 p.m., New York City time, on the applicable calculation |
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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 or an applicable pricing supplement as published in the daily update of H.15(519), available through the worldwide website of the Board of Governors of the Federal Reserve System 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). |
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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 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 or an applicable pricing supplement placed for a non-financial issuer whose bond rating is “AA,” or the equivalent, from a nationally recognized securities rating agency. |
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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:
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D Ï 360 |
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Money Market Yield = |
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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 the interest rate (calculated with reference to the Federal Funds Rate and the spread or spread multiplier, if any) we specify in the Federal Funds Rate debt security and in an accompanying prospectus supplement or an applicable pricing supplement.
Unless we indicate otherwise in an accompanying prospectus supplement or an applicable pricing 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 Moneyline Telerate, Inc. (or any successor service) on page 120 (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:
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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).” |
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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. |
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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 the interest rate (calculated with reference to the CD Rate and the spread or spread multiplier, if any) we specify in the CD Rate debt security and in an accompanying prospectus supplement or an applicable pricing supplement.
Unless we indicate otherwise in an accompanying prospectus supplement or an applicable pricing 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 or an applicable pricing supplement as published in H.15(519) under the heading “CDs (Secondary Market).”
The following procedures will be followed if the CD Rate cannot be determined as described above:
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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 or an applicable pricing supplement as published in H.15 Daily Update under the heading “CDs (Secondary Market).” |
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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 or an applicable pricing supplement in an amount that is representative for a single transaction in that market at that time. |
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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 the interest rate (calculated with reference to LIBOR and the spread or spread multiplier, if any) we specify in the LIBOR debt security and in an accompanying prospectus supplement or an applicable pricing supplement.
Unless we indicate otherwise in an accompanying prospectus supplement or an applicable pricing supplement, LIBOR will be determined by the calculation agent in accordance with the following provisions in the order set forth below:
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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 or an applicable pricing 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. |
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With respect to an interest determination date relating to a LIBOR debt security to which the last sentence of the |
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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 or applicable pricing 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 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 or applicable pricing 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 or applicable pricing 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 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 or applicable pricing supplement as the currency with respect to which LIBOR will be calculated. If no currency is specified in the accompanying prospectus supplement or applicable pricing supplement, the index currency will be U.S. dollars.
“Designated LIBOR Page” means the display on Page 3750 (or any other page specified in the accompanying prospectus supplement or applicable pricing supplement) of Moneyline Telerate, Inc. (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 or an applicable pricing 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 or an applicable pricing supplement, commencing on the interest reset date, which appears on page 248 on the Reuters Telerate Service or any successor service or any page that may replace page 248 on that service that is commonly referred to as “Telerate Page 248” as of 11:00 a.m., Brussels time, on that date.
If EURIBOR cannot be determined on a EURIBOR determination date as described above, then the calculation agent will determine EURIBOR as follows:
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The calculation agent for the EURIBOR debt security will select four major banks in the euro-zone interbank market. |
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The calculation agent will request that the principal euro-zone offices of those four selected banks provide their |
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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 euros that is representative of a single transaction in such market at that time. |
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If two or more quotations are provided, EURIBOR for the interest reset period will be the arithmetic mean of those quotations. |
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If less than two quotations are provided, the calculation agent will select four major banks in the euro-zone and follow the steps in the two bullet points below: |
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The calculation agent will then determine EURIBOR for the interest reset period as the arithmetic mean of rates quoted by those four 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 euros that is representative of a single transaction in such market at that time. |
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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, EURIBOR will be the initial interest rate. |
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“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 by the Treaty on European Union and the Treaty of Amsterdam.
Prime Rate Debt Securities
A Prime Rate debt security will bear interest at the interest rate (calculated with reference to the Prime Rate and the spread or spread multiplier, if any) we specify in the Prime Rate debt security and in an accompanying prospectus supplement or an applicable pricing supplement.
Unless we indicate otherwise in an accompanying prospectus supplement or an applicable pricing 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:
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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 under the heading “Bank Prime Loan.” |
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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 Screen USPRIME 1 Page (as defined below) 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 the Reuters Screen USPRIME 1 Page on that interest determination date. |
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If fewer than four rates appear on the Reuters Screen USPRIME 1 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 at least two of the three major money center banks in New York City selected by the calculation agent, after consultation with us, from which quotations are requested. |
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If fewer than two quotations are provided, the calculation agent will calculate the Prime Rate, which will be the |
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arithmetic mean of the prime rates in New York City by the appropriate number of substitute banks or trust companies organized and doing business under the laws of the United States, or any State thereof, in each case having total equity capital of at least $500 million and being subject to supervision or examination by federal or state authority, selected by the calculation agent after consultation with us to quote prime rates. |
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 the interest rate (calculated with reference to the Treasury Rate and the spread or spread multiplier, if any) we specify in the Treasury Rate debt security and in an accompanying prospectus supplement or an applicable pricing supplement.
Unless we indicate otherwise in an accompanying prospectus supplement or an applicable pricing 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 or applicable pricing supplement as such rate appears under the heading “INVESTMENT RATE” on the display on Moneyline Telerate, Inc. (or any successor service) on page 56 (or any other page as may replace such page) or page 57 (or any other page as may replace such page)
The following procedures will be followed if the Treasury Rate cannot be determined as above:
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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.” |
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In the event that the results of the auction of Treasury bills having the index maturity specified in an accompanying prospectus supplement or an applicable pricing 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. |
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In the event that the auction rate of Treasury bills having the index maturity designated in the accompanying prospectus supplement or applicable pricing 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 or applicable pricing 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.” |
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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 or applicable pricing supplement. |
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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). |
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Bond Equivalent Yield means a yield (expressed as a percentage) calculated as follows:
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D Ï N |
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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:
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in accordance with a schedule; |
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by application of a formula; or |
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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 or applicable pricing supplement.
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 or applicable pricing supplement for the indexed debt security. Holders of indexed debt securities may receive a principal amount at maturity that is greater than 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 or an applicable pricing 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 or an applicable pricing supplement.
Notwithstanding anything to the contrary contained herein or in the accompanying prospectus or the applicable pricing supplement, for purposes of determining the rights of a holder of an indexed debt security in respect of voting for or against amendments to the indenturesand 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 or an applicable pricing 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 or applicable pricing 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
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discount debt security (if applicable), multiplied by the initial redemption percentage specified in the accompanying prospectus supplement or applicable pricing 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 or applicable pricing 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 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 or an applicable pricing 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 or an applicable pricing supplement.
Redemption and Repayment
Unless we specify otherwise in an accompanying prospectus supplement or an applicable pricing supplement, the debt securities will not be redeemable prior to their stated maturity. If we so specify in an accompanying prospectus supplement or an applicable pricing 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 or pricing 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 or an applicable pricing supplement.
Covenants Relating to Us
The covenants in the indenture include the following:
Transactions With Affiliates. Neither we nor any of our subsidiaries will engage in any transaction with any of our affiliates unless the transaction is on a basis not materially less favorable to us or our subsidiary than would be the case if we had effected the transaction with a non-related third party. See Section 12.08. Our affiliates are defined as any corporation controlling, controlled by or under common control with us. See Section 1.01. Our subsidiaries means any corporation of which we own or control, directly or indirectly, more than 50% of each class of its voting stock. See Section 1.01.
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Maintenance of Net Worth. The indenture requires that we shall at all times maintain a net worth of at least $50,000,000. See Section 12.10. Net worth is defined in the indenture to include, at any date, the aggregate stated value of all classes of our capital stock plus the aggregate amount of the consolidated surplus, whether capital, earned or other, of us and our consolidated subsidiaries, calculated in accordance with generally accepted accounting principles, to which we refer as GAAP. See Section 1.01.
Restrictions as to Liens. Neither we nor any of our subsidiaries will create, assume or allow to exist any mortgage, pledge, encumbrance, lien or charge of any kind upon our or their properties or assets, whether now owned or hereafter acquired, or acquire or agree to acquire property or assets under any conditional sale agreement or other title retention agreement. However, we may incur or allow to exist on our and our subsidiaries’ property the following types of liens:
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liens for taxes and governmental charges not yet due or being contested in good faith; |
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liens incidental to the conduct of our business not incurred in connection with the issuance or assumption of debt; |
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liens on our deposits or on a subsidiary’s deposits with banks, in accordance with customary and established banking practice, in connection with our providing financial accommodations to any person in the ordinary course of business; |
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liens securing obligations of a subsidiary to us or to another subsidiary; |
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certain liens on after acquired tangible property and purchase money liens; and |
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extensions, renewals or replacements of any of such liens. |
See Section 12.11.
However, we and any subsidiary may create, assume or suffer to exist a lien or charge upon any of our assets in connection with the issuance or assumption of secured debt that would otherwise be subject to the above restrictions, provided that the aggregate amount of all such secured debt does not exceed 10% of our borrowing base. See Section 12.11. Borrowing base means the sum of (i) the outstanding debt owed by us to American Express Company or a subsidiary of American Express Company that has been subordinated to the debt securities plus (ii) net worth as defined above. See Section 1.01. Debt is defined as all obligations that in accordance with GAAP would be included in determining total liabilities on the liabilities side of our balance sheet and all obligations guaranteeing debt of any third person. See Section 1.01.
Ownership of our Capital Stock. American Express Company will at all times own, directly or indirectly, 100% of our common stock and shares representing not less than 80% of the total combined voting power of all shares issued by us having ordinary voting rights. See Section 12.12.
Release from Covenants. Except as otherwise set forth in an accompanying prospectus supplement or an applicable pricing supplement relating to any series of the debt securities, the covenants described above will cease to be binding on us from and after the ninety-first day following our deposit with the trustee, in trust, of 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 debt securities, provided that (x) we have made such a deposit, in trust, of sufficient cash and/or government securities; (y) we have paid all other sums payable under the indenture in connection with such series of the debt securities, including all amounts due to the trustee; and (z) we have delivered to the trustee an officer’s certificate and an opinion of counsel each stating that all conditions precedent to such release have been met. See Section 12.16.
Modification of the Indenture
We may make modifications and amendments of the indenture with respect to one or more series of debt securities by supplemental indenture without the consent of the holders of those debt securities in the following instances:
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to evidence the succession of another corporation to us and the assumption by such successor of our obligations |
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under the indenture; |
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to add to or modify our covenants or events of default for the benefit of the holders of the debt securities; |
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to establish the form or terms of the debt securities of any series; |
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to cure any ambiguity or make any other provisions with respect to matters or questions arising under the indenture that will not adversely affect the interests of the holders in any material respect; |
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to modify, eliminate or add to the provisions of the indenture as necessary to qualify it under any applicable federal law; |
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to name, by supplemental indenture, a trustee other than The Bank of New York for a series of debt securities; |
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to provide for the acceptance of appointment by a successor trustee; |
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to add to or modify the provisions of the indenture to provide for the denomination of debt securities in foreign currencies; |
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to supplement any provisions of the indenture as is necessary to permit or facilitate the defeasance and discharge of any debt securities as described in this prospectus; |
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to prohibit the authentication and delivery of additional series of debt securities; or |
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to modify the provisions of the indenture provided that such modifications do not apply to any outstanding security. |
Any other modifications or amendments of the indenture 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:
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modify the terms of payment of principal, premium or interest; |
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reduce the percentage of holders of debt securities necessary to modify or amend the indenture or waive our compliance with any restrictive covenant; or |
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subordinate the indebtedness evidenced by the debt securities to any of our other indebtedness. |
See Sections 11.01 and 11.02.
Events of Default, Notice and Waiver
The indenture provides 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 indenture.
Unless otherwise stated in the accompanying prospectus supplement or an applicable pricing supplement, an event of default with respect to any series of debt securities will be:
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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; |
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default in making a sinking fund payment or analogous obligation, if any, when due and payable; |
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default for 30 days in the payment of an installment of interest, if any, on any debt security of that series; |
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failure of American Express Company, directly or indirectly, to own 100% of our common stock and to own shares representing at least 80% of the total combined voting power of all of our issued shares having ordinary voting rights; |
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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; |
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certain events of bankruptcy, insolvency or reorganization, or court appointment of a receiver, liquidator or trustee of us or our property; |
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an event of default with respect to any other series of debt securities outstanding under the indenture 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 $10,000,000 principal amount shall have been accelerated and that acceleration shall not have been annulled within 15 days after written notice thereof; and |
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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. |
See Section 7.01.
An event of default with respect to a particular series of debt securities issued under the indenture 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. See Section 8.02.
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 or an applicable pricing supplement, of all the debt securities of that series to be due and payable immediately. See Section 7.02.
The indenture contains a provision entitling the trustee to be indemnified to its reasonable satisfaction by the holders before exercising any right or power under the indenture at the request of any of the holders. See Section 8.03. The indenture provides 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. See Section 7.12. The right of a holder to institute a proceeding with respect to the indenture 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. See Sections 7.07 and 7.08.
The holders of not less than a majority in principal amount of the outstanding debt securities of any series under the indenture 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 indenture that cannot be amended or modified without the consent of the holder of each debt security affected. See Section 7.13.
We are required by the indenture to furnish to the trustee annual statements as to the fulfillment of our obligations under the indenture. See Sections 9.04 and 12.06.
Defeasance of the Indenture and Debt Securities
The indenture permits us to be discharged from our obligations under the indenture 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. See Section 6.02.
Unless an accompanying prospectus supplement or an applicable pricing 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
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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:
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we will be deemed to have paid and discharged the entire indebtedness on the debt securities of any such series; and |
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our obligations under the indenture 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 indenture 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. See Section 6.02.
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 indenture and the debt securities.
Concerning the Trustee
The Bank of New York, the trustee under the indenture, provides corporate trust services to us. In addition, affiliates of the trustee provide investment banking, bank and corporate trust services and extend credit to our affiliate, the American Express Company and many of its 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 prospectus supplement or an applicable pricing 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 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
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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:
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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. |
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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. |
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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 Börse AG. The shareholders of these two entities are banks, securities dealers and financial institutions. |
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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. |
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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 |
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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. |
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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. |
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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. |
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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. |
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The Euroclear operator is a Belgian bank. The Belgian Banking Commission and the National Bank of Belgium regulate and examine the Euroclear operator. |
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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: |
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transfers of securities and cash within Euroclear; |
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withdrawal of securities and cash from Euroclear; and |
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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. |
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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. |
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Global certificates are generally not transferable. We will issue physical certificates to beneficial owners of a global security if:
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the depositary notifies us that it is unwilling or unable to continue as depositary and we do not appoint a successor within 90 days; |
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the depositary ceases to be a clearing agency registered under the Exchange Act and we do not appoint a successor within 90 days; or |
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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:
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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; |
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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 office of JPMorgan Chase Bank, N.A. 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 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.
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We may issue warrants for the purchase of debt securities. We may issue warrants independently or together with any debt securities offered by any prospectus supplement or applicable pricing supplement. The warrants may be attached to or separate from such debt securities. Warrants will be issued under warrant agreements to be entered into between us and a bank or trust company, as warrant agent. The warrant agent will act solely as our agent in connection with the warrants and will not assume any obligation or relationship of agency or trust for or with any holders of or beneficial owners of warrants. A copy of the form of warrant agreement, including the form of warrant certificate representing the warrants, is filed as an exhibit to the registration statement of which this prospectus is a part. The following summary of certain provisions of the form of warrant agreement and the warrants does not purport to be complete and further terms will be described in an accompanying prospectus supplement or an applicable pricing supplement.
The accompanying prospectus supplement or an applicable pricing supplement that accompanies this prospectus will describe the following terms and other information with respect to the warrants that may be offered:
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the offering price; |
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the currency or currencies for which warrants may be purchased; |
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the designation, aggregate principal amount, currency or currencies and terms of the debt securities purchasable upon exercise of the warrants; |
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if applicable, the designation and terms of the debt securities with which the warrants are issued and the number of warrants issued with each debt security; |
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if applicable, the date on and after which the warrants and the related debt securities will be separately transferable; |
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the principal amount of debt securities purchasable upon exercise of one warrant and the price and currency or currencies at which that principal amount of debt securities may be purchased upon exercise; |
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the date on which the right to exercise the warrants shall commence and the date on which that right expires; |
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a discussion of certain federal income tax considerations; and |
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any other terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants. |
Prior to the exercise of their warrants, holders of warrants will not have any of the rights of holders of the debt securities purchasable upon exercise, including the right to receive payments of principal of, premium, if any, or interest, if any, on the debt securities purchasable upon exercise or to enforce covenants in the indenture.
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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 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:
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PTCE 96-23 for transactions determined by in-house asset managers; |
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PTCE 95-60 for transactions involving insurance company general accounts; |
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PTCE 91-38 for transactions involving bank collective investment funds; |
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PTCE 90-1 for transactions involving insurance company separate accounts; or |
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PTCE 84-14 for transactions determined by independent qualified professional asset managers. |
Unless otherwise provided in the related prospectus supplement or applicable pricing 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:
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(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; |
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(b) its purchase, holding and disposition of such securities are not and will not be prohibited because they are exempt by one or more of the following prohibited transaction exemptions: PTCE 96-23, 95-60, 91-38, 90-1 or 84-14; or |
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(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. |
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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 or an applicable pricing 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 or applicable pricing 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 or applicable pricing 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 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
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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 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 or an applicable pricing 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
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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 or an applicable pricing 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.
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
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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 or an applicable pricing 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 or an applicable pricing 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 or an applicable pricing 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.
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
33
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.
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 or applicable pricing supplements 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
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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:
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(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; |
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(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
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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 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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We may sell the debt securities or warrants to purchase debt securities from time to time in one or more of the following ways:
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through underwriters or dealers; |
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directly to one or more purchasers; |
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through agents; or |
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through a combination of any such methods of sale. |
The prospectus supplement or an applicable pricing supplement with respect to the offered securities will set forth the terms of the offering, including:
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the name or names of any underwriters or agents; |
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the purchase price of the offered securities and the proceeds to us from their sale; |
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any underwriting discounts or sales agents’ commissions and other items constituting underwriters’ or agents’ compensation; |
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any initial public offering price; |
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any discounts or concessions allowed or reallowed or paid to dealers; and |
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any securities exchanges on which those securities may be listed. |
Only underwriters or agents named in the accompanying prospectus supplement or applicable pricing 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 or an applicable prospectus supplement, the underwriters will be obligated to purchase all the securities of the series offered by such accompanying prospectus supplement or applicable pricing 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 or applicable pricing supplement, and any commissions payable by us to that agent will be set forth in the accompanying prospectus supplement or applicable pricing supplement. Unless otherwise indicated in such accompanying prospectus supplement or applicable pricing 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 or applicable pricing 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 or applicable pricing 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
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only be subject to the following two conditions:
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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 |
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if the particular securities are being sold to underwriters, we shall have sold to such underwriters the total principal amount of those securities less the principal amount thereof 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.
In connection with an offering of debt securities, underwriters may purchase and sell debt securities in the open market. These transactions may include over-allotment, syndicate covering transactions and stabilizing transactions. Over-allotment involves sales of debt securities in excess of the principal amount of debt securities to be purchased by the underwriters in an offering, which creates a short position for the underwriters. Covering transactions involve purchases of the debt 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 debt securities made for the purpose of preventing or retarding a decline in the market price of the debt 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 debt securities being offered. They may also cause the price of the debt 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 and our affiliates, including American Express Company, in the ordinary course of business.
The validity of the securities will be passed upon for us by David S. Carroll, Counsel of American Express Credit Corporation, 200 Vesey Street, World Financial Center, New York, New York. Unless otherwise stated in the accompanying prospectus supplement or applicable pricing supplement, certain legal matters will be passed upon for any underwriters or agents by Cleary Gottlieb Steen & Hamilton LLP, One Liberty Plaza, New York, New York. Cleary Gottlieb Steen & Hamilton LLP has from time to time acted as counsel for American Express Company, American Express Credit Corporation and their respective subsidiaries and affiliates and may do so in the future.
The financial statements as of and for the year ended December 31, 2005 incorporated in this prospectus by reference to the Annual Report on Form 10-K for the year ended December 31, 2005, have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, to which we refer as PWC, an independent registered public accounting firm, given on the authority of said firm as experts in accounting and auditing.
Our financial statements and schedules as of and for the years ended December 31, 2004 and 2003 incorporated in this prospectus by reference to the Annual Report on Form 10-K for the year ended December 31, 2005 have been audited by Ernst & Young LLP, to which we refer as E&Y, an independent registered public accounting firm as set forth in their report included in the Annual Report on Form 10-K for the year ended December 31, 2005. We have incorporated by reference into this prospectus our audited financial statements and schedules as of December 31, 2004 and 2003, and for each of the two years in the period ended December 31, 2004 in reliance upon such report given on the authority of E&Y as experts in accounting and auditing.
On November 22, 2004, the Audit Committee of the Board of Directors of American Express Company appointed PWC as our independent registered public accounting firm for the fiscal year ending December 31, 2005 and dismissed E&Y as our auditors for the 2005 fiscal year. E&Y has completed its engagement as our auditors for the 2004 fiscal year.
38
PROSPECTUS
SUPPLEMENT
(To Prospectus Dated June 8, 2006)
$20,000,000,000
American Express Credit Corporation
Medium-Term Senior Notes, Series C
Due Nine Months or More from Date of Issue
We may offer from time to time our medium-term senior notes, Series C, to which we refer as the notes. At the conclusion of this offering, including all notes we have previously issued, we will have issued up to $20,000,000,000 of the notes. The final terms of each note offered will be included in a pricing supplement. Unless a pricing supplement states otherwise, the notes offered will have the following general terms:
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The notes will mature in nine months or more from the date of issue. |
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The notes will bear interest at either a fixed or a floating rate. Floating rate interest will be based on: |
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Commercial Paper Rate |
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Federal Funds Rate |
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CD Rate |
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LIBOR |
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EURIBOR |
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Prime Rate |
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Treasury Rate |
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Any other rate specified in the applicable pricing supplement. |
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The notes may be indexed in which payments of interest or principal may be linked to the price of one or more securities, currencies, commodities or other goods. |
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Fixed rate interest will be paid on February 1 and August 1, accruing from the date of issue. |
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Floating rate interest will be paid on the dates stated in the applicable pricing supplement. |
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The notes will be held in global form through The Depository Trust Company, unless otherwise specified. |
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The notes may be either redeemed by us or repaid at your option if specified in the applicable pricing supplement. |
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The notes will be denominated in U.S. dollars unless another currency is specified in the applicable pricing supplement and will have minimum denominations of $100,000 unless otherwise specified. |
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Per Note (1) |
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100% |
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0.010% - 0.750% |
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99.250% - 99.990% |
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$20,000,000,000
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$2,000,000 – $150,000,000
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$19,850,000,000 –
$19,998,000,000
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Unless a pricing supplement states otherwise. |
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You should carefully consider the information under “Risk Factors” contained in the accompanying prospectus as well as the risk factors contained in other documents incorporated by reference into this prospectus supplement.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities, or determined if this prospectus supplement or the accompanying prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
Offers to purchase the notes are being solicited from time to time by the agents listed below. The agents have agreed to use their reasonable efforts to sell the notes. There is no established trading market for the notes and there can be no assurance that a secondary market for the notes will develop.
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ABN AMRO Incorporated |
Banc of America Securities LLC |
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Barclays Capital |
BNP PARIBAS |
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BNY Capital Markets, Inc. |
Citigroup |
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Credit Suisse |
Deutsche Bank Securities |
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Goldman Sachs |
JPMorgan |
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Lehman Brothers |
Merrill Lynch |
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RBS Greenwich Capital |
Utendahl Capital Partners, L.P. |
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Wachovia Securities |
Williams Capital |
June 8, 2006
TABLE OF CONTENTS
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Page |
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Prospectus Supplement |
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S-3 |
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S-3 |
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S-4 |
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S-5 |
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S-6 |
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S-7 |
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S-9 |
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S-10 |
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Prospectus
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About this Prospectus |
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Where You Can Find More Information |
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Incorporation of Certain Documents By Reference |
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Forward-Looking Statements |
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The Company |
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Risk Factors |
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Ratio of Earnings to Fixed Charges |
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Use of Proceeds |
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Description of Debt Securities |
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Description of Warrants |
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ERISA Considerations |
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Certain U.S. Federal Income Tax Consequences |
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Plan of Distribution |
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Legal Matters |
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Experts |
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You should rely only on the information contained in this prospectus supplement, the accompanying prospectus and the applicable pricing supplement as well as the information incorporated by reference. We have not authorized anyone to provide you with information that is different. This document may only be used where it is legal to sell these notes. The information incorporated by reference or contained in this prospectus supplement or the accompanying prospectus may only be accurate on the date of this prospectus supplement.
S-2
WHERE YOU CAN FIND MORE INFORMATION
As required by the Securities Act of 1933, as amended, to which we refer as the Securities Act, we filed a registration statement on Form S-3 (No. 333- ), to which we refer as the registration statement, relating to the notes we are offering by this prospectus supplement and the accompanying prospectus. The registration statements includes additional information.
We file annual, quarterly and current reports and other information with the Securities and Exchange Commission, or 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 supplement.
Any reports filed by us with the SEC after the date of the accompanying prospectus and before the date that the offering of the securities by means of this prospectus supplement is terminated will automatically update and, where applicable, supersede any information contained in this prospectus supplement and the accompanying prospectus or incorporated by reference in this prospectus supplement or the accompanying 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 supplement and the accompanying 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 or applicable pricing supplement):
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Annual Report on Form 10-K for the year ended December 31, 2005. |
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Quarterly Report on Form 10-Q for the quarter ended March 31, 2006. |
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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 supplement and before the date that the offering of the securities by means of this prospectus supplement 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
Credit Corporation
301 North Walnut Street
Wilmington, Delaware 19801-2919
Attention: President
(302) 594-3350
S-3
This summary provides a brief overview of the terms of the offered notes. For a more complete understanding of the terms of the offered notes, before making your investment decision, you should carefully read:
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This prospectus supplement, which updates and changes information in the accompanying prospectus; |
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The accompanying prospectus, which (1) provides an overview of us and certain aspects of our business; (2) explains the general terms of debt securities that we may offer; and (3) explains certain terms of the notes that may be offered; |
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The applicable pricing supplement, which (1) contains the specific terms of the notes being offered and (2) updates and changes information in the accompanying prospectus and/or this prospectus supplement; and |
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The documents referred to in “Where You Can Find More Information” and “Incorporation of Certain Documents by Reference” above for information on us and for our financial statements. |
General Terms of the Notes
We may offer from time to time up to U.S. $20,000,000,000, or the equivalent of that amount in other currency units, of the notes of Series C described in this prospectus supplement. We refer to the offering of the notes as our medium-term note program. At the conclusion of this offering, including all notes we have previously issued, we will have issued up to $20,000,000,000 of the notes. The following summary describes the notes we are offering under this program in general terms only.
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The notes will mature nine months or more from the date of issuance and will pay interest, if any, on the dates specified in the applicable pricing supplement. |
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The notes will bear interest at either a fixed rate, which may be zero in the case of notes issued at an original issue discount, or a floating rate. |
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The notes will be issued in U.S. dollars, unless we specify otherwise in the applicable pricing supplement. |
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The notes may be either redeemed by us or repaid at your option, if specified in the applicable pricing supplement. |
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Payments of principal and/or interest on the notes may be linked to prices, changes in prices, or differences between prices, of currencies, commodities, securities, baskets of securities, or indices based on other price, economic or other measures as are described in the applicable pricing supplement. |
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We may issue amortizing notes that pay both interest and principal prior to the maturity of the notes. |
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The notes will not be listed on any securities exchange, unless we specify otherwise in the applicable pricing supplement. |
Forms of the Notes
Unless otherwise specified in the applicable pricing supplement, the notes that we offer under our medium-term note program will only be issued in fully registered form and will be represented by global securities registered in the name of a nominee of The Depository Trust Company, to which we refer as the DTC, as depositary under the indenture governing the notes, except under certain circumstances set forth in the indenture in which the global notes may be exchanged for certificates issued in definitive form. We refer you to “Description of the Debt Securities Notes—Global Securities” in the accompanying prospectus for information on DTC’s book-entry system.
S-4
IMPORTANT CURRENCY INFORMATION
Purchasers are required to pay for each note in the specified currency specified by us for that note. If requested by a prospective purchaser of notes having a specified currency other than U.S. dollars, the agent soliciting the offer to purchase may at its discretion arrange for the conversion of U.S. dollars into such specified currency to enable the purchaser to pay for such notes. Each such conversion will be made by the relevant agent on such terms and subject to such conditions, limitations and charges that the agent may from time to time establish in accordance with its regular foreign exchange practices. The purchaser must pay all costs of exchange.
S-5
Unless otherwise indicated in the applicable pricing supplement, we will add the net proceeds from the sale of the securities to our general funds, which we will use for financing our operations, including the purchase of receivables, the repayment of short-term senior debt incurred primarily to finance the purchase of receivables and for investment in short-term and medium-term financial assets.
We expect to incur additional debt in the future to carry on our business. The nature and amount of our short-term, medium-term and long-term debt and the proportionate amount of each can be expected to fluctuate as a result of market conditions and other factors.
S-6
The following description of the particular notes supplements the description of the general terms and provisions of the debt securities set forth in the accompanying prospectus. If any specific information regarding the notes in this prospectus supplement is inconsistent with the more general terms of the debt securities described in the accompanying prospectus, you should rely on the information in this prospectus supplement.
The pricing supplement for each offering of notes will contain the specific information and terms for that offering. If any information in the applicable pricing supplement, including any changes in the method of calculating interest on any note, is inconsistent with this prospectus supplement, you should rely on the information in the applicable pricing supplement. The applicable pricing supplement may also add, update or change information contained in the accompanying prospectus and this prospectus supplement. It is important for you to consider the information contained in the accompanying prospectus, this prospectus supplement and the applicable pricing supplement in making your investment decision.
General
We will issue the notes under the indenture described in the accompanying prospectus, dated as of , 2006, between us and The Bank of New York, as trustee. We may from time to time sell additional series of debt securities (as defined in the accompanying prospectus), including additional series of medium-term senior notes. See “Plan of Distribution.”
In this prospectus supplement, the accompanying prospectus and in any pricing supplement, unless otherwise specified or the context otherwise requires, references to “dollars,” “$” and “U.S.$” are to United States dollars.
We will offer the notes on a continuous basis and the notes will mature nine months or later from their date of issue, as specified in an applicable pricing supplement. Floating rate notes will mature on an interest payment date.
Unless otherwise specified for notes denominated in a currency other than U.S. dollars or as otherwise specified in an applicable pricing supplement, we will issue notes only in fully registered form in denominations of $100,000 and integral multiples of $1,000 in excess of that amount. The notes will be denominated in U.S. dollars and payments of principal of and premium, if any, and interest on the notes will be made in U.S. dollars, unless we provide otherwise in a pricing supplement. If any of the notes 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 notes is to be payable at your option or at our option in a currency, including a currency unit, other than that in which such notes are denominated, we will provide additional information pertaining to such notes in the pricing supplement.
Unless we specify otherwise in an applicable pricing supplement, the notes will be issued in book-entry form only through the facilities of DTC and will be registered in the name of the nominee of DTC. Transfers or exchanges of the notes may only be effected through a participating member of DTC. So long as DTC or its nominee is the registered owner of a note, DTC or its nominee, as the case may be, will be considered the sole owner or holder of the note for all purposes under the indenture. Except as set forth under “Description of Debt Securities—Global Securities and Global Clearance and Settlement Procedures” in the accompanying prospectus, no note issued in book-entry form will be issuable in certificated form.
In the pricing supplement relating to each note we will describe the following terms:
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the currency in which such note will be denominated (and, if such currency is other than U.S. dollars, certain other terms relating to such note, including the authorized denominations); |
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whether such note is a fixed rate note or a floating rate note; |
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the issue price (expressed as a percentage of the aggregate principal amount thereof), which is the price of the note at issuance; |
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the date on which such note will be issued; |
S-7
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the date on which such note will mature; |
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if such note is a fixed rate note, the annual rate at which the note will bear interest, if any; |
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if such note is a floating rate note, the interest rate basis, the initial interest rate, the interest reset dates, the interest payment dates, the index maturity, the maximum interest rate and the minimum interest rate, if any, and the spread and/or spread multiplier, if any (all of these terms are described below), and any other terms relating to the particular method of calculating the interest rate for such note; |
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whether such note may be redeemed at our option or repaid at your option prior to the maturity date, and, if so, the provisions relating to such redemption or repayment; and |
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any other terms of such notes not inconsistent with the provisions of the indenture. |
We refer to the accompanying prospectus for additional information relating to the calculation of interest rates on the notes.
Concerning the Trustee
The Bank of New York, the trustee under the indenture of the notes, provides corporate trust services to us. In addition, affiliates of the trustee provide investment banking, bank and corporate trust services and extend credit to our affiliate, the American Express Company and many of its subsidiaries. One of the agents for the notes, BNY Capital Markets, Inc., is an affiliate of the trustee. We and our affiliates may have other customary banking relationships (including other trusteeships) with the trustee.
S-8
Under the terms of an agency agreement, dated as of , 2006, we will offer the notes on a continuous basis through ABN AMRO Incorporated, Banc of America Securities LLC, Barclays Capital Inc., BNP Paribas Securities Corp., BNY Capital Markets, Inc., Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc., Goldman, Sachs & Co., Greenwich Capital Markets, Inc., J.P. Morgan Securities Inc., Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith Inc., The Williams Capital Group, L.P., Utendahl Capital Partners, L.P., and Wachovia Capital Markets, LLC as agents. Each of the agents has agreed to use its reasonable efforts to solicit offers to purchase the notes. We will pay each agent a commission of from 0.010% to 0.750% of the principal amount of each note sold through the agent. We will have the sole right to accept offers to purchase notes and we may reject any such offer, in whole or in part. Each agent shall have the right, in its discretion reasonably exercised, without notice to us, to reject any offer to purchase notes received by it, in whole or in part. We reserve the right to sell notes directly on our own behalf, in which case no commission will be payable to an agent.
We may also sell the notes to an agent as principal for its own account at discounts to be agreed upon at the time of sale. That agent may resell these notes to investors and other purchasers at a fixed offering price or at prevailing market prices, or prices related thereto at the time of resale or otherwise, as that agent determines and as we will specify in the applicable pricing supplement. An agent may offer the notes it has purchased as principal to other dealers. That agent may sell the notes to any dealer at a discount and, unless otherwise specified in the applicable pricing supplement, the discount allowed to any dealer will not be in excess of the discount that agent will receive from us. After the initial public offering of notes that an agent is to resell (in the case of notes to be resold at a fixed public offering price), the agent may change the public offering price, the concession and the discount.
Unless otherwise provided in the applicable pricing supplement, we do not intend to apply for the listing of the notes on a national securities exchange, but have been advised by the agents that they intend to make a market in these securities, as applicable laws and regulations permit. The agents are not obligated to do so, however, and the agents may discontinue making a market at any time without notice. No assurance can be given as to the liquidity of any trading market for these securities.
We estimate that our total expenses for the offering, excluding agent discounts or commissions, will be approximately $2,800,000.
Some of the agents or their affiliates have from time to time provided, and may in the future provide, investment banking and general financing and banking services to us and our affiliates, including American Express Company. To the extent that the proceeds of any offering of the notes are used to repay indebtedness owed to affiliates of the agents, such offerings will be made pursuant to Rule 2710(c)(8) of the Conduct Rules of the National Association of Securities Dealers, Inc. One of the agents for the notes, BNY Capital Markets, Inc., is an affiliate of the trustee.
In connection with this offering, agents may purchase and sell notes in the open market. These transactions may include over-allotment, syndicate covering transactions and stabilizing transactions. Over-allotment involves sales of notes in excess of the principal amount of notes to be purchased by the agents in this offering, which creates a short position for the agents. Covering transactions involve purchases of the notes 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 notes made for the purpose of preventing or retarding a decline in the market price of the notes 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 notes. They may also cause the price of the notes to be higher than the price that otherwise would exist in the open market in the absence of these transactions. The agents may conduct these transactions in the over-the-counter market or otherwise. If the agents commence any of these transactions, they may discontinue them at any time.
Each agent may be deemed to be an “underwriter” within the meaning of the Securities Act. We have agreed to indemnify each agent against liabilities under the Securities Act, or contribute to payments which the agents may be requested to make in that respect. We will reimburse the agents for customary legal and other expenses incurred by them in connection with the offer and sale of the notes.
Unless otherwise indicated in the applicable pricing supplement, the purchase price of the notes will be required to be paid in immediately available funds in New York, New York.
S-9
The financial statements as of and for the year ended December 31, 2005 incorporated in this prospectus supplement by reference to the Annual Report on Form 10-K for the year ended December 31, 2005, have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, to which we refer as PWC, an independent registered public accounting firm, given on the authority of said firm as experts in accounting and auditing.
Our financial statements and schedules as of and for the years ended December 31, 2004 and 2003 incorporated in this prospectus supplement by reference to the Annual Report on Form 10-K for the year ended December 31, 2005 have been audited by Ernst & Young LLP, to which we refer as E&Y, an independent registered public accounting firm as set forth in their report included in the Annual Report on Form 10-K for the year ended December 31, 2005. We have incorporated by reference into this prospectus supplement our audited financial statements and schedules as of December 31, 2004 and 2003, and for each of the two years in the period ended December 31, 2004 in reliance upon such report given on the authority of E&Y as experts in accounting and auditing.
On November 22, 2004, the Audit Committee of the Board of Directors of American Express Company appointed PWC as our independent registered public accounting firm for the fiscal year ending December 31, 2005 and dismissed E&Y as our auditors for the 2005 fiscal year. E&Y has completed its engagement as our auditors for the 2004 fiscal year.
With respect to the unaudited interim financial information for the period ended March 31, 2006 incorporated by reference herein and in the accompanying prospectus, PWC, our independent registered public accounting firm, has reported that they applied limited procedures in accordance with professional standards for a review of such information, which is substantially less in scope than an audit, and, therefore, that they do not express an opinion on that interim financial information. Accordingly, the degree of reliance on their reports on such information should be restricted in light of the limited nature of the review procedures applied. The accountants are not subject to the liability provisions of Section 11 of the Securities Act for their reports on the unaudited interim financial information because each such report is not a “report” or a “part” of the registration statement prepared or certified by the accountants within the meaning of Sections 7 and 11 of the Securities Act.
S-10
American Express Credit Corporation
Medium-Term
Senior Notes, Series C
Due Nine Months or More From Date
of Issue
PROSPECTUS SUPPLEMENT
June 8, 2006
(To prospectus dated June 8, 2006)
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ABN AMRO Incorporated |
Banc of America Securities LLC |
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Barclays Capital |
BNP PARIBAS |
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BNY Capital Markets, Inc. |
Citigroup |
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Credit Suisse |
Deutsche Bank Securities |
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Goldman Sachs |
JPMorgan |
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Lehman Brothers |
Merrill Lynch |
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RBS Greenwich Capital |
Utendahl Capital Partners, L.P. |
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Wachovia Securities |
Williams Capital |
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 $25,000,000,000 of securities registered under this registration statement. The assumed amount has been used to demonstrate the expenses of an offering and does not represent an estimate of the amount of securities that may be registered or distributed because such amount is unknown at this time.
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SEC registration fee |
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$ |
0* |
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Printing and engraving expenses |
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500,000 |
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Legal fees and expenses |
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500,000 |
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Blue Sky fees and expenses |
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10,000 |
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Accounting fees and expenses |
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400,000 |
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Fees and expenses of trustees and warrant agent |
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400,000 |
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Fees of Rating Agencies |
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1,500,000 |
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Miscellaneous |
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190,000 |
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Total |
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$ |
3,500,000 |
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* |
Deferred in accordance with Rules 456(b) and 457(r). |
Item 15. Indemnification of Directors and Officers.
Our by-laws require us to indemnify our directors and officers to the extent permitted by Delaware law. In addition, American Express Company has purchased insurance policies, which provide coverage for our directors and officers in certain situations where we cannot directly indemnify our directors or officers.
The form Underwriting Agreements filed as Exhibits 1(a) and 1(b) to this Registration Statement and the form Agency Agreement filed as Exhibit 1(c) 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-5 and II-6 is hereby incorporated by reference.
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
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(a) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
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(i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
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(ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement |
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(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 |
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II-1
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(iii) to include any material information with respect to the plan of distribution not previously disclosed in the |
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registration statement or any material change to such information in the registration statement; |
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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. |
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(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. |
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(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. |
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(d) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
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(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 |
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(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. |
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(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: |
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(i) Any preliminary prospectus or prospectus of the Registrant relating to the offering required to be filed pursuant to Rule 424; |
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(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; |
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(iii) The portion of any other free writing prospectus relating to the offering containing material information about an undersigned Registrant or its securities provided by or on behalf of an undersigned Registrant; and |
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II-2
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Registrant to the purchaser. |
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(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. |
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(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. |
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(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. |
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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 Wilmington, State of Delaware on the 8 th day of June, 2006.
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AMERICAN EXPRESS CREDIT CORPORATION |
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By: /s/ Christopher S. Forno |
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Christopher S. Forno |
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President and Chief Executive Officer |
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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 8th day of June , 2006.
| * By |
/s/
Stephen P. Norman
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Stephen
P. Norman
Attorney-in-fact |
II-4
EXHIBIT INDEX
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Exhibit |
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1(a) |
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Form of Underwriting Agreement for Debt Securities* |
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1(b) |
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Form of Underwriting Agreement for Warrants to Purchase Debt Securities** |
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1(c) |
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Form of Agency Agreement** |
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4(a) |
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Form of Indenture, dated as of , 2006, between the Company and The Bank of New York, as trustee* |
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4(b) |
— |
Form of Supplemental Indenture providing for an additional Trustee* |
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4(c) |
— |
Form of Note with optional redemption provisions* |
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4(d) |
— |
Form of Note with optional redemption and sinking fund provisions* |
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4(e) |
— |
Form of Original Issue Discount Note with optional redemption provisions* |
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4(f) |
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Form of Zero Coupon Note with optional redemption provisions* |
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4(g) |
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Form of Variable Rate Note with optional redemption and repayment provisions* |
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4(h) |
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Form of Extendible Note with optional redemption and repayment provisions* |
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4(i) |
— |
Form of Fixed Rate Medium-Term Note* |
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4(j) |
— |
Form of Floating Rate Medium-Term Note* |
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4(k) |
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Form of Warrant Agreement* |
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4(l) |
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Form of Permanent Global Registered Fixed Rate Medium-Term Senior Note, Series B* |
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4(m) |
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Form of Permanent Global Registered Floating Rate Medium-Term Senior Note, Series B* |
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5 |
— |
Opinion and Consent of David S. Carroll, Esq. * |
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12.1 |
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Computation in support of ratio of earnings to fixed charges of the Company (incorporated by reference to Exhibit 12.1 to the Company’s Quarterly Report on Form 10-Q for the three months ended March 31, 2006) |
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12.2 |
— |
Computation in support of ratio of earnings to fixed charges of American Express Company (incorporated by reference to Exhibit 12.2 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2005 and Exhibit 12.2 to the Company’s Quarterly Report on Form 10-Q for the three months ended March 31, 2006) |
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23(a) |
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Consent of Counsel (included in Exhibit 5)* |
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23(b) |
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Consent of Ernst & Young LLP* |
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23(c) |
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Consent of PricewaterhouseCoopers LLP* |
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24(a) |
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Power of Attorney* |
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25(a) |
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Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 of The Bank of New York* |
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* |
Filed herewith. |
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** |
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-5
Exhibit 1(a)
AMERICAN EXPRESS CREDIT CORPORATION
DEBT SECURITIES
UNDERWRITING AGREEMENT BASIC PROVISIONS
To the Representative or
Representatives named in the
Terms Agreement referred to
below
American Express Credit Corporation, a Delaware 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 , 2006, between the Company and 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 so supplemented or as it may be further 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.
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(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). |
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(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) 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 |
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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. |
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(c) The Disclosure Package, including the applicable term sheet, when considered as a whole, does 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. |
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(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” as defined in Rule 405. 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). |
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(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. |
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(f) Each Issuer Free Writing Prospectus listed on a schedule to the Terms Agreement 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. |
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(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 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). |
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(h) Ernst & Young LLP, for so long as financial statements of the Company and its consolidated subsidiaries certified by such registered public accounting firm, including their reports with respect thereto, are included or incorporated by reference in each Preliminary Final Prospectus and the Final Prospectus, are independent public accountants with respect to the Company within the meaning of the Act and the applicable published rules and regulations thereunder. |
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(i) 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. |
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(j) 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. |
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(k) 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, and (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. |
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(l) 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 |
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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. |
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(m) Neither the issue and sale of the Securities nor the consummation of any other of the transactions contemplated herein or in any Delayed Delivery Contracts (as defined in Section 3(b)), nor the fulfillment of the terms hereof or thereof, 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 or other constitutive documents of the Company or any of its 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 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 or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body, 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. |
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(n) To the best knowledge of the Company, no 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. |
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(o) Neither the Company nor any subsidiary 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 subsidiary or any of its properties, as applicable, except, in the case of (ii), where |
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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. |
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(p) All of the outstanding shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable and are owned by a wholly-owned subsidiary of American Express Company, a New York corporation (“ American Express ”), free and clear of any perfected security interest or any other security interests, claims, liens or encumbrances, and all of the outstanding shares of capital stock of such subsidiary have been duly and validly authorized and issued and are fully paid and non-assessable and are owned by American Express free and clear of any perfected security interest or any other security interests, claims, liens or encumbrances. |
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(q) 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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(r) Compliance by the Company and its subsidiaries with all of the provisions of the agreements, to which they are respectively subject, in connection with the purchase of receivables from various subsidiaries of American Express (such agreements being herein referred to as the “ Agreements of Sale and Purchase ”), will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result (except as contemplated thereby) in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company, any of its subsidiaries, American Express or any subsidiary of American Express that is a party to any of the Agreements of Sale and Purchase, pursuant to the terms of any agreement or instrument to which the Company, any of its subsidiaries, American Express or any subsidiary of American Express that is a party to any of the Agreements of Sale and Purchase is now or on the Execution Date or the Closing Date (as defined in Section 3(a)) will be a party, except in the case of (A) the Company or any subsidiary of the Company, to the extent any such conflict, breach, default or lien, charge or encumbrance would not be material to the Company and its subsidiaries, taken as a whole, or (B) American Express or any subsidiary of American Express that is a party to any of the Agreements of Sale and Purchase (other than subsidiaries of the Company), to the extent any such conflict, breach, default or lien, charge or encumbrance would not be material to American Express or any such subsidiary, as the case may be. |
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(s) The Agreements of Sale and Purchase conform in all material respects to the descriptions thereof included in the Base Prospectus and any applicable Preliminary Final Prospectus or Final Prospectus. |
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(t) The Agreements of Sale and Purchase to which the Company is a party have been duly authorized, executed and delivered by each party thereto, constitute valid |
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and legally binding instruments enforceable in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting the enforcement of creditors’ rights generally and general equity principles, regardless of whether such enforceability is considered in a proceeding in equity or at law, and no defaults exist in the performance by the parties thereto of any obligation, agreement or condition contained therein. |
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(u) The Agreements of Sale and Purchase to which any subsidiary of the Company is a party have been duly authorized, executed and delivered by each party thereto, constitute valid and legally binding instruments enforceable in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting the enforcement of creditors’ rights generally and general equity principles, regardless of whether such enforceability is considered in a proceeding in equity or at law, and no defaults exist in the performance by the parties thereto of any obligation, agreement or condition contained therein, except to the extent that the failure of any such Agreements of Sale and Purchase to which any such subsidiary of the Company is party to be duly authorized, executed or delivered, to constitute valid and legally binding instruments enforceable in accordance with its terms or any default in the performance by the parties thereto 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. |
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(v) 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. |
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(w) 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. |
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(x) 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. |
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.
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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 .
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(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 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. |
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(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 amount of Contract Securities set forth in the Terms Agreement, and the aggregate 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. |
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(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 amount of Contract Securities as the amount of Securities set forth opposite the name of such Underwriter bears to the total 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 amount of Securities to be purchased by all Underwriters shall be the total |
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amount of Securities set forth in the Terms Agreement less the aggregate amount of Contract Securities. |
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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. |
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5. Agreements . The Company agrees with the several Underwriters that: |
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(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 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. |
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(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. |
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(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 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 may cease until it is amended or supplemented and will prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission. |
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(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 |
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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 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. |
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(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. |
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(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. |
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(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 National Association of Securities Dealers, Inc., 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. |
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(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 (including fees and disbursements of counsel not exceeding the amount, if any, specified in the |
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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 the National Association of Securities Dealers, Inc. 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. |
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(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, 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. |
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(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 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. |
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(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. |
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(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. |
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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 of its obligations hereunder and to the following additional conditions:
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(a) The Final Prospectus, and any supplement thereto, 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 notice that would prevent its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. |
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(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), 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 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). |
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(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: |
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(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full corporate power and authority to conduct its business as described in the Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each |
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jurisdiction that requires such qualification or, if it is not so qualified in any jurisdiction, such failure so to qualify will not have a material adverse effect on the business or financial condition of the Company; |
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(ii) All the outstanding shares of common stock of the Company are owned by a wholly-owned subsidiary of American Express free and clear of any perfected security interest, any other security interest, claim, lien or encumbrance, and all outstanding shares of common stock of such subsidiary are owned by American Express free and clear of any perfected security interest, any other security interest, claim, lien or encumbrance; |
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(iii) 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 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 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; |
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(iv) 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; |
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(v) 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 |
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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 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; |
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(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, 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; |
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(vii) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company; |
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(viii) 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; |
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(ix) 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 its subsidiaries pursuant to (i) the charter or by-laws of the Company or its 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 to which the Company or its 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 or its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or its 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; |
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(x) The Agreements of Sale and Purchase to which the Company or any subsidiary of the Company is a party have been duly authorized, executed and delivered by each party thereto, and constitute legal, valid and binding instruments enforceable against the parties thereto in accordance with their respective terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time 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 the best knowledge of such counsel, no defaults exist in the performance by the parties thereto of any obligation, condition or agreement contained in the Agreements of Sale and Purchase to which the Company or any such subsidiary is a party; |
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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 Delaware, 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. |
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(d) You shall have received from Cleary Gottlieb Steen & Hamilton, LLP, 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. |
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(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: |
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(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 all the conditions on its part to be performed or satisfied at or prior to the Closing Date; |
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(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings |
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for that purpose have been instituted or, to the Company’s knowledge, threatened; and |
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(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). |
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(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. |
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(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. |
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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
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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.
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8. Indemnification and Contribution . |
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(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 Permitted Free Writing Prospectus 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; provided , further that the foregoing indemnity with respect to any Preliminary Final Prospectus, the Final Prospectus or any Permitted Free Writing Prospectus shall not inure to the benefit of any Underwriter from whom the person asserting any losses, claims, damages or liabilities otherwise covered by this paragraph purchased Securities, or to the benefit of any person controlling such Underwriter, if a copy of the Preliminary Final Prospectus, Final Prospectus or Permitted Free Writing Prospectus (as then amended and supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person if required so to have been delivered, at or prior to the entry into the contract of sale of Securities with such person, and if the Preliminary Final Prospectus, Final Prospectus or Permitted Free Writing Prospectus (as so amended or supplemented) would have cured the defect giving rise to such loss, claim, damage or liability. |
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(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 |
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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. |
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(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 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. |
| (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 |
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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 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. |
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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 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 liability to any nondefaulting 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 nondefaulting Underwriter for damages occasioned by its default hereunder. |
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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 securities generally on The New York Stock Exchange, Inc. shall have been wholly suspended or minimum or maximum 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 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. |
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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
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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 301 North Walnut Street, Wilmington, Delaware 19801, Attention of the President. 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 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.
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“Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder. |
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“Base Prospectus” shall mean the prospectus referred to in paragraph 1(a) above contained in the Registration Statement at the Effective Date. |
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“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. |
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“Commission” shall mean the Securities and Exchange Commission. |
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“Counsel for the Underwriters” shall mean Cleary Gottlieb Steen & Hamilton, LLP. |
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“Disclosure Package” shall mean (i) the Base Prospectus, as amended and supplemented prior to the Execution Time, (ii) the Issuer Free Writing Prospectuses, if any, identified in a schedule to the Terms Agreement, and (iii) any other Free Writing Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package. |
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“Effective Date” shall mean each date and time that the Registration Statement and any post-effective amendment or amendments thereto became or become effective. |
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“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder. |
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“Execution Time” shall mean the date and time that the Terms Agreement is executed and delivered by the parties hereto. |
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“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. |
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“Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405. |
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“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433. |
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“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. |
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“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. |
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“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. |
22
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“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended and the rules and regulations of the Commission promulgated thereunder. |
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“Well-Known Seasoned Issuer” shall mean a well-known seasoned issuer, as defined in Rule 405. |
23
EXHIBIT I
FORM OF TERMS AGREEMENT
Debt Securities
American Express Credit Corporation
301 North Walnut Street
Wilmington, Delaware 19801
Attention: President
Dear Sirs:
We (the “Representative(s)”) understand that American Express Credit Corporation, a Delaware corporation (the “ Company ”), proposes to issue and sell $ aggregate principal amount of its debt securities (the “ Securities ”). Subject to the terms and conditions set forth herein or incorporated by reference herein, the underwriters named in Schedule I hereto (the “ Underwriters ”) offer to purchase, severally and not jointly, the principal amount of Securities set forth therein opposite their respective names at % of the principal amount thereof, together with accrued interest, if any, thereon from , 20 to the Closing Date. The Closing Date shall be at 9:30 A.M. on , 20 at the offices of Cleary Gottlieb Steen & Hamilton, LLP.
The Securities shall have the following terms:
Title:
Currency:
Maturity:
Interest Rate:
Interest Payment Dates:
Redemption Provisions:
Additional Terms:
(Insert any delayed delivery provisions for Securities)
All the provisions contained in the document entitled “American Express Credit Corporation—Debt Securities—Underwriting Agreement Basic Provisions” and filed with the Commission on June 8, 2006 (the “Basic Provisions”), a copy of which you have previously
received, are herein incorporated by reference in their entirety and shall be deemed to be a part of this Terms Agreement, except as provided herein, to the same extent as if the Basic Provisions had been set forth in full herein. Terms defined in the Basic Provisions are used herein as therein defined.
Pursuant to Section 5(i) of the Basic Provisions, the Company’s agreement to reimburse the Underwriters for expenses incurred in connection with the matters referred to in Section 5(h) thereof and the preparation of memoranda relating thereto will include fees and disbursements of counsel not in excess of $ . (The Securities will be listed on .)
Please accept this offer no later than o’clock .M. on , 20 by signing a copy of this Terms Agreement in the space set forth below and returning the signed copy to us, or by sending us a written acceptance in the following form:
“We hereby accept your offer, set forth in the Terms Agreement, dated , 20 , to purchase the Securities on the terms set forth therein.”
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Very truly yours, |
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By |
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Title: |
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Address: |
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Accepted: |
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American Express Credit Corporation |
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By |
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Title: |
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2
SCHEDULE I
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Underwriters |
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Principal Amount of Securities |
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[Names of Underwriters] |
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$ |
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3
SCHEDULE II
(FREE WRITING PROSPECTUSES INCLUDED IN THE DISCLOSURE PACKAGE)
4
EXHIBIT II
AMERICAN EXPRESS CREDIT CORPORATION
[Insert specific title of securities] *
DELAYED DELIVERY CONTRACT
[Insert date of initial public offering] *
American Express Credit Corporation
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c/o |
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Gentlemen:
The undersigned hereby agrees to purchase from American Express Credit Corporation (hereinafter called the “ Company ”), and the Company agrees to sell to the undersigned, [ If one delayed closing, insert the following : as of the date hereof, for delivery on (the “ Delivery Date ”)]
$
principal amount of the Company’s [title of Securities] (the “ Securities ”), offered by the Company’s prospectus relating thereto, receipt of a copy of which is hereby acknowledged, at a purchase price of % of the principal amount thereof plus accrued interest, if any, and on the further terms and conditions set forth in this contract.
[ If two or more delayed closings, insert the following :
The undersigned will purchase from the Company as of the date hereof, for delivery on the dates set forth below, Securities in the principal amounts set forth below:
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Delivery Date |
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Principal Amount |
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$ |
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$ |
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$ |
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$ |
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Each of such delivery dates is hereinafter referred to as a “ Delivery Date .”]
Payment for the Securities that the undersigned has agreed to purchase for delivery on [the] [each] Delivery Date shall be made to the Company or its order by certified or official bank check in New York Clearing House funds or by wire transfer payable in same-day funds (or as otherwise specified in the Terms Agreement) at the office of Cleary Gottlieb Steen & Hamilton LLP at .M., time, on such Delivery Date upon delivery to the undersigned of the Securities to be purchased by the undersigned for delivery on such Delivery Date in definitive form and in such denominations and registered in such names as the undersigned may designate in writing to the Company not less than five full Business Days prior to such Delivery Date. If no designation is received, the Securities will be registered in the name of the undersigned and issued in a denomination equal to the aggregate principal amount of Securities to be purchased by the undersigned on such Delivery Date.
The obligation of the undersigned to take delivery of, and make payment for, Securities on [the] [each] Delivery Date shall be subject only to the conditions that (1) investment in the Securities shall not at such Delivery Date be prohibited under the laws of any jurisdiction in the United States to which the undersigned is subject, which investment the undersigned represents is not prohibited on the date hereof, and (2) the Company shall have delivered to the Underwriters the principal amount of the Securities to be purchased by them pursuant to the Underwriting Agreement referred to in the prospectus mentioned above and received payment therefor.
Promptly after completion of the sale to the Underwriters, the Company will mail or deliver to the undersigned at its address set forth below notice to such effect, accompanied by a copy of the opinion of counsel for the Company delivered to the Underwriters in connection therewith.
This contract will inure to the benefit of and be binding upon the parties hereto and their respective successors, but will not be assignable by either party hereto without the written consent of the other.
It is understood that the acceptance of this contract and any other similar contracts is in the Company’s sole discretion and without limiting the foregoing, need not be on a first-come, first-served basis. If this contract is acceptable to the Company, it is requested that the Company sign the form of acceptance below and mail or deliver one of the counterparts hereof to the undersigned at its address set forth below. This will become a binding contract between the Company and the undersigned when such counterpart is mailed or delivered.
2
This contract shall be governed by, and construed in accordance with, the laws of the State of New York.
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Very truly yours, |
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(Name of Purchaser) |
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By |
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(Title of Signatory) |
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(Address of Purchaser) |
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Accepted, as of the above date.
American Express Credit Corporation
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By |
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(Title of Signatory) |
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3
EXHIBIT III
The independent accountants referred to in Section 6(f) of the Basic Provisions shall deliver letters, in accordance with such section confirming that they are independent public accountants with respect to the Company within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and [that they have performed a review of the unaudited interim financial information of the Company for the -month period ended , 20 , and as at , 20 , [insert in each case the date of the most recent unaudited financial statements included or incorporated by reference in the Registration Statement and Final Prospectus] in accordance with Statement on Auditing Standards No. 100, and stating in effect that:
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(i) in their opinion the audited financial statements and financial statement schedules [and pro forma financial statements] included or incorporated by reference in the Registration Statement and the Final Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission; |
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(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company; [their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information for the -month period ended , 20 and as at , 20 [insert in each case the date of the most recent unaudited financial statements included or incorporated by reference in the Registration Statement and the Final Prospectus] [, as indicated in their report dated , 20 incorporated by reference in the Registration Statement and the Final Prospectus];] carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) that would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders and directors of the Company; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company as to transactions and events subsequent to , 20 , [insert date of the most recent audited financial statements included or incorporated by reference in the Registration Statement and Final Prospectus] , nothing came to their attention that caused them to believe that: |
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(1) any unaudited financial statements included or incorporated by reference in the Registration Statement and the Final Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in quarterly reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a |
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basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement and the Final Prospectus; |
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(2) with respect to the period subsequent to , 20 [insert date of the most recent financial statements (other than any capsule information), audited or unaudited, included or incorporated by reference in the Registration Statement and the Final Prospectus] , there were, at a specified date not more than five days prior to the date of the letter, any change in the capital stock, increase in long-term debt, or decrease in consolidated stockholders’ equity of the consolidated Company as compared with the amounts shown on the , 20 [insert same date as above] consolidated balance sheet included or incorporated by reference in the Registration Statement and the Final Prospectus, or for the period from , 20 [insert date one day after the date inserted above] to such specified date there were any decreases, as compared with [insert the appropriate comparative period; e.g .: the corresponding period in the preceding year; or, the corresponding period in the preceding quarter; or if no appropriate period exists, insert dollar amounts for each item] in consolidated revenues or consolidated net income, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; |
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(3) [If the interim financial statements included or incorporated by reference in the Registration Statement and the Final Prospectus are supplemented by later income statement information (so called “capsule” information), add: the unaudited amounts of [describe the capsule information and its location] do not agree with the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated by reference in the Registration Statement and the Final Prospectus; and [If the capsule information meets the minimum disclosure requirements of APB Opinion No. 28, paragraph 30, the section above should be expanded also to cover “conformity with generally accepted accounting principles”; see paragraph 38 of Statement on Auditing Standards No. 72] |
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(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its |
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2
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subsidiaries) set forth or incorporated by reference in the Registration Statement and the Final Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation[; and][.] |
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(iv) [If unaudited pro forma financial statements are included or incorporated by reference in the Registration Statement and the Final Prospectus, it is preferable for the accountants to prepare and include in the Registration Statement and the Final Prospectus an examination or review “report” on the pro forma financial statements (see bracketed language in paragraph (i) above). To the extent a report is not included on annual or interim pro forma financial statements, include the following in the comfort letter, which is based on Example ”D” of Statement on Auditing Standards No. 72: on the basis of a reading of the unaudited pro forma financial statements included or incorporated by reference in the Registration Statement and the Final Prospectus (the “pro forma financial statements”); carrying out certain specified procedures; inquiries of certain officials of the Company [and ] [insert name of acquired company, if appropriate] who have responsibility for financial and accounting matters; and proving the arithmetic accuracy of the application of the pro forma adjustments to the historical amounts in the pro forma financial statements, nothing came to their attention that caused them to believe that the pro forma financial statements do not comply as to form in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S-X or that the pro forma adjustments have not been properly applied to the historical amounts in the compilation of such statements.] |
3
Exhibit 4(a)
AMERICAN EXPRESS CREDIT CORPORATION
AND
THE BANK OF NEW YORK,
Trustee
Form of Indenture
Dated as of , 2006
Debt Securities
AMERICAN EXPRESS CREDIT CORPORATION
Indenture Dated as of , 2006
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.
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Provision of Trust Indenture Act of 1939 |
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Indenture Provision |
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§ 310(a)(1), (2) |
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§ 8.09 |
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(3) |
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Not Applicable |
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(4) |
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Not Applicable |
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(b) |
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§ 8.08; § 8.10 |
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(c) |
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Not Applicable |
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§ 311(a) |
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§ 8.13 (a) |
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(b) |
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§ 8.13 (b) |
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(b)(2) |
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§ 9.03 (a) (ii); § 9.03 (b) |
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(c) |
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Not Applicable |
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§ 312(a) |
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§ 9.01; § 9.02 (a) |
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(b) |
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§ 9.02 (b) |
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(c) |
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§ 9.02 (c) |
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§ 313(a) |
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§ 9.03 (a) |
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(b)(1) |
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Not Applicable |
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(2) |
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§ 9.03 (b) |
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(c) |
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§ 9.03 (a);§ 9.03 (b) |
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(d) |
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§ 9.03 (c) |
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§ 314(a) |
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§ 9.04 |
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(b) |
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Not Applicable |
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(c) |
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§ 1.02 |
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(d) |
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Not Applicable |
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(e) |
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§ 1.02 |
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(f) |
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Not Applicable |
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§ 315(a)(1) |
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§ 8.01 (a) (i) |
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(2) |
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§ 8.01 (a) (ii) |
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(b) |
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§ 8.02 |
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(c) |
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§ 8.01 (b) |
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(d)(1) |
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§ 8.01 (a) |
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(2) |
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§ 8.01 (c) (ii) |
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(3) |
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§ 8.01 (c) (iii) |
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(e) |
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§ 7.14 |
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§ 316(a) |
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§ 7.12; § 7.13 |
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(b) |
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§ 7.08 |
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(c) |
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§ 1.04 |
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§ 317(a)(1),(2) |
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§ 7.03; § 7.04 |
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(b) |
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§ 12.03 |
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§ 318(a) |
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§ 1.08 |
AMERICAN EXPRESS CREDIT CORPORATION
INDENTURE
dated as of , 2006
TABLE OF CONTENTS *
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Page |
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ARTICLE ONE |
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DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
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Section 1.01. |
Definitions |
1 |
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Section 1.02. |
Compliance Certificates and Opinions |
7 |
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Section 1.03. |
Form of Documents Delivered to Trustee |
8 |
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Section 1.04. |
Act of Holders |
8 |
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Section 1.05. |
Notices, etc., to Trustee and Company |
9 |
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Section 1.06. |
Notice to Holders; Waiver |
10 |
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Section 1.07. |
Immunity of Incorporators, Stockholders, Officers and Directors |
10 |
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Section 1.08. |
Conflict with Trust Indenture Act |
10 |
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Section 1.09. |
Effect of Headings and Table of Contents |
11 |
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Section 1.10. |
Successors and Assigns |
11 |
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Section 1.11. |
Separability Clause |
11 |
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Section 1.12. |
Benefits of Indenture |
11 |
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Section 1.13. |
Governing Law |
11 |
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Section 1.14. |
Cross References |
11 |
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Section 1.15. |
Counterparts |
11 |
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Section 1.16. |
Legal Holidays |
11 |
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Section 1.17. |
Securities in Foreign Currencies |
12 |
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ARTICLE TWO |
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SECURITY FORMS |
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Section 2.01. |
Forms Generally |
12 |
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Section 2.02. |
Form of Certificate of Authentication |
12 |
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Section 2.03. |
Securities in Global Form |
13 |
i
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ARTICLE THREE |
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THE SECURITIES |
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Section 3.01. |
Amount Unlimited; Issuable in Series |
13 |
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Section 3.02. |
Denominations |
16 |
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Section 3.03. |
Authentication and Dating |
17 |
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Section 3.04. |
Execution of Securities |
18 |
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Section 3.05. |
Exchange and Registration of Transfer of Securities |
20 |
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Section 3.06. |
Mutilated, Destroyed, Lost or Stolen Securities |
22 |
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Section 3.07. |
Temporary Securities |
22 |
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Section 3.08. |
Payment of Interest; Interest Rights Preserved |
23 |
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Section 3.09. |
Persons Deemed Owners |
24 |
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Section 3.10. |
Cancellation |
25 |
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Section 3.11. |
Computation of Interest |
25 |
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ARTICLE FOUR |
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REDEMPTION OF SECURITIES |
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Section 4.01. |
Applicability of Article |
25 |
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Section 4.02. |
Election to Redeem; Notice to Trustee |
25 |
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Section 4.03. |
Selection by Trustee of Securities to Be Redeemed |
26 |
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Section 4.04. |
Notice of Redemption |
26 |
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Section 4.05. |
Deposit of Redemption Price |
27 |
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Section 4.06. |
Securities Payable on Redemption Date |
27 |
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Section 4.07. |
Securities Redeemed in Part |
27 |
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ARTICLE FIVE |
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SINKING FUNDS |
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Section 5.01. |
Applicability of Article |
28 |
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Section 5.02. |
Satisfaction of Mandatory Sinking Fund Payments with Securities |
28 |
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Section 5.03. |
Redemption of Securities for Sinking Fund |
28 |
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ARTICLE SIX |
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SATISFACTION AND DISCHARGE |
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Section 6.01. |
Satisfaction and Discharge of Indenture |
30 |
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Section 6.02. |
Satisfaction, Discharge and Defeasance of Securities of any Series |
31 |
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Section 6.03. |
Application of Trust Money |
32 |
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Section 6.04. |
Paying Agent to Repay Moneys Held |
33 |
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Section 6.05. |
Return of Unclaimed Moneys |
33 |
ii
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ARTICLE SEVEN |
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REMEDIES |
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Section 7.01. |
Events of Default |
34 |
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Section 7.02. |
Acceleration of Maturity; Rescission and Annulment |
36 |
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Section 7.03. |
Collection of Indebtedness and Suits for Enforcement by Trustee |
37 |
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Section 7.04. |
Trustee May File Proofs of Claim |
38 |
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Section 7.05. |
Trustee May Enforce Claims without Possession of Securities |
39 |
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Section 7.06. |
Application of Money Collected |
39 |
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Section 7.07. |
Limitation on Suits |
39 |
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Section 7.08. |
Unconditional Right of Holders to Receive Principal, Premium and Interest |
40 |
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Section 7.09. |
Restoration of Rights and Remedies |
40 |
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Section 7.10. |
Rights and Remedies Cumulative |
40 |
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Section 7.11. |
Delay or Omission Not Waiver |
41 |
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Section 7.12. |
Control by Holders |
41 |
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Section 7.13. |
Waiver of Past Defaults |
41 |
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Section 7.14. |
Undertaking for Costs |
41 |
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Section 7.15. |
Waiver of Stay or Extension Laws |
42 |
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ARTICLE EIGHT |
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THE TRUSTEE |
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Section 8.01. |
Certain Duties and Responsibilities |
42 |
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Section 8.02. |
Notice of Defaults |
43 |
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Section 8.03. |
Certain Rights of Trustee |
44 |
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Section 8.04. |
Not Responsible for Recitals or Issuance of Securities |
45 |
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Section 8.05. |
May Hold Securities |
45 |
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Section 8.06. |
Money Held in Trust |
45 |
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Section 8.07. |
Compensation and Reimbursement |
45 |
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Section 8.08. |
Disqualification; Conflicting Interests |
46 |
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Section 8.09. |
Corporate Trustee Required; Different Trustees for Different Series; Eligibility |
46 |
|
Section 8.10. |
Resignation and Removal; Appointment of Successor |
47 |
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Section 8.11. |
Acceptance of Appointment by Successor |
48 |
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Section 8.12. |
Merger, Conversion, Consolidation or Succession to Business |
49 |
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Section 8.13. |
Preferential Collection of Claims against Company |
49 |
iii
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Section 8.14. |
Authenticating Agent |
49 |
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ARTICLE NINE |
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HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY |
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Section 9.01. |
Company to Furnish Trustee Names and Addresses of Holders |
51 |
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Section 9.02. |
Preservation of Information; Communications to Holders |
51 |
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Section 9.03. |
Reports by Trustee |
52 |
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Section 9.04. |
Reports by Company |
53 |
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ARTICLE TEN |
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CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE |
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Section 10.01. |
Company May Consolidate, etc., Only on Certain Terms |
53 |
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Section 10.02. |
Successor Corporation Substituted |
54 |
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ARTICLE ELEVEN |
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SUPPLEMENTAL INDENTURES |
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Section 11.01. |
Supplemental Indentures without Consent of Holders |
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Section 11.02. |
Supplemental Indentures with Consent of Holders |
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Section 11.03. |
Execution of Supplemental Indentures |
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Section 11.04. |
Notice of Supplemental Indenture |
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Section 11.05. |
Effect of Supplemental Indentures |
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Section 11.06. |
Conformity with Trust Indenture Act |
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Section 11.07. |
Reference in Securities to Supplemental Indentures |
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ARTICLE TWELVE |
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COVENANTS |
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Section 12.01. |
Payment of Principal, Premium and Interest |
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Section 12.02. |
Maintenance of Office or Agency |
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Section 12.03. |
Money for Securities Payments to Be Held in Trust |
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Section 12.04. |
Payment of Taxes and Other Claims |
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Section 12.05. |
Books of Account |
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Section 12.06. |
Financial Statements and Statement as to Compliance |
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Section 12.07. |
Corporate Existence |
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Section 12.08. |
Transactions with Affiliates |
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Section 12.09. |
Maintenance of Net Worth |
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Section 12.10. |
Restrictions on the Creation of Mortgages and Liens |
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Section 12.11. |
Ownership of Capital Stock of the Company |
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Section 12.12. |
Permit No Vacancy in Office of Trustee |
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Section 12.13. |
Other Instruments and Acts |
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Section 12.14. |
Waiver |
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Section 12.15. |
Release from Certain Covenants |
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INDENTURE, dated as of , 2006, between AMERICAN EXPRESS CREDIT CORPORATION, a Delaware corporation, having its principal office at 301 North Walnut Street, Wilmington, Delaware 19801-2919 (the “ Company ”), and THE BANK OF NEW YORK, a New York banking association having its principal office at 101 Barclay Street, New York, New York 10286, as trustee (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 indebtedness therefor; and for its corporate purposes, the Company has determined to make and issue its debentures, notes or other evidences of 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 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.
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.
“ American Express ” means American Express Company, a New York corporation, and any successor corporation.
“ 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 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.
“ Borrowing Base ” at any date means the sum of (i) the outstanding Debt owed by the Company to American Express or any Subsidiary of American Express at such date that is expressly subordinate and junior in right of payment to the payment of principal of (premium, if any) and interest on the Securities and (ii) Net Worth on such date.
“ 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.
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“ 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 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.
“ Common Stock, ” as applied to the capital stock of any corporation means any capital stock of such corporation, the right of which to share in distribution either of earnings or assets is without limitation in its charter or other similar document as to any fixed amount or percentage.
“ 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.
“ 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.
“ Event of Default: ” See Section 7.01 hereof.
“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.
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“ 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).
“ 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.
“ 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.
“ Net Worth ” at any date means the aggregate stated value of all classes of capital stock plus the aggregate amount of consolidated surplus (whether capital, earned, or other) of the Company and its consolidated Subsidiaries.
“ 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 and shall be acceptable to the Trustee.
“ Officer ” means 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.
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“ Opinion of Counsel ” means a written opinion of the Counsel of the Company, or other counsel for the Company, who may be an employee of the Company and, if not an employee of the Company, who shall be acceptable to the Trustee.
“ 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 :
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(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 |
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(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 the Trustee 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.
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“ 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 of such series are payable as specified as contemplated by Section 3.01 or, if not so specified, as specified in Section 12.02.
“ 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 the 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 ,” when used with respect to the Trustee, means any officer of the Trustee authorized by the Trustee to administer its corporate trust matters.
“ 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 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.
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“ 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 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.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include
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(a) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; |
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(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; |
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(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 |
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(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.
Section 1.04. Act of Holders .
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(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 |
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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. |
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(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. |
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(c) The ownership of Securities of any series shall be proved by the Securities Register. |
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(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. |
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(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,
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(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 |
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(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 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-
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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 any 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.
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.
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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), 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 such Interest Payment Date or Redemption Date or at the Stated Maturity, and no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
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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 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.
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 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:
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This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.
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U.S. Bank National Association, as Trustee |
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By |
[Authorized Officer or |
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Authorized Signatory] |
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or |
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By |
[ As Authenticating Agent] |
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By |
[Authorized Officer or |
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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.
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 the authority granted in a Board Resolution or established in one or more indentures supplemental hereto, prior to the issuance of any Securities of any series:
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(a) the title of the Securities of such series (which shall distinguish the Securities of such series from all other series of Securities); |
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(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); |
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(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); |
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(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; |
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(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; |
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(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 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; |
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(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; |
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(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; |
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(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; |
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(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; |
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(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; |
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(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; |
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(m) if other than denominations of $1,000 and any integral multiple thereof, the denominations in which Securities of such series shall be issuable; |
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(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; |
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(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; |
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(q) if the Securities of such series do not bear interest, the applicable dates for purposes of Section 9.01 hereof; |
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(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; |
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(s) if other than U.S. Bank National Association is to act as Trustee for the Securities of such series, the name and Corporate Trust Office of such Trustee; |
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(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; |
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(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; |
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(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; |
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(w) if the Securities of any such series are to be issuable as bearer securities, any and all matters incidental thereto; |
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(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 |
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(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). |
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
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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. 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 entitled to receive, 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:
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(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; |
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(b) an executed supplemental indenture, if any, relating thereto; |
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(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 |
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(d) an Opinion of Counsel stating |
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(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 supplemental indenture as permitted by Sections 2.01 and 3.01 hereof in conformity with the provisions of this Indenture; |
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(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 |
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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; |
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(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; |
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(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; |
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(v) that this Indenture is qualified under the Trust Indenture Act; and |
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(vi) such other matters as the Trustee may reasonably request. |
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(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.
Section 3.04. Execution of Securities .
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(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 |
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authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Indenture. |
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(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. |
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(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. |
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(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 |
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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.
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
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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).
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.
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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 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,
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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 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:
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(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). |
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(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.
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
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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 destroy cancelled Securities and deliver a certificate of such destruction to the Company 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.
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
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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 fair and 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.
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:
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(a) the Redemption Date, |
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(b) the Redemption Price and accrued interest, if any, |
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(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, |
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(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, |
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(e) the place where such Securities are to be surrendered for payment of the Redemption Price and accrued interest, if any, and |
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(f) that the redemption is for a sinking fund, if that be the case. |
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.
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 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.
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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 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
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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 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
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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
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(a) either |
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(i) all the Securities of such series theretofore authenticated and delivered (other than (A) Securities of such series that have been mutilated, 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 |
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(ii) all Securities of such series not theretofore delivered to such Trustee for cancellation |
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(A) have become due and payable, or |
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(B) will become due and payable at their Stated Maturity within one year, or |
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(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, |
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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 |
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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; |
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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 Outstanding Securities of such series, including all amounts due to the Trustee under Section 8.07 for such series, and |
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(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. |
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.
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:
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(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; |
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(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 |
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(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 .
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(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 |
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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. |
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(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.
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.
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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:
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(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 |
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(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 |
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(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 from which the Company has been released in accordance with Section 12.15 hereof) or established 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, 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 |
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(e) the failure at any time of American Express (i) to own, directly or through one or more wholly-owned Subsidiaries, 100% of the Common Stock of the Company, and (ii) if the Company shall have outstanding any shares of capital stock other than Common Stock having ordinary voting rights, to own, directly or through one or more wholly-owned Subsidiaries, shares representing at least 80% of the total combined voting power of all shares of the Company having ordinary voting rights, in violation of the covenants contained in Section 12.11 hereof, provided , however , that, subject to the |
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provisions of Section 8.01 hereof, a Responsible Officer of the Trustee, in the course of its administration of corporate trusts, shall have actual knowledge of such Event of Default or written notice of such Event of Default shall have been given to the Trustee by the Company or by the Holders of at least 25% in principal amount of the Outstanding Securities of such series; or |
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(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 or any Subsidiary 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 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 |
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(g) 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 |
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(h) 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 |
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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 |
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(i) 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. |
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Section7.02. 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 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 affected 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
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(a) the Company has paid or deposited with the Trustee for the Securities of such affected series a sum sufficient to pay |
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(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, |
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(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, |
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(iv) all sums paid or advanced by such Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of such Trustee, |
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its agents and counsel and any other amounts due such Trustee under Section 8.07 hereof; and |
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(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 or Section 12.14 hereof. |
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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
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(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, |
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(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 |
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(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 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 series may in its discretion proceed to protect and enforce its rights and the rights of the Holders
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of the Securities of such affected 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,
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(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 |
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(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.
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
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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:
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FIRST: To the payment of all amounts due such Trustee under Section 8.07 hereof; |
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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; |
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THIRD: The balance, if any, to the Company or any other Person or Persons entitled thereto. |
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
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(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 affected 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; |
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(3) such Holder or Holders have offered to such Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request; |
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(4) such Trustee for 60 days after receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and |
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(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 Interes t .
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 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 .
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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
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(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 |
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(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
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(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 |
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(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.
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, against any party litigant in such suit, having due regard to the merits and good faith of the
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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 .
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(a) Except during the continuance of an Event of Default with respect to a series of Securities, |
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(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 |
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(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 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. |
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(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. |
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(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 |
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(i) this Subsection shall not be construed to limit the effect of Subsection (a) of this Section 8.01; |
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(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; |
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(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 |
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(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. |
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(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. |
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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 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 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 .
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Except as otherwise provided in Section 8.01 hereof: |
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(a) the Trustee may rely and shall be 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; |
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(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; |
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(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; |
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(d) the Trustee may consult with counsel and the written 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; |
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(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 against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction; |
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(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 inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney; |
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(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; |
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(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 |
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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; and |
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(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). |
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 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
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(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); |
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(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 may be attributable to its negligence or bad faith; and |
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(c) to indemnify the Trustee for the Securities of any series and its agents for, and to hold them harmless against, any loss, 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 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
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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 .
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(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. |
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(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 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. |
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(d) If at any time: |
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(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 |
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(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 |
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(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
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situated, petition any court of competent jurisdiction for the removal of such Trustee and the appointment of a successor Trustee for such series.
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(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 Board Resolution, 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
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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 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.
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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 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-
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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 .
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(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 |
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(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 |
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(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
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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.
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(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. |
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
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(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 |
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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; |
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(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 |
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(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. |
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:
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(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; |
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(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 |
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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 |
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(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 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 Board Resolution, 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:
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(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 |
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(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 |
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to the execution of such supplemental indenture which is entitled to the benefit of such provision; or |
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(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 |
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(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 |
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(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 |
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(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 any series or any related coupons in any material respect unless such amendment is required to comply with the Bearer Rules; or |
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(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; |
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(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; |
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(i) to evidence any changes to Section 8.10 permitted by the terms thereof; |
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(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; |
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(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 or release of certain covenants pursuant to Section 12.15, |
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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; |
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(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; |
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(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 |
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(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 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,
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(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 |
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(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 |
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(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 |
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(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 entitled to receive, 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 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 Ac t .
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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.
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
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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.
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
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(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; |
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(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 |
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(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.
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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 any Subsidiary or upon the income, profits or property of the Company or any Subsidiary, 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 or any Subsidiary; 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. Books of Account .
The Company and any Subsidiary will keep true books of record and account in which full, true and correct entries in accordance with generally accepted accounting principles will be made of all dealings or transactions in relation to their respective businesses and activities.
Section 12.06. Financial Statements and Statement as to Complianc e .
The Company will
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(a) 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 consolidated income statement for, and a consolidated surplus statement and a consolidated balance sheet as of the end of, such fiscal year, of the Company and its Subsidiaries, all certified by independent registered public accountants selected by the Company (who may be the accountants who regularly audit the books of the Company and its Subsidiaries), accompanied by any report or comments by said accountants made in connection with the certification of such statements; |
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(b) file with the Trustee concurrently with the filing of the foregoing financial statements, an Officer’s Certificate, which need not comply with Section 1.02 hereof, stating that in the course of the performance by the signers of their duties as officers of the Company they would normally obtain knowledge of any default by the Company in the performance or fulfillment of any covenant, agreement or condition contained in this Indenture, and stating whether or not they have obtained knowledge of any such default, and, if so, specifying each such default of which the signers have knowledge and the nature thereof; and |
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(c) file with the Trustee concurrently with the filing of such financial statements, a written statement of the firm of independent registered public accountants who shall have certified such financial statements, addressed to the Company to the effect that in making the audit necessary to said certification, they have obtained no knowledge of any default by the Company in the fulfillment of any of the terms, covenants or conditions of the Securities of any series or this Indenture, or if such accountants shall have obtained from such examination knowledge of any such default, they shall disclose in such statement the default or defaults and the nature thereof, it being understood that such accountants shall not be liable, directly or indirectly, to anyone for failure to obtain |
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knowledge of any such default. Subject to the provisions of Section 8.01 hereof, the Trustee shall have no duty or responsibility in respect of any statement filed with it pursuant to this Subsection (c) except to exhibit the same to any Holder upon request. |
Section 12.07. 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 12.08. Transactions with Affiliates .
Neither the Company nor any Subsidiary will engage in any transaction with any Affiliate of the Company unless such transaction is on a basis not materially less favorable to the Company or such Subsidiary than would be the case if such transaction had been effected with a non-related third party.
Section 12.09. Maintenance of Net Worth .
The Company shall at all times maintain Net Worth of at least $50,000,000.
Section 12.10. Restrictions on the Creation of Mortgages and Liens .
The Company will not itself, and will not permit any Subsidiary to, create, assume or suffer to exist any mortgage, pledge, encumbrance, lien or charge of any kind upon any of its or their properties or assets, whether now owned or hereafter acquired, or acquire or agree to acquire any property or assets of any character under any conditional sale agreement or other title retention agreement, except (i) liens for taxes, assessments or governmental charges that are not at the time due or that are payable without penalty or as to which the Company or such Subsidiary has not yet been officially assessed or notified or that are being contested in good faith by appropriate proceedings; (ii) other liens, charges and encumbrances incidental to the conduct of its business or the ownership of its properties or assets that were not incurred in connection with the issuance or assumption of Debt, and that do not in the aggregate materially detract from the value of its properties or assets or materially impair the use thereof in the operation of its business; (iii) liens on deposits of the Company or of a Subsidiary with banks, in accordance with customary and established banking practice, in connection with the providing by the Company or a Subsidiary of financial accommodations to any Person in the ordinary course of business; (iv) mortgages or liens on properties or assets of a Subsidiary to secure obligations of such Subsidiary to the Company or one or more Subsidiaries; (v) any mortgage or other lien existing on any tangible property of any corporation at the time it becomes a Subsidiary, or existing prior to the time of acquisition upon any tangible property acquired by the Company or any Subsidiary through purchase, merger or consolidation or otherwise, whether or not assumed by the Company or by such Subsidiary, or placed upon tangible property being constructed or acquired by the Company or any Subsidiary to secure all or a portion of the purchase price thereof and (vi) any extension, renewal or replacement, in whole or in part, of any
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mortgage, pledge, encumbrance, lien or charge referred to in the foregoing clauses (i) to (v) inclusive, provided , however , that the amount of any and all obligations and indebtedness secured thereby shall not exceed the amount thereof so secured immediately prior to the time of such extension, renewal or replacement, and that such extension, renewal or replacement shall be limited to all or a part of the property which secured the mortgage, pledge, encumbrance, lien or charge so extended, renewed or replaced (plus improvements on such property), and provided, further, that any such mortgage or other lien shall not encumber any other property of the Company or such Subsidiary.
Notwithstanding the foregoing, the Company and any Subsidiary may at any time create, assume or suffer to exist any mortgage, pledge, encumbrance, lien or charge upon any of its or their properties or assets in connection with the issuance or assumption of secured Debt that would otherwise be subject to the foregoing restrictions if the aggregate amount of such secured Debt together with all other such secured Debt of the Company and its Subsidiaries does not exceed 10% of the Borrowing Base of the Company.
Section 12.11. Ownership of Capital Stock of the Company .
American Express will at all times own, directly or through one or more wholly-owned Subsidiaries, 100% of the Common Stock of the Company. If at any time or times the Company shall have outstanding any shares of capital stock other than Common Stock having ordinary voting rights, American Express will also at all times own, directly or through one or more wholly-owned Subsidiaries, shares representing not less than 80% of the total combined voting power of all shares of the Company having ordinary voting rights. In the event of any breach of either or both of the aforesaid covenants, the Company shall forthwith and, in any event, within ten days furnish the Trustee for the Securities of every series an Officer’s Certificate advising it of such development.
Section 12.12. 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 12.13. Other Instruments and Acts .
The Company will, 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 12.14. Waiver .
Without limitation of the rights of the Holders and the Company with respect to waivers and amendments set forth in Section 7.13 and Section 11.02, the Company may omit in any particular instance to comply with any covenant or condition set forth in Sections 12.04, 12.08, 12.09 and 12.10 with respect to Securities of any series, 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
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Outstanding of such 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 condition 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 for the Securities of each such series in respect of any such covenant or condition shall remain in full force and effect.
Section 12.15. Release from Certain Covenants .
Unless this Section 12.15 is specified, as contemplated by Section 3.01 hereof, to be inapplicable to Securities of a series, the provisions of Sections 12.04, 12.08, 12.09, 12.10 and 12.11 and clause(e) of Section 7.01 shall cease to be binding on the Company and shall be of no further force and effect with respect to the Outstanding Securities of such series from and after the ninety-first day after the date of the deposit referred to in paragraph (a) below, provided that the following conditions shall have been satisfied:
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(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 12.15, (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 to the Trustee, to pay and discharge the entire indebtedness on all Outstanding Securities of such series for principal (and premium, if any) or 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; |
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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; and |
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(c) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that all of the conditions precedent herein provided for relating to the foregoing relief from the provisions of Sections 12.04, 12.08, 12.09, 12.10, 12.11 and clause (e) of Section 7.01 have been complied with. |
The obligations described in clause (ii) of paragraph (a) of this Section 12.15 may include depositary receipts issued by banks or trust companies as custodians with respect to any such obligations or specific payments of interest or principal due on such obligations held by such
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custodians for the account of the holders of the depositary receipts; provided , however , that, except as required by law, no deduction may be made by such custodians from the amounts payable to the holders of such depositary receipts from the amounts received by such custodians in respect of such obligations or the specific payments of interest or principal thereon evidenced by such depositary receipts. Any money deposited with the Trustee for a series of Securities pursuant to paragraph (a) of this Section 12.15 and the proceeds of any obligations (or certificates evidencing obligations), including interest thereon and principal thereof, deposited with such Trustee pursuant to such paragraph (a) shall be held in trust by the Trustee and applied by such Trustee, if so directed by Company Order, 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), to the Persons entitled thereto, of the principal of and interest on the Securities of such series, but such money need not be segregated from other funds except to the extent required by law. Anything in this Section 12.15 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or Government Obligations held by it as provided in this Section 12.15 which, in the opinion of a nationally recognized firm of independent registered public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof that would then have been required to be deposited for the purpose for which such money or Government Obligations were deposited or received. Compliance with the provisions of this Section 12.15 shall not relieve the Company of its obligation to make payments of principal of and interest on the Securities of such series or, except with respect to Sections 12.04, 12.08, 12.09, 12.10, 12.11 and clause (e) of Section 7.01, of any other of its obligations under this Indenture and the Securities of such series.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all as of the day and year first above written.
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AMERICAN EXPRESS CREDIT CORPORATION |
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By: |
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Title: |
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THE BANK OF NEW YORK |
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By: |
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Title: |
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Exhibit 4(b)
(Form of Supplemental Indenture Providing for Additional Trustee)
AMERICAN EXPRESS CREDIT CORPORATION
AND
( )
Trustee
(Number) SUPPLEMENTAL INDENTURE
Dated as of (Date)
to
INDENTURE
Dated as of , 2006
(Number) SUPPLEMENTAL INDENTURE, dated as of (Date) (this “Supplemental Indenture”), made and entered into by and between AMERICAN EXPRESS CREDIT CORPORATION, a corporation organized and existing under the laws of the State of Delaware, having its principal office at 301 North Walnut Street, Wilmington, Delaware 19801 (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 , 2006 (as supplemented by ) (such Indenture (,as so supplemented and as the same may be further supplemented, including pursuant to this Supplemental Indenture,) being hereinafter referred to as the “Indenture”), with The Bank of New York, a New York banking association 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
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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
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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
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
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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.
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AMERICAN EXPRESS CREDIT CORPORATION |
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(Name of Trustee), as Supplemental Trustee |
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By |
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(Title) |
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Exhibit 4(c) (Form of Note |
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with Optional Redemption |
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Provisions) |
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(Form of Face of Note) |
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AMERICAN EXPRESS CREDIT CORPORATION |
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% Senior Note due |
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No. |
($) (if not |
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in U.S. dollars |
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specify currency) |
A MERICAN E XPRESS C REDIT C ORPORATION , a Delaware 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 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. 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 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 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
1
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 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 CREDIT CORPORATION has caused this instrument to be duly executed under its corporate seal.
Dated:
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A MERICAN E XPRESS C REDIT C ORPORATION |
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2
(Form of Reverse of Note)
AMERICAN EXPRESS CREDIT CORPORATION
% 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 , 2006, between the Company and The Bank of New York, as Trustee, (as supplemented from time to time) ((herein collectively) the “Indenture”), (pursuant to which the Company has designated as Trustee for the Notes) 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 % Senior Notes due (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 . 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.)
(Insert any alternative 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 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.
(The Indenture contains provisions for defeasance at any time of the entire principal of all the Securities of any series 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
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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.
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
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Exhibit 4(d) (Form of |
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Note with Optional |
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Redemption and Sinking |
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Fund Provisions) |
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(Form of Face of Note) |
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AMERICAN EXPRESS CREDIT CORPORATION |
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% Senior Note due |
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No. |
(S) (if not in |
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U.S. dollars |
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specify currency) |
AMERICAN EXPRESS CREDIT CORPORATION, a Delaware 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 , 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. 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 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 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 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
1
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 CREDIT CORPORATION has caused this instrument to be duly executed under its corporate seal.
Dated:
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AMERICAN EXPRESS CREDIT CORPORATION |
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By |
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President |
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Secretary |
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2
(Form of Reverse of Note)
AMERICAN EXPRESS CREDIT CORPORATION
% Senior Note due
This Note is one of a duly authorized issue of Notes, 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 , 2006, between the Company and The Bank of New York, as Trustee, (as supplemented from time to time) ((herein collectively) the “Indenture”), (pursuant to which the Company has designated as Trustee for the Notes) to which Indenture and all (other) 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”).
(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 MONTHS’ PERIOD BEGINNING
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(Insert alternate or additional optional 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.
(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 ($) (if not in U.S. dollars specify currency) principal amount of the Notes (or such lesser amount equal to the principal amount then Outstanding) at the sinking fund redemption price.
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At its option the Company may pay into the sinking fund for the retirement of Notes, in cash except as provided in the Indenture, on or before and on or before in each year thereafter to and including , an amount sufficient to redeem an additional principal amount of Notes up to but not to exceed ($) (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.)
(The Indenture contains provisions for defeasance at any time of the entire principal of all the Securities of any series upon compliance by the Company with certain conditions set forth therein.)
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.
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.
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.
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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.
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Exhibit 4(e) (Form of |
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Original Issue Discount |
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Note with Optional |
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Redemption Provisions) |
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(Form of Face of Note) |
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AMERICAN EXPRESS CREDIT CORPORATION |
For purposes of the United States Internal Revenue Code of 1986, as amended, the issue price of this Note is % of its principal amount and the Issue Date is .
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% Senior Note due |
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No. |
($) (if not in |
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U.S. dollars |
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specify currency) |
AMERICAN EXPRESS CREDIT CORPORATION, a Delaware 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 , 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. 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 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 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
1
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 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 CREDIT CORPORATION, has caused this instrument to be duly executed under its corporate seal.
Dated:
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AMERICAN EXPRESS CREDIT CORPORATION |
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By |
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President |
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Secretary |
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2
(Form of Reverse of Note)
AMERICAN EXPRESS CREDIT CORPORATION
% 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 , 2006, between the Company and The Bank of New York, as Trustee, (as supplemented from time to time) ((herein collectively) the “Indenture”), (pursuant to which the Company has designated , as Trustee for the Notes) 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 Securities designated % Senior Notes due (the “Notes”).
(Insert provisions regarding payment in other currency if series is not denominated in U.S. dollars.)
(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.)
(Insert any alternative 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 Indenture contains provisions for defeasance at any time of the entire principal of all the Securities of any series 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
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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.
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.
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Exhibit 4(f) (Form of Zero Coupon Note |
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with Optional Redemption Provision) |
(Form of Face of Note)
AMERICAN EXPRESS CREDIT CORPORATION
For purposes of the Internal Revenue Code of 1986, as amended, the issue price of this Note is % of its principal amount and the issue date is , 20 .
Zero Coupon Senior Note due
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No. |
($) (if not in
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AMERICAN EXPRESS CREDIT CORPORATION, a Delaware 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 , 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 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 or interest, in the event of a default in payment of principal, on this Note in (relevant currency) by filing a written request for such payment with the corporate trust office of the Trustee, at least fifteen 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 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.
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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 CREDIT CORPORATION has caused this instrument to be duly executed under its corporate seal.
Dated:
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AMERICAN EXPRESS CREDIT CORPORATION |
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By |
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President |
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Secretary |
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(Form of Reverse of Note)
AMERICAN EXPRESS CREDIT CORPORATION
Zero Coupon 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 , 2006) between the Company and The Bank of New York, as Trustee, (as supplemented from time to time) ((herein collectively) the “Indenture”), (pursuant to which the Company has designated as Trustee for the Notes) 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 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”).
(Insert provisions regarding payment in other foreign currency if series is not denominated in U.S. dollars.)
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.
(Insert any alternate 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 unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.
(The Indenture contains provisions for defeasance at any time of the entire principal of all the Securities or any series 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
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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. 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.
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.
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Exhibit 4(g)
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(Form of Face of Note)
AMERICAN EXPRESS CREDIT CORPORATION
Variable Rate Senior Note due
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No. |
($) (if not in
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AMERICAN EXPRESS CREDIT CORPORATION, a Delaware 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 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. 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 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 days prior to the due date in the case of payment of principal. The holder may elect to receive (relevant currency) for all principal
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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 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 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.
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IN WITNESS WHEREOF, AMERICAN EXPRESS CREDIT CORPORATION has caused this instrument to be duly executed under its corporate seal.
Dated:
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AMERICAN EXPRESS CREDIT CORPORATION |
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By |
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President |
Attest:
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Secretary |
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(Form of Reverse of Note)
AMERICAN EXPRESS CREDIT CORPORATION
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 , 2006, between the Company and The Bank of New York, as Trustee, (as supplemented from time to time) ((herein collectively) the “Indenture”), (pursuant to which the Company has designated as Trustee for the Notes) 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”).
(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 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 ($) (if not in U.S. dollars, specify currency) or
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multiples of ($) (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.)
(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 National Association of Securities Dealers. Inc. 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 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 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.
(The Indenture contains provisions for defeasance at any time of the entire principal of all the Securities of any series 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 amendments 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
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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.
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 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.
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(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
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(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 National Association of Securities Dealers, Inc. 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 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 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:
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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. |
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Exhibit 4(h) (Form of
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(Form of Face of Note)
AMERICAN EXPRESS CREDIT CORPORATION
-Year Extendible Senior Note
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No. |
($) (if not in U.S.
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AMERICAN EXPRESS CREDIT CORPORATION, a Delaware 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 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. 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 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
1
until changed by written notice to the Trustee prior to the Record Date in the case of payment of interest and at least fifteen 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.
IN WITNESS WHEREOF, AMERICAN EXPRESS CREDIT CORPORATION has caused this instrument to be duly executed under its corporate seal.
Dated:
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AMERICAN EXPRESS CREDIT CORPORATION |
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By |
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President |
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Attest: |
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Secretary |
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(Form of Reverse of Note)
AMERICAN EXPRESS CREDIT CORPORATION
-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 , 2006, between the Company and The Bank of New York, as Trustee, (as supplemented from time to time) ((herein collectively) the “Indenture”), (pursuant to which the Company has designated , as Trustee for the Notes) 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 -Year Extendible Senior Notes (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 National Association of Securities Dealers, Inc. 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 Business Days after the date of such facsimile transmission or letter, and such Note and form duly completed are received by
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the Company by such fifth 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.
(The Indenture contains provisions for defeasance at any time of the entire principal of all the Securities of any series 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.
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.
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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.
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(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
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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 National Association of Securities Dealers, Inc. 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 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 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:
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Note:
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REGISTERED |
MEDIUM TERM SENIOR NOTE, SERIES |
PRINCIPAL AMOUNT |
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(FIXED RATE) |
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No. FXR-
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INTEREST RATE |
MATURITY |
ORIGINAL ISSUE DATE |
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[terms to be inserted if this note is of original discount or zero coupon form] |
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AMERICAN EXPRESS CREDIT CORPORATION, a corporation duly organized and existing under the laws of the State of Delaware (herein referred to as the “Company”), for value received, hereby promises to pay to
, 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 (to the extent that the payment of such interest shall be legally enforceable), at such rate per annum on any overdue principal and premium and 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; 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 day of the calendar month preceding such or 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 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 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.
IN WITNESS WHEREOF, AMERICAN EXPRESS CREDIT CORPORATION has caused this instrument to be duly executed under its corporate seal.
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Dated: |
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TRUSTEE’S CERTIFICATE OF AUTHENTICATION |
AMERICAN EXPRESS CREDIT CORPORATION |
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and referred to in the within-mentioned indenture. |
By |
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as Trustee |
ATTEST |
President |
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Authorized Signature |
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Secretary |
AMERICAN EXPRESS CREDIT CORPORATION
MEDIUM-TERM
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 , 2006, between the Company and The Bank of New York, as Trustee (as supplemented from time to time) ((herein collectively) the “Indenture”) (pursuant to which the Company has designated as Trustee for the Notes) 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 Securities designated as the Medium-Term Senior Notes Series (Fixed Rate) (the “Notes”).
(Insert provisions regarding payment in other currency if series is not denominated in U.S. dollars.)
(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.)
(Insert
any alternative 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 Indenture contains provisions for defeasance at any time of the
entire principal of all the Securities of any series 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 which 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 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.
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.
ABBREVIATIONS
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TEN COM—as tenants in common |
UNIF GIFT MIN ACT— |
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Custodian |
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TEN ENT—as tenants by the entireties |
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JT TEN—as joint tenants
with right of survivorship and not
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Additional abbreviations may also be used though not in the above list. |
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FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto |
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PLEASE INSERT SOCIAL SECURITY |
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OR OTHER |
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IDENTIFYING NUMBER OF |
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ASSIGNEE |
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PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE |
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The within Note and all rights thereunder, hereby irrevocably constituting and appointing |
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attorney to transfer said Note on the books of the Company, with full power of substitution in the premises. |
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Dated: |
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NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within instrument in every particular, without alteration or enlargement or any change whatever.
Exhibit 4(j)
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Note Number
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Agent’s Name |
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AMERICAN EXPRESS
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PRINCIPAL
AMOUNT
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TRADE DATE |
SETTLEMENT
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AGENT’S
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PRICE 100% (Unless otherwise indicated) |
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MATURITY DATE |
CUST NO |
INTEREST RATE BASIS |
TAXPAYER ID
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TRANSFERRED |
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NAME AND ADDRESS OF REGISTERED OWNER |
MEDIUM TERM SENIOR NOTE, SERIES C (FLOATING RATE)
CONFIRMATION
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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 |
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REGISTERED
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MEDIUM TERM SENIOR NOTE, SERIES
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PRINCIPAL AMOUNT
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AMERICAN EXPRESS CREDIT CORPORATION, a corporation duly organized and existing under the laws of the State of Delaware (herein referred to as the “Company,”) for value received, hereby promises to pay to
, 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 (to the extent that the payment of such interest shall be legally enforceable), at such rate per annum on any overdue principal and premium and on any overdue instalment 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 nest 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
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this Note is registered at the close of business on the fifteenth 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.
IN WITNESS WHEREOF, AMERICAN EXPRESS CREDIT CORPORATION has caused this instrument to be duly executed under its corporate seal.
Dated:
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AMERICAN EXPRESS CREDIT CORPORATION
MEDIUM - TERM 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 , 2006, between the Company and The Bank of New York, as Trustee (as supplemented from time to time) ((herein collectively) the “Indenture”), (pursuant to which the Company has designated as Trustee for the Notes,) 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 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.”)
(Insert provisions regarding payment in other currency if series is not denominated in U.S. dollars.)
(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.)
(Insert any alternative redemption provisions.)
(Insert provisions for determining the Floating Rate.)
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 Indenture contains provisions for defeasance at any time of the entire principal of all the Securities of any series 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 which 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 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.
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.
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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.
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ABBREVIATIONS |
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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.
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TEN COM—as tenants in common |
UNIF GIFT MIN ACT— |
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Custodian |
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TEN ENT—as tenants by the entireties |
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(Cust) |
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(Minor) |
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JT TEN—as joint tenants with right of survivorship and not as tenants in common |
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Under Uniform Gifts to Minors Act |
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(State) |
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Additional abbreviations may also be used though not on the above list
FOR VALUE RECEIVED, the
undersigned hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
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PLEASE PRINT OR TYPEWRITE
NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
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the within Note and all rights thereunder, hereby irrevocably constituting and appointing |
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attorney |
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to transfer said Note on the books of the Company. with full power of substitution in the premises. |
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Dated: |
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NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within instrument in every particular, without alteration or enlargement or any change whatever
4
Exhibit 4(k)
AMERICAN EXPRESS CREDIT CORPORATION
AND
(Name of Warrant Agent),
as Warrant Agent
WARRANT AGREEMENT
Dated as of , 20
TABLE OF CONTENTS
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Page |
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ARTICLE I |
ISSUANCE OF WARRANTS AND EXECUTION AND DELIVERY OF WARRANT CERTIFICATES |
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Section 1.01. |
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Issuance of Warrants |
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Section 1.02. |
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Execution and Delivery of Warrant Certificates |
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Section 1.03. |
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Issuance of Warrant Certificates; Temporary Warrant Certificates |
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Section 1.04. |
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Registration, Transfer and Exchange |
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Section 1.05. |
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Definition of Holder |
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ARTICLE II |
WARRANT EXERCISE PRICE, DURATION AND EXERCISE OF WARRANTS |
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Section 2.01. |
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Warrant Exercise Price |
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Section 2.02. |
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Duration of Warrants |
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Section 2.03. |
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Exercise of Warrants |
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ARTICLE III |
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT CERTIFICATES |
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Section 3.01. |
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No Rights as Holder of Warrant Debt Securities Conferred by Warrants or Warrant Certificates |
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Section 3.02. |
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Lost, Stolen, Destroyed or Mutilated Warrant Certificates |
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Section 3.03. |
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Holder of Warrant Certificate May Enforce Rights |
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ARTICLE IV |
HOLDERS OF WARRANT CERTIFICATES; CANCELLATION |
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Section 4.01. |
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Treatment of the Holders of Warrant Certificates |
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Section 4.02. |
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Cancellation of Warrant Certificates |
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ARTICLE V |
CONCERNING THE WARRANT AGENT |
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Section 5.01. |
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Warrant Agent |
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Section 5.02. |
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Conditions of Warrant Agent’s Obligations |
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Section 5.03. |
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Resignation and Appointment of Successor |
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Section 5.04. |
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Payment of Taxes |
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ARTICLE VI |
MISCELLANEOUS |
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Section 6.01. |
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Amendment |
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Section 6.02. |
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Notices and Demands to the Company and Warrant Agent |
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Section 6.03. |
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Addresses |
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Section 6.04. |
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New York Law to Govern |
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Section 6.05. |
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Delivery of Prospectus |
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Section 6.06. |
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Obtaining of Governmental Approvals |
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Section 6.07. |
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Persons Having Rights under Warrant Agreement |
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Section 6.08. |
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Headings |
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Section 6.09. |
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Counterparts |
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Section 6.10. |
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Inspection of Agreement |
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TABLE
OF CONTENTS
(continued)
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Exhibit A – Form of Warrant Certificate
WARRANT AGREEMENT 1
THIS AGREEMENT dated as of , 20 , between AMERICAN EXPRESS CREDIT CORPORATION, a corporation duly organized and existing under the laws of the State of Delaware (the “Company”) and (Name of Warrant Agent), a trust company duly organized and existing under the laws of the (Jurisdiction of Organization), as Warrant Agent (the “Warrant Agent”),
W I T N E S S E T H:
WHEREAS, the Company has entered into an Indenture dated as of September 1, 1987, between the Company and Security Pacific National Trust Company (New York), a duly organized and existing national banking association, as trustee (the “Trustee”), (as supplemented from time to time) pursuant to which the Company proposes to issue a series of its debt securities in the principal amount of $ to be known as its ((the “Debt Securities”)) as ($ in principal amount of its ) (the “Warrant Debt Securities”), to be issued upon the exercise of the Warrants provided for herein; and
WHEREAS, the Company proposes to sell (the Debt Securities with) warrant certificates evidencing one or more warrants (the “Warrants” or, individually, a “Warrant”) representing the right to purchase the Warrant Debt Securities (such warrant certificates and other warrant certificates issued pursuant to this Agreement being herein called the “Warrant Certificates”); and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company in connection with the issuance, exchange, (transfer,) exercise and replacement of the Warrant Certificates, and in this Agreement wishes to set forth, among other things, the form and provisions of the Warrant Certificates and the terms and conditions on which they may be issued, exchanged, (transferred,) exercised and replaced;
NOW, THEREFORE, in consideration of the premises and of the mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE 1
I
SSUANCE OF
W
ARRANTS AND
E
XECUTION AND
D
ELIVERY OF
W
ARRANT
C
ERTIFICATES
SECTION 1.01. Issuance of Warrants . Warrants shall be designated as set forth in the Warrant Certificate therefor (and shall be issued initially in connection with the issuance of the Debt Securities). (The Warrants shall (not) be separately transferable (only after (the “Detachable Date”))). Each Warrant Certificate shall evidence one or more Warrants. Each Warrant evidenced thereby shall represent the right, subject to the provisions contained herein and therein, to purchase Warrant Debt Securities in the principal amount of ($ ). (Warrant Certificates shall be issued initially (in units) with the Debt
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Complete or modify the provisions of this form of Warrant Agreement as appropriate to reflect the terms of the Warrants and offered Warrant Debt Securities. Monetary amounts may be in U.S. dollars or foreign denominated currencies or composite currencies such as euro. |
Securities, and each Warrant Certificate (included in such unit) shall evidence initially Warrants for each ($ ) principal amount of Debt Securities.)
SECTION 1.02. Execution and Delivery of Warrant Certificates . Each Warrant Certificate, whenever issued, shall be in registered form substantially in the form set forth in Exhibit A hereto, shall be dated as of the date of original issuance thereof and may have such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed or engraved thereon as the officers of the Company executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Agreement, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange on which the Warrant Certificates may be listed, or to conform to usage. The Warrant Certificates shall be signed on behalf of the Company by its Chairman, President (insert titles of other appropriate officers) or any vice president and under its corporate seal attested by its secretary or any assistant secretary. Such signatures may be manual or facsimile signatures of the present or any future such authorized officers and may be imprinted or otherwise reproduced on the Warrant Certificates. The seal of the Company may be in the form of a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced on the Warrant Certificates.
No Warrant Certificate shall be valid or may be exercised until it has been countersigned by the manual signature of the Warrant Agent. Such signature of the Warrant Agent upon any Warrant Certificate executed by the Company shall be conclusive evidence that the Warrant Certificate so countersigned has been duly delivered hereunder.
In case at any time the name of the Warrant Agent shall be changed (including by operation of Section 5.03(e)) and at such time any of the Warrant Certificates shall have been countersigned but not delivered, the Warrant Agent may adopt the countersignature under its prior name; and in case at that time any of the Warrant Certificates shall not have been countersigned, the Warrant Agent may countersign such Warrant Certificates either in its prior name or in its changed name and in all such cases such Warrant Certificates shall have the full force provided in the Warrant Certificates and in this Agreement.
If any officer of the Company who shall have signed any of the Warrant Certificates either manually or by facsimile signature shall cease to be such officer before the Warrant Certificates so signed shall have been countersigned and delivered by the Warrant Agent, such Warrant Certificates nevertheless may be countersigned and delivered as though the person who signed such Warrant Certificates had not ceased to be such officer of the Company; and any Warrant Certificate may be signed on behalf of the Company by such persons as, at the actual date of the execution of such Warrant Certificate, shall be the proper officers of the Company, although at the date of the execution of this Agreement any such person was not such officer.
SECTION 1.03. Issuance of Warrant Certificates; Temporary Warrant Certificates . Warrant Certificates relating to Warrants to purchase an aggregate principal amount not exceeding ($ ) of Warrant Debt Securities (except as provided in Sections 1.04 and 3.02) may be executed by the Company and delivered to the Warrant Agent upon the execution of this Warrant Agreement or from time to time thereafter. The Warrant Agent shall, upon receipt of Warrant Certificates duly executed on behalf of the Company, countersign Warrant Certificates evidencing Warrants representing the right to purchase up to ($ ) aggregate principal
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amount of Warrant Debt Securities and shall deliver such Warrant Certificates to or upon the order of the Company. Subsequent to such original issuance of the Warrant Certificates, the Warrant Agent shall countersign a Warrant Certificate only if the Warrant Certificate is issued upon registration of transfer or in exchange or substitution for one or more previously countersigned Warrant Certificates, as hereinafter provided.
Pending the preparation of definitive Warrant Certificates, the Company may execute and the Warrant Agent shall countersign and deliver temporary Warrant Certificates (printed, lithographed, typewritten or otherwise reproduced, in each case in form satisfactory to the Warrant Agent). Temporary Warrant Certificates shall be issuable substantially in the form of the definitive Warrant Certificates but with such omissions, insertions and variations as may be appropriate for temporary Warrant Certificates, all as may be determined by the Company with the concurrence of the Warrant Agent. Temporary Warrant Certificates may contain such reference to any provision of this Warrant Agreement as may be appropriate. Every temporary Warrant Certificate shall be executed by the Company and shall be countersigned by the Warrant Agent upon the same conditions and in substantially the same manner, and with like effect, as the definitive Warrant Certificates. Without unreasonable delay, the Company shall execute and shall furnish definitive Warrant Certificates and thereupon temporary Warrant Certificates may be surrendered in exchange therefor without charge pursuant to Section 1.04, and the Warrant Agent shall countersign and deliver in exchange for such temporary Warrant Certificates a like aggregate principal amount of definitive Warrant Certificates of authorized denominations. Until so exchanged, the temporary Warrant Certificates shall be entitled to the same benefits under this Warrant Agreement as definitive Warrant Certificates.
SECTION 1.04. Registration, Transfer and Exchange . (Prior to the Detachable Date, a Warrant Certificate may be exchanged or transferred only together with the Debt Security to which the Warrant Certificate was initially attached, and only for the purpose of effecting or in conjunction with an exchange or transfer of such Debt Security. Prior to the Detachable Date, each transfer of the Debt Security on the register of the Debt Securities shall operate also to transfer the related Warrant Certificates.)
The Company shall keep at the office of the Warrant Agent specified in Section 2.03 a register or registers in which (after the Detachable Date), subject to such reasonable regulations as it may prescribe, it shall register, and shall register the transfer of, Warrant Certificates as in this Section provided. Such register shall be in written form in the English Language or in any other form capable of being converted into such form within a reasonable time.
(After the Detachable Date, upon) (Upon) due presentation for registration of transfer of any Warrant Certificates at the office of the Warrant Agent specified in Section 2.03, the Company shall execute and the Warrant Agent shall countersign and deliver in the name of the transferee or transferees a new Warrant Certificate or Warrant Certificates of the same tenor and for a like number of Warrants.
(After the Detachable Date,) (Any) Warrant Certificates may be exchanged for Warrant Certificates representing a like number of Warrants. A Warrant Certificate or Warrant Certificates to be exchanged (after the Detachable Date) shall be surrendered at the office of the Warrant Agent specified in Section 2.03, and the Company shall execute and the Warrant Agent shall countersign and deliver in exchange therefor the Warrant Certificate or Warrant Certificates
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which the holder making the exchange shall be entitled to receive, bearing numbers not contemporaneously outstanding.
The Company, the Warrant Agent and any other person may deem and treat the registered holder thereof as the absolute owner of any Warrant Certificate (notwithstanding any notation of ownership or other writing thereon) for the purpose of the exercise thereof and for all other purposes, and neither the Company nor the Warrant Agent nor any other person shall be affected by any notice to the contrary.
All Warrant Certificates presented for registration of transfer or exchange, or on exercise, shall (if so required by the Company or the Warrant Agent) be duly endorsed by, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company and the Warrant Agent duly executed by, the holder or his attorney duly authorized in writing.
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 exchange or registration of transfer of Warrant Certificates. No service charge shall be made for any such transaction.
All Warrant Certificates issued upon any registration of transfer or exchange of Warrant Certificates shall be valid obligations of the Company, evidencing the same rights, and entitled to the same benefits under this Warrant Agreement, as the Warrant Certificates surrendered upon such registration of transfer or exchange.
SECTION 1.05. Definition of Holder . “Holder” or “Warrant holder” or other similar term means (, prior to the Detachable Date, the registered owner of the Debt Security to which such Warrant Certificate was initially attached and thereafter) the registered holder of any Warrant Certificate. (Prior to the Detachable Date, the Company will, or will cause the registrar of the Debt Securities to, make available at all times to the Warrant Agent such information as to holders of the Debt Securities with Warrants as may be necessary to keep the Warrant Agent’s records up to date.)
ARITCLE II
W
ARRANT
E
XERCISE
P
RICE,
D
URATION AND
E
XERCISE OF
W
ARRANTS
SECTION 2.01. Warrant Exercise Price . Each Warrant entitles the holder of the Warrant Certificate therefor to purchase from the Company ($ ) principal amount of Warrant Debt Securities at a purchase price of ($ ) (insert other terms if applicable) (the “Exercise Price”), payable as hereinafter provided.
SECTION 2.02. Duration of Warrants . Each Warrant evidenced by a Warrant Certificate may be exercised in whole at any time, as specified herein, on or after (the date thereof) ( ) and at or before 5:00 P.M. New York time on , (unless extended in such manner, for such period or periods and subject to, such conditions as the Company may determine), as more fully set forth in the form of Warrant Certificate set forth in Exhibit A hereto (the “Expiration Date”). Each Warrant not exercised at or before 5:00 A.M.
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New York time on the Expiration Date shall become void, and all rights of the holder under the Warrant Certificate evidencing such Warrant and under this Agreement shall thereupon cease.
SECTION 2.03. Exercise of Warrants .
(a) During the period specified in Section 2.02, any whole number of Warrants, if the Warrant Certificate evidencing the same shall have been countersigned by the Warrant Agent, may be exercised by providing certain information set forth on the reverse side of the Warrant Certificate and by paying in full, in lawful money of (the United States of America) and (by bank wire transfer) in immediately available funds, the Exercise Price for each Warrant exercised, to the Warrant Agent at its principal corporate trust office, New York, New York 100; provided that such exercise is subject to receipt within five business days thereof by the Warrant Agent of the Warrant Certificate with the form of election to purchase Warrant Debt Securities set forth on the reverse side of the Warrant Certificate properly completed and duly executed. The date on which payment in full of the Exercise Price is received by the Warrant Agent shall, subject to receipt of the Warrant Certificate within five business days thereof as aforesaid, be deemed to be the date on which the Warrant is exercised. The Warrant Agent shall deposit all funds received by it in payment of the Exercise Price in the account of the Company maintained with it for such purpose and shall advise the Company immediately by telephone of the receipt and amount of such funds for the exercise of Warrants. The Warrant Agent shall promptly confirm such telephonic advice to the Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly as practicable, advise the Company and the Trustee of the number of Warrants exercised in accordance with the terms and conditions of this Agreement and the Warrant Certificates, the instructions of each holder of the Warrant Certificates evidencing such Warrants with respect to delivery of the Warrant Debt Securities to which such holder is entitled upon such exercise and delivery of Warrant Certificates evidencing the balance, if any, of the Warrants remaining after such exercise, and such other information as the Company or the Trustee shall reasonably request.
(c) As soon as practicable after the exercise of any Warrant or Warrants, the Company shall issue and deliver or cause to be issued and delivered (by the Trustee), pursuant to the Indenture, to or upon the order of the holder of the Warrant Certificate evidencing such Warrant or Warrants, the Warrant Debt Securities in authorized denominations to which such holder is entitled, in fully registered form, registered in such name or names as may be directed by such holder and if fewer than all the Warrants evidenced by such Warrant Certificate were exercised, a new Warrant Certificate for the number of Warrants remaining unexercised.
(d) The Company shall not be required to pay any stamp or other tax or other governmental charge required to be paid in connection with any transfer involved in the issue of the Warrant Debt Securities; and if any such transfer is involved, the Company shall not be required to issue or deliver any Warrant Debt Securities until such tax or other charge shall have been paid or it has been established to the Company’s satisfaction that no such tax or other charge is due.
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ARTICLE III
O
THER
P
ROVISIONS
R
ELATING TO
R
IGHTS OF
H
OLDERS
OF
W
ARRANT
C
ERTIFICATES
SECTION 3.01. No Rights as Holder of Warrant Debt Securities Conferred by Warrants or Warrant Certificates . No Warrant Certificate or warrant shall entitle the holder thereof to any of the rights of a holder of the Warrant Debt Securities, including, without limitation, the right to receive the payment of principal or premium, if any, or interest, if any, on the Warrant Debt Securities or to enforce any of the covenants of the Warrant Debt Securities or the Indenture.
SECTION 3.02. Lost, Stolen, Destroyed or Mutilated Warrant Certificates . In case any Warrant Certificate shall become mutilated or be destroyed, lost or stolen, in the absence of notice to the Company or the Warrant Agent that such Warrant Certificate has been acquired by a bona fide purchaser, the Company in the case of a mutilated Warrant Certificate shall, and in the case of a lost, stolen or destroyed Warrant Certificate may in its discretion, execute and upon a written request by the Company, signed in the name of the Company by its Chairman of the Board, any one of its Vice Chairmen, its President, any one of its Vice Presidents, its Treasurer, any one of its Assistant Treasurers, its comptroller, or any one of its Assistant Comptrollers, its Secretary or any one of its Assistant Secretaries, and delivered to the Warrant Agent the Warrant Agent shall deliver a new Warrant Certificate of the same tenor and for a like number of Warrants. In every case the applicant for a substituted Warrant Certificate shall surrender the Warrant Certificate to the Warrant Agent, if mutilated, and shall furnish to the Company and to the Warrant Agent such security and 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 Warrant Agent evidence to their satisfaction of the destruction, loss or theft of such Warrant Certificate and of the ownership thereof. Upon the issuance of any new Warrant Certificate under this Section 3.02, 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 Warrant Agent) in connection therewith. Every substituted Warrant Certificate executed and delivered pursuant to this Section in lieu of any lost, stolen or destroyed Warrant Certificate shall constitute an additional contractual obligation of the Company, whether or not the lost, stolen or destroyed Warrant Certificate shall be at any time enforceable by anyone, and shall be entitled to be the benefits of this Agreement equally and proportionately with any and all other Warrant Certificates duly executed and delivered hereunder. All Warrant Certificates shall be held and owned upon the express condition that the provisions of this Section 3.02 are exclusive with respect to the replacement of lost, stolen, destroyed or mutilated Warrant Certificates and shall preclude (to the extent permitted by law) any and all other rights or remedies with respect to the replacement of lost, stolen, destroyed or mutilated securities without their surrender.
SECTION 3.03. Holder of Warrant Certificate May Enforce Rights . Notwithstanding any of the provisions of this Agreement, any holder of any Warrant Certificate, without the consent of the Warrant Agent, the Trustee, the holder of any Warrant Debt Security or the holder of any other Warrant Certificate, may, in and for his own behalf, enforce, and may institute and maintain any suit, action or proceeding against the Company to enforce, or otherwise in respect of his right to exercise the Warrant or Warrants evidenced by his Warrant Certificate in the manner provided in his Warrant Certificate and in this Agreement.
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ARITCLE IV
H OLDERS OF W ARRANT C ERTIFICATES; C ANCELLATION
SECTION 4.01. Treatment of the Holders of Warrant Certificates . The Company, the Warrant Agent and all other persons may deem and treat the person in whose name any Warrant Certificate shall be registered upon the register maintained by the Warrant Agent pursuant to Section 1.04 (or by the registrar of the Debt Securities prior to the Detachable Date) as the absolute owner of such Warrant Certificate (notwithstanding any notation of ownership or other writing thereon) for the purpose of the exercise thereof and for all other purposes and as the person entitled to exercise the rights represented by the Warrants evidenced thereby; and neither the Company not the Warrant Agent (nor the registrar of the Debt Securities) nor any other person shall be affected by any notice to the contrary.
SECTION 4.02. Cancellation of Warrant Certificates . Any Warrant Certificate surrendered for exchange or exercise of the Warrants evidenced thereby shall, if surrendered to the Company (after the Detachable Date), be delivered to the Warrant Agent, and all Warrant Certificates surrendered or so delivered to the Warrant Agent shall be promptly cancelled by the Warrant Agent and shall not be reissued and, except as expressly permitted by this Agreement, no Warrant Certificate shall be issued hereunder in lieu thereof. The Warrant Agent shall from time to time destroy the cancelled Warrant Certificates and furnish to the Company a certificate evidencing such destruction.
ARTICLE V
C ONCERNING THE W ARRANT A GENT
SECTION 5.01. Warrant Agent . The Company hereby appoints (Name of Warrant Agent) as Warrant Agent of the Company in respect of the Warrants and the Warrant Certificates upon the terms and subject to the conditions set forth herein and in the Warrant Certificates; and hereby accepts such appointment. The Warrant Agent shall have the powers and authority granted to and conferred upon it in the Warrant Certificates and hereby and such further powers and authority to act on behalf of the Company as the Company may hereafter grant to or confer upon it. All the terms and provisions with respect to such powers and authority contained in the Warrant Certificates are subject to and governed by the terms and provisions hereof.
SECTION 5.02. Conditions of Warrant Agent’s Obligations . The Warrant Agent accepts its obligations herein set forth upon the terms and conditions hereof, including the following, to all of which the Company agrees and to all of which the rights hereunder of the holders from time to time of the Warrant Certificates shall be subject:
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(a) Compensation and Indemnification . The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for reasonable out-of-pocket expenses (including reasonable counsel fees) incurred by the Warrant Agent. The Company also agrees to indemnify the Warrant Agent for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on the part of the Warrant Agent, arising out of or in connection with its acting as such Warrant |
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Agent hereunder, as well as the costs and expenses of defending against any claim of liability in the premises. |
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(b) Agent for the Company . In acting under this Warrant Agreement and in connection with the Warrant Certificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or holders of the Warrant Certificates. |
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(c) Counsel . The Warrant Agent may consult with counsel satisfactory to it, and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion of such counsel. |
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(d) Documents . The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or thing suffered by it in reliance upon any Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. |
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(e) Certain Transactions . The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire any interest in, any Warrant Certificates, with the same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable law, it or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of holders of Warrant Debt Securities or other obligations of the Company as freely as if it were not the Warrant Agent hereunder. |
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(f) No Liability for Interest . The Warrant Agent shall not have any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Warrant Certificates. |
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(g) No Liability for Invalidity . The Warrant Agent shall not incur any liability with respect to the validity of this Agreement or any of the Warrant Certificates. |
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(h) No Responsibility for Representations . The Warrant Agent shall not be responsible for any of the recitals or representations herein or in the Warrant Certificates contained (except as to the Warrant Agent’s countersignature thereon), all of which are made solely by the Company. |
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(i) No Implied Obligations . The Warrant Agent shall be obligated to perform such duties as are herein and in the Warrant Certificates specifically set forth but no implied duties or obligations shall be read into this Agreement or the Warrant Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder which may tend to involve it in any expense or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Warrant Certificates countersigned by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the |
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application by the Company of the proceeds of sale of the Warrant Certificates or the proceeds received upon exercise of the Warrant Certificates. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained in the Warrant Certificates or in the case of the receipt of any written demand from a holder of a Warrant Certificate with respect to such default, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or, except as provided in Section 6.02, to make any demand upon the Company. |
SECTION 5.03. Resignation and Appointment of Successor . (a) The Company agrees, for the benefit of the holders from time to time of the Warrant Certificates, that there shall at all times be a Warrant Agent hereunder until all the Warrant Certificates are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving written notice to the Company of such intention on its part, specifying the date on which its desired resignation shall become effective, provided that such date shall not be less than three months after the date on which such notice is given unless the Company agrees to accept less notice. The Warrant Agent hereunder may be removed at any time by the filing with it of an instrument in writing signed by or on behalf of the Company and specifying such removal and the date when it shall become effective. Such resignation or removal shall take effect upon the appointment by the Company, as hereinafter provided, of a successor Warrant Agent (which shall be a bank or trust company organized under the laws of the United States or any state thereof and authorized under the laws of the jurisdiction of its organization to exercise corporate trust powers) and the acceptance of such appointment by such successor Warrant Agent. The obligation of the Company under Section 5.02(a) shall continue to the extent set forth therein notwithstanding the resignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or shall be removed, or shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver or liquidator of the Warrant Agent or of its property shall be appointed, or any public officer shall take charge or control of the Warrant Agent or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, a successor Warrant Agent, qualified as aforesaid, shall be appointed by the Company by an instrument in writing, filed with the successor Warrant Agent. Upon the appointment as aforesaid of a successor Warrant Agent and acceptance by the latter of such appointment, the Warrant Agent so superseded shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute, acknowledge and deliver to its predecessor and to the Company an instrument accepting such appointment hereunder, and thereupon such successor Warrant Agent, without any further act, deed or conveyance, shall become vested with all the authority, rights, powers, immunities, duties and obligations of such predecessor with like effect as if originally named as Warrant Agent hereunder, and such predecessor, upon payment of its charges and disbursements then unpaid, shall thereupon become obligated to transfer, deliver and pay over, and such successor Warrant Agent shall be entitled to receive, all moneys, securities and other property on deposit with or held by such predecessor, as Warrant Agent hereunder.
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(e) Any corporation into which the Warrant Agent hereunder may be merged or converted or any corporation with which the Warrant Agent may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a party, or any corporation to which the Warrant Agent shall sell or otherwise transfer all or substantially all the corporate trust business of the Warrant Agent, provided that it shall be qualified as aforesaid, shall be the successor Warrant Agent under this Agreement without the execution or filing of any paper or any further act on the part of any of the parties hereto.
SECTION 5.04. Payment of Taxes . The Company will pay all stamp and other taxes, if any, to which, under the laws of the United States of America, this Agreement or the original issuance of the Warrant Certificates may be subject.
ARTICLE VI
M ISCELLANEOUS
SECTION 6.01. Amendment . This Agreement may be amended or supplemented by the parties hereto, without the consent of the holder of any Warrant Certificate, for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective provision contained herein, or in regard to matters or questions arising under this Agreement as the Company and the Warrant Agent may deem necessary or desirable, provided such action shall not adversely affect the interests of the holders of the Warrant Certificates.
SECTION 6.02. Notices and Demands to the Company and Warrant Agent . If the Warrant Agent shall receive any notice or demand addressed to the Company by the holder of a Warrant Certificate pursuant to the provisions of the Warrant Certificates, the Warrant Agent shall promptly forward such notice or demand to the Company.
SECTION 6.03. Addresses . Any communications from the Company to the Warrant Agent with respect to this Agreement shall be addressed to the corporate trust office of the Warrant Agent which office, at the date hereof, is located at , Attention: (Corporate Trust Department), and any communications from the Warrant Agent to the Company with respect to this Agreement shall be addressed to American Express Credit Corporation, 301 North Walnut Street, Wilmington, Delaware 19801, Attention: (or such other address as shall be specified in writing by the Warrant Agent or by the Company, respectively).
SECTION 6.04. New York Law to Govern . This Agreement and each Warrant Certificate shall be deemed to be a contract under the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of such State, except as may otherwise be required by mandatory provisions of law.
SECTION 6.05. Delivery of Prospectus . To the extent required by law, the Company will furnish to the Warrant Agent sufficient copies of a prospectus and any necessary prospectus supplement relating to the Warrant Debt Securities deliverable upon exercise of Warrant Certificates (collectively the “Prospectus”) and the Warrant Agent agrees that upon the exercise of any Warrant Certificate by the holder thereof, the Warrant Agent will deliver to such holder,
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prior to or concurrently with the delivery of the Warrant Debt Securities issued upon such exercise, a Prospectus.
SECTION 6.06. Obtaining of Governmental Approvals . The Company will from time to time take all action which may be necessary to obtain and, to the extent reasonably practicable. keep effective any and all permits, consents and approvals of governmental agencies and authorities and securities acts filings under United States federal and state laws, which may be or become requisite in connection with the issuance, sale, transfer, and delivery of the Warrant Certificates, the exercise of the Warrants, the issuance, sale, transfer and delivery of the Warrant Debt Securities issued upon exercise of the Warrants or upon the expiration of the period during which the Warrants are exercisable.
SECTION 6.07. Persons Having Rights under Warrant Agreement . Nothing in this Agreement expressed or implied and nothing that may be inferred from any of the provisions hereof is intended, or shall be construed, to confer upon, or give to, any person or corporation other than the Company, the Warrant Agent and the Holders of the Warrant Certificates any right, remedy or claim under or by reason of this Agreement or of any covenant, condition, stipulation, promise or agreement hereof; and all covenants, conditions, stipulations, promises and agreements in this Agreement contained shall be for the sole and exclusive benefit of the Company and the Warrant Agent and their successors and holders of the Warrant Certificates.
SECTION 6.08. Headings . The descriptive headings of the several Articles and Sections of this Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions hereof.
SECTION 6.09. Counterparts . This Agreement may be executed in any number of counterparts, each of which so executed shall be deemed to be an original; but such counterparts shall together constitute but one and the same instrument.
SECTION 6.10. Inspection of Agreement . A copy of this Agreement shall be available at all reasonable times at the principal corporate trust office of the Warrant Agent, for inspection by the holder of any Warrant Certificate. (The Warrant Agent may require such holder to submit his Warrant Certificate for inspection by it.)
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the day and year first above written.
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(Corporate Seal) |
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A MERICAN E XPRESS C REDIT C ORPORATION |
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By |
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Attest: |
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(Title) |
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(Name of Warrant Agent) |
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(Corporate Seal) |
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By |
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(Title) |
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Attest: |
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(Title) |
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EXHIBIT
A
(Form of Warrant Certificate)
VALID
ONLY IF COUNTERSIGNED BY THE WARRANT AGENT AS
PROVIDED HEREIN.
No. W-
Warrant
Certificate Representing ( )
Warrants
to Purchase
(Title of Security)
OF
AMERICAN EXPRESS CREDIT CORPORATION
as
described herein
PURCHASE WARRANT
FOR (TITLE OF SECURITY) VOID AFTER THE CLOSE OF BUSINESS ON , 20, UNLESS EXTENDED
This certifies that (name of registered holder) is the owner of the above indicated number of Warrants, each Warrant entitling such holder to purchase, at any time (after and) on or before 5:00 P.M. New York time on , 20, unless such expiration date shall be extended as provided herein, ($ ) principal amount of (Title of Security) (the “Warrant Debt Securities”) of AMERICAN EXPRESS CREDIT CORPORATION, a Delaware corporation (the “Company”), issued and to be issued under the Indenture (as hereinafter defined), on the following basis: Each Warrant evidenced hereby entitles the holder hereof to purchase from the Company ($ ) principal amount of Warrant Debt Securities (at a price of ($ ) 1 (together with interest accrued on the Warrant Debt Securities (calculated on the basis of a 360 day year comprising 12 30-day months) from ) (the “Exercise Price”)) (insert other terms if applicable) payable as hereinafter provided. The registered owner may exercise (all or any part of) the Warrants evidenced hereby by providing certain information set forth on the back hereof and by paying in full, in lawful money of (the United States of America) and (by bank wire transfer) in immediately available funds, the Exercise Price for each Warrant exercised to the Warrant Agent (as hereinafter defined) and by surrendering this Warrant Certificate within five business days thereof, with the form of election to purchase on the back hereof properly completed and duly executed, at the principal corporate trust office of (Name of Warrant Agent), or its successor as warrant agent (the “Warrant Agent”) (currently at the address specified on the reverse hereof), and upon compliance with and subject to the conditions set forth herein and in the Warrant Agreement (as hereinafter defined).
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Monetary amounts may be in U.S. dollars or foreign denominated currencies or composite currencies such as euro. |
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This Warrant Certificate may be exercised, in whole or in part, to purchase Warrant Debt Securities in registered form in denominations of ($ ) and any integral multiples thereof. Upon any partial exercise of this Warrant Certificate there shall be issued to the holder hereof a new Warrant Certificate with respect to the number of Warrants as to which this Warrant Certificate was not exercised.
(The expiration date of the Warrants evidenced hereby may be extended by the Company by .)
This Warrant Certificate is issued under and in accordance with the Warrant Agreement dated as of , 20 (the “Warrant Agreement”), between the Company and the Warrant Agent and is subject to the terms and provisions contained in the Warrant Agreement, to all of which terms and provisions the holder of this Warrant Certificate consents by acceptance hereof. Copies of the Warrant Agreement are on file at the above-mentioned office of the Warrant Agent (and at ).
The Warrant Debt Securities to be issued and delivered upon the exercise of this Warrant Certificate will be issued under and in accordance with an Indenture dated as of September 1, 1987 between the Company and Security Pacific National Trust Company (New York), as Trustee, (as supplemented from time to time ((herein collectively) the “Indenture”) pursuant to which the Company has designated , as Trustee for the Warrant Debt Securities (with any successor or successors as such trustee being hereinafter referred to as the “Trustee”) and will be subject to the terms and provisions contained in the Warrant Debt Securities and in the Indenture. Copies of the Indenture, including the form of the Warrant Debt Securities, are on file at the principal corporate trust office of the Trustee (and at ).
(Prior to , 20 , this Warrant Certificate may be exchanged or transferred only together with the (Title of Debt Securities) (the “Debt Securities”) to which this Warrant Certificate was initially attached, and only for the purpose of effecting, or in conjunction with, an exchange or transfer. After such date, this) (Transfer of this) Warrant Certificate may be registered when this Warrant Certificate is surrendered at the corporate trust office of the Warrant Agent by the registered owner or his assigns, in person or by an attorney duly authorized in writing, in the manner and subject to the limitations provided in the Warrant Agreement. The Company, the Warrant Agent and any other person may deem and treat the person in whose name this Warrant Certificate is registered upon the register maintained by the Warrant Agent (or by the registrar of the Debt Securities prior to , 20 ) as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon), for the purpose of the exercise hereof and for all other purposes, and neither the Company nor the Warrant Agent (nor the registrar of the Debt Securities) nor any other person shall be affected by any notice to the contrary.)
(Except as provided in the immediately preceding paragraph, after) (After) countersignature by the Warrant Agent and prior to the expiration of this Warrant Certificate, this Warrant Certificate may be (registered for transfer or) exchanged at the principal corporate trust office of the Warrant Agent for Warrant Certificates representing the same aggregate number of Warrants.
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This Warrant Certificate shall not entitle the holder hereof to any of the rights of a holder of the Warrant Debt Securities, including, without limitation, the right to receive payments of principal of or premium, if any, and interest, if any, on the Warrant Debt Securities or to enforce any of the covenants of the Warrant Debt Securities or the Indenture. This Warrant Certificate shall not be valid or obligatory for any purpose until countersigned by the Warrant Agent.
Dated as of , 20.
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A MERICAN E XPRESS C REDIT C ORPORATION |
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Countersigned: |
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(Name of Warrant Agent),
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Authorized Signature |
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(Reverse of Warrant Certificate)
Instructions for Exercise of Warrant
To exercise the Warrants represented hereby, the Warrantholder should pay, in full, in lawful money of (the United States of America) and (by bank wire transfer) in immediately available funds, the Exercise Price for Warrants exercised to (the Warrant Agent) (to the order of American Express Credit Corporation, c/o (Name of Warrant Agent, for credit to Account No. ,) with instructions specifying the name of the Warrantholder and the number of Warrants exercised by such Warrantholder. In addition, the Warrantholder should complete the information required below and mail this Warrant Certificate by registered mail or deliver this Warrant Certificate by hand to the Warrant Agent at the address set forth below. This Warrant Certificate, properly completed and duly executed, must be received by the Warrant Agent within five business days of any such payment before any Warrant Debt Securities subject hereto will be issued.
Election
to Purchase
(To be executed upon exercise of Warrant)
The undersigned hereby irrevocably elects to exercise Warrants, represented by the within Warrant Certificate, to purchase ($ ) principal amount of the (Title of Securities) (the “Warrant Debt Securities”) of American Express Credit Corporation and, represents that the undersigned has tendered payment for such Warrant Debt Securities (by bank wire transfer) in immediately available funds to (the Warrant Agent) to the order of American Express Credit Corporation, c/o (Name of Warrant Agent, for credit to Account No. ,) in the amount of ($ ) in accordance with the terms hereof. The undersigned requests that said principal amount of Warrant Debt Securities be in fully registered form, in the authorized denominations, (registered in such names) and delivered, all as specified in accordance with the instructions set forth below.
If said principal amount of Warrant Debt Securities is less than all the Warrant Debt Securities purchasable hereunder, the undersigned requests that a new Warrant Certificate representing the remaining balance of the Warrants evidenced hereby be issued and delivered to the undersigned unless otherwise specified in the instruction below.
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Dated: |
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(Please Print) |
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(Insert Social Security
or Taxpayer
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Signature (Must conform
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This Warrant may be exercised at the following address:
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By mail to |
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Attention: |
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Instructions as to form and delivery of Warrant Debt Securities and/or Warrant Certificates (if other than as indicated above):
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(Form of Assignment for Registered Warrants)
(To
be executed by the Registered Holder
in order to transfer Warrants)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
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(Please insert Social Security or Taxpayer
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(Please print or typewrite name and address of Assignee) |
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___________________________________________Warrants represented by this Warrant Certificate, and does hereby irrevocably constitute and appoint ______________, Attorney to transfer such warrants on the books of the Issuer, with full power of substitution in the premises. |
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(Must conform exactly to
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Signature Guaranteed: |
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EXHIBIT 4(l)
Form of Permanent Global Registered Fixed Rate Note
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 BY 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.
AMERICAN EXPRESS CREDIT CORPORATION
Medium-Term Senior Notes, Series C
Due Nine Months or More from the Date of Issuance
(Fixed Rate)
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REGISTERED
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CUSIP NO._____________ |
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Indexed Principal Note: (If yes, see attached) |
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Amortizing Note: |
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Repayment Terms: |
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AMERICAN EXPRESS CREDIT CORPORATION, a corporation duly organized and existing under the laws of the State of Delaware (herein referred to as the “Company”), for value received hereby promises to pay CEDE & CO. or registered assigns, (a) the Principal Amount or, in the case of an Indexed Principal Note, the face amount adjusted by reference to prices, changes in prices, or differences between prices, of securities, currencies, intangibles, goods, articles or commodities or by such other objective price, economic or other measures (an “Index”) as described on the face of this Note or in the applicable pricing supplement, in the Specified Currency on the Stated Maturity date shown above, or earlier if and to the extent so provided herein, and (b) accrued interest on the Principal Amount then outstanding (or in the case of an Indexed Principal Note, the face amount then outstanding) at the Interest Rate shown above from the Original Issue Date shown above or from the most recent date to which interest has been paid or duly provided for, semiannually in arrears on February 1 and August 1, commencing with the February 1 or August 1 following the Original Issue Date shown above (the “Interest Payment Dates”) as specified on the face of this Note or in the applicable pricing supplement and at the date on which the principal of this Note becomes due and payable, whether at the Stated Maturity or by declaration of acceleration or otherwise (“Maturity”), until, in either case, the Principal Amount then outstanding or the face amount is paid or duly provided for in accordance with the terms hereof.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof and in any applicable pricing supplement attached hereto or delivered herewith, and such further provisions shall for all purposes have the same effect as if fully set forth in this place.
This Note shall not become valid or obligatory for any purpose unless and until the certificate of authentication hereon shall have been executed by the Trustee, or its successor, under the Indenture referred to herein.
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IN WITNESS WHEREOF, American Express Credit Corporation has caused this Global Note to be duly executed under its corporate seal.
Dated:
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AMERICAN EXPRESS CREDIT CORPORATION |
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By: |
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Authorized Officer |
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CERTIFICATE OF AUTHENTICATION |
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This is one of the Securities issued under the within-mentioned Indenture.
Dated:
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[TRUSTEE]. |
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By |
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Authorized Signatory |
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REVERSE OF GLOBAL FIXED RATE NOTE
This Note is one of a series of duly authorized debentures, notes or other evidences of indebtedness (hereinafter called the “Securities”) of the Company, all such Securities issued and to be issued under an indenture dated as of , 2006, between the Company and The Bank of New York, as trustee (as supplemented from time to time hereafter, called the “Indenture”), pursuant to which the Company has designated The Bank of New York as trustee for the Notes (the “Trustee”), to which Indenture reference is hereby made for a statement 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 or repurchase 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 Medium-Term Senior Notes, Series C (Fixed Rate Notes) (the “Notes”).
Payment of the principal of, and interest on, this Note will be made in immediately available funds at the office or agency of the Trustee maintained for that purpose in the Borough of Manhattan, The City of New York, State of New York, in such coin or currency of the United States of America or other currency or composite currency, as specified on the face of this Note or in the applicable pricing supplement, as at the time of payment shall be legal tender for payment of public and private debts; provided, however, that at the option of the Company payment of interest on any Note issued in definitive form other than interest due at the Stated Maturity date shown above may be made by check mailed to the address of the person entitled thereto as such address shall appear in the Securities Register. Interest will be paid to persons in whose names the Notes are registered at the close of business on January 15 or July 15, as the case may be, prior to any Interest Payment Date (the “Regular Record Date”). Interest shall be computed on the basis of a 360-day year and of twelve 30-day months from the Original Issue Date shown above or from the most recent Interest Payment Date to which interest has been paid or duly provided for. Unless an Event of Default with respect to the Notes shall have occurred and be continuing or as otherwise set forth in the Indenture, Notes in definitive form will not be issued.
Indexed Notes
If this Note is an Indexed Principal Note, then the Principal Amount payable at Maturity is determined by reference to the amount designated on the face of this Note or in the applicable pricing supplement as the face amount of this Note and by reference to the Index as described on the face hereof or in the applicable pricing supplement. The Principal Amount payable at Maturity may be different from the face amount. Principal Amount payable at Stated Maturity will be calculated in the manner set forth in the applicable pricing supplement.
Redemption and Repayment
If so specified on the face hereof or in the applicable pricing supplement, the Company may, at its option, redeem this Note in whole or in part, on the Redemption Date specified herein, at the Redemption Price (together with accrued interest to such Redemption Date) specified herein. Provisions regarding requirements and procedures for redemption will be set forth in the applicable pricing supplement.
If so specified on the face hereof or in the applicable pricing supplement, this Note will be repayable prior to Maturity at the option of the holder on the Repayment Dates shown on the face
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hereof or in the applicable pricing supplement at the Repayment Prices shown on the face hereof or in the applicable pricing supplement, together with interest accrued to the date of repayment. Provisions regarding requirements and procedures for repayment will be set forth in the applicable pricing supplement.
Unless otherwise specified on the face hereof or in the applicable pricing supplement, this Note will not be subject to any sinking fund.
Other Terms
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 (as defined in the Indenture) with respect to the Notes, 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 Notes of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the holders of not less than a majority in aggregate Principal Amount of the Outstanding Securities of each series to be affected thereby. The Indenture also permits, with certain exceptions as therein provided, the holders of not less than a majority in aggregate Principal Amount of outstanding Notes of any series, on behalf of the holders of all the Notes 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 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 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 set forth therein, the transfer of this Note is registrable 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 Borough of Manhattan, The City of New York, State of New York, 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 in registered form without coupons in denominations of $100,000 and any larger amount that is an integral multiple of $1,000. 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.
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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.
In case this Note shall at any time become mutilated, destroyed, stolen or lost and this Note or evidence of the loss, theft, or destruction hereof (together with such indemnity and such other documents or proof as may be required by the Company or the Trustee) shall be delivered to the principal corporate trust office of the Trustee, a new Note of like tenor and Principal Amount will be issued by the Company in exchange for, or in lieu of, this Note. All expenses and reasonable charges associated with procuring such indemnity and with the preparation, authentication and delivery of a new Note shall be borne by the holder of this Note.
Holders of Securities may not enforce their rights pursuant to the Indenture or the Note except as provided in the Indenture. Certain terms used in this Note which are defined in the Indenture have the meaning 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 holder 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.
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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:
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TEN
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-as tenants in common |
UNIF
GIFT MIN
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-as tenants by the entireties |
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-as joint tenants with right of survivorship and not as tenants in common |
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Under Uniform Gifts to
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Additional abbreviations may also be used though not in the above list
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company to repay $_______Principal Amount of the within Note, pursuant to its terms, on the “Repayment Date” first occurring after the date of receipt of the within Note as specified below, together with interest thereon accrued to the date of repayment, to the undersigned at:
(Please Print or Type Name and Address of the Undersigned)
and to issue to the undersigned, pursuant to the terms of the Indenture, a new Note or Notes representing the remaining Principal Amount of this Note.
For this Option to Elect Repayment to be effective, this Note with the Option to Elect Repayment duly completed must be received by the Company within the relevant time period set forth above at its office or agency in the Borough of Manhattan, the City and State of New York, located initially at the office of the Trustee at [ ], Attention: [ ].
Dated:
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Note: The signature to this Option to Elect Repayment must correspond with the name as written upon the face of the within Note in every particular without alteration or enlargement or any change whatsoever. |
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
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Please
Insert Social Security or Other
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Please Print or Type Name and Address Including Zip Code of Assignee |
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the within Note and all rights thereunder, hereby irrevocably constituting and appointing |
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attorney |
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to transfer such Note on the books of American Express Credit Corporation, with full power of substitution in the premises. |
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EXHIBIT 4(m)
Form of Permanent Global Registered Floating Rate Note
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 BY 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.
AMERICAN EXPRESS CREDIT CORPORATION
Medium-Term Senior
Notes, Series C
Due Nine Months or More from the Date of Issue
(Floating or Indexed Rate)
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REGISTERED |
CUSIP NO. _____________ |
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NO. FLR _____ |
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Initial Interest Rate: |
Interest Payment Period: |
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Interest Reset Period: |
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Maximum Interest Rate: |
Minimum Interest Rate: |
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Authorized Denominations (if other than as set forth |
Specified Currency (if other than U.S. dollars): |
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in the Prospectus Supplement): |
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Indexed Principal Note: (If yes, see attached) |
Indexed Interest Rate: (if yes, see attached) |
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Index Maturity: |
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Amortizing Note: |
Amortizing Schedule: |
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Repayment Terms: |
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Redemption Terms: |
Redemption Dates: |
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Redemption Dates: |
AMERICAN EXPRESS CREDIT CORPORATION, a corporation duly organized and existing under the laws of the State of Delaware (herein referred to as the “Company”) for value received hereby promises to pay CEDE & CO. or registered assigns, (a) the Principal Amount or, in the case of an Indexed Principal Note, the face amount adjusted by reference to prices, changes in prices, or differences between prices, of securities, currencies, intangibles, goods, articles or commodities or by such other objective price, economic or other measures (an “Index”) as described above or in the applicable pricing supplement, in the Specified Currency on the Stated Maturity date shown above, or earlier if and to the extent so provided herein, and (b) accrued interest on the Principal Amount then outstanding (or, in the case of an Indexed Principal Note, the face amount then outstanding): (i) at the Initial Interest Rate shown above from the Original Issue Date shown above, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, on the Interest Payment Dates stated above, until the first Interest Reset Date shown above following the Original Issue Date and thereafter at the Interest Rate Basis shown above, adjusted by the Spread or Spread Multiplier, if any, shown above, determined in accordance with the provisions hereof, until the principal thereof is paid or made available for payment; (ii) if this is an Indexed Rate Note, at a rate determined by reference to an Index as described herein.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof and in any applicable pricing supplement attached hereto or delivered herewith, and such further provisions shall for all purposes have the same effect as if fully set forth in this place.
This Note shall not become valid or obligatory for any purpose unless and until the certificate of authentication hereon shall have been executed by the Trustee, or its successor, under the Indenture referred to herein.
IN WITNESS WHEREOF, American Express Credit Corporation has caused this Global Note to be duly executed under its corporate seal.
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Dated: |
AMERICAN EXPRESS CREDIT CORPORATION |
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By |
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Authorized Officer |
CERTIFICATE OF AUTHENTICATION
This is one of the Securities issued under the within-mentioned Indenture.
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Dated: |
[TRUSTEE] |
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By: |
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Authorized Signatory |
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REVERSE OF GLOBAL FLOATING RATE NOTE
This Note is one of a series of duly authorized debentures, notes or other evidences of indebtedness (hereinafter called the “Securities”) of the Company, all such Securities issued and to be issued under an indenture dated as of , 2006 between the Company and The Bank of New York, as trustee (as supplemented from time to time, hereinafter called the “Indenture”), pursuant to which the Company has designated The Bank of New York as trustee for the Notes (as defined below) (the “Trustee”), to which Indenture reference is hereby made for a statement 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 or repurchase 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 Medium-Term Senior Notes, Series C (Floating or Indexed Rate Notes) (the “Notes”).
Payment of the principal of, and interest on, this Note will be made in immediately available funds at the office or agency of the Trustee maintained for that purpose in the Borough of Manhattan, The City of New York, State of New York, in such coin or currency of the United States of America or other currency or composite currency as specified on the face of this Note or in the applicable pricing supplement, as at the time of payment shall be legal tender for payment of public and private debts; provided, however, that at the option of the Company payment of interest on any Notes issued in definitive form other than interest due at the Stated Maturity (as defined below) as specified on the face of this Note may be made by check mailed to the address of the person entitled thereto as such address shall appear in the Securities Register. Payment of interest will be made to the person in whose name this Note is registered at the close of business on the fifteenth day (whether or not a Business Day) prior to any Interest Payment Date (the “Regular Record Date”). However, payment of interest at the date on which the principal of this Note becomes due and payable, whether at the Stated Maturity or by declaration of acceleration or otherwise (the “Maturity”) will be made to the person to whom the Company pays the principal. The first payment of interest on any Note 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 an Event of Default with respect to the Notes shall have occurred and be continuing or as otherwise set forth in the Indenture, Notes in definitive form will not be issued.
Payment of Interest
The interest rate on this Note will be equal to either (1) the interest rate calculated by reference to the Interest Rate Basis (as specified on the face of this Note) plus or minus the Spread, if any, as specified on the face of this Note or (2) the interest rate calculated by reference to the Interest Rate Basis as specified on the face of this Note multiplied by the Spread Multiplier, if any, as specified on the face of this Note.
Except as provided below, the “Interest Payment Dates” for the Notes will be:
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in the case of Notes with a weekly Interest Reset Date (as defined below) on the third Wednesday of each month or on the third Wednesday of March, June, September and December; |
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in the case of Notes with a monthly Interest Reset Date, on the third Wednesday of each month or on the third Wednesday of March, June, September and December of each year, as specified on the face of this Note; |
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in the case of Notes with a quarterly Interest Reset Date, on the third Wednesday of March, June, September and December of each year; |
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in the case of Notes with a semi-annual Interest Reset Date, on the third Wednesday of two months of each year, as specified on the face of this Note; and |
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in the case of Notes with an annual Interest Reset Date, on the third Wednesday of one month of each year, as specified on the face of this Note. |
If any Interest Payment Date for this Note would otherwise be a day that is not a Business Day for this Note, the Interest Payment Date for this Note shall be postponed to the next day that is a Business Day for this Note, except that in the case of a LIBOR Note or a EURIBOR Note, if such day falls in the next calendar month, the Interest Payment Date shall be the preceding day that is a Business Day.
As used in this Note, “Business Day” means:
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with respect to any payment, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in the Borough of Manhattan, The City of New York, are authorized or required by law or executive order to close; |
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when used for any other purpose, each Monday, Tuesday, Wednesday, Thursday and Friday which 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; |
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for Notes based on LIBOR (as described below) only, such day shall be any day on which dealings in deposits in U.S. dollars are transacted in the London interbank market; |
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for Notes based on EURIBOR (as described below) 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 |
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for Notes 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, Canadian dollars or euros, 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. |
The rate of interest on this Note will be reset on the Interest Reset Date that will be weekly, monthly, quarterly, semi-annually or annually, as specified on the face of this Note.
The “Interest Reset Date” will be:
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in the case of Notes (other than Treasury Rate Notes) that reset weekly, the Wednesday of each week; |
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in the case of Treasury Rate Notes that reset weekly, the Tuesday of each week; |
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in the case of Notes that reset monthly, the third Wednesday of each month; |
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in the case of Notes that reset quarterly, the third Wednesday of March, June, September and December; |
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in the case of Notes that reset semi-annually, the third Wednesday of two months of each year, as specified on the face of this Note; and |
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in the case of Notes that reset annually, the third Wednesday of one month of each year, as specified on the face of this Note. |
However, in each case, (1) the interest rate in effect from the date of issue to the first Interest Reset Date with respect to this Note will be the Initial Interest Rate set forth on the face of this Note and (2) the interest rate in effect for the ten days immediately prior to Maturity, if applicable, will be the rate in effect on the tenth day preceding such Maturity. If any Interest Reset Date for this Note would otherwise be a day that is not a Business Day for this Note, the Interest Reset Date for this Note shall be postponed to the next day that is a Business Day for this Note, except that in the case of a LIBOR Note or a EURIBOR Note, 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 (as defined below), 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 this Note. The Calculation Date shall be the tenth calendar day after the related Interest Determination Date for this Note or if such day is not a Business Day, the next succeeding Business Day, unless otherwise specified on the face of this Note. “Calculation Agent” means the agent appointed by the Company to calculate interest rates on this Note as specified on the face of this Note.
The “Interest Determination Date” pertaining to an Interest Reset Date will be:
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the second Business Day preceding such Interest Reset Date for (1) a Commercial Paper Rate Note, (2) a Federal Funds Rate Note, (3) a CD Rate Note or (4) a Prime Rate Note. |
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will be the second Business Day preceding such Interest Reset Date for a LIBOR Note or a EURIBOR Note. |
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will be the day of the week in which such Interest Reset Date falls on which Treasury bills would normally be auctioned for a Treasury Rate. |
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 treasury Interest Determination Date 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 note, then such Interest Reset Date shall instead be the first Business Day immediately following such auction date.
Unless otherwise specified on the face of this Note or in the applicable pricing supplement, the interest payable on each Interest Payment Date or at Maturity for this Note will be the amount of interest accrued from and including the Original 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. However, in the case of this Note on which interest is reset weekly, interest payable on each Interest Payment Date will be the amount of interest accrued from and including the Original Issue Date or from and excluding the last date to which interest has been paid, as the case may be, to, and including, the Regular Record Date immediately preceding such Interest Payment Date, except that at Maturity the interest payable will include interest accrued to, but excluding, the date of Maturity.
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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 this Note by an accrued interest factor. This accrued interest factor is computed by adding the interest factors calculated for each day from the date of issue or from the last date to which interest has been paid, to the 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 Notes, Federal Funds Rate Notes, CD Rate Notes, LIBOR Notes, EURIBOR Notes and Prime Rate Notes, or by the actual number of days in the year, in the case of Treasury Rate Notes. All dollar amounts used in or resulting from calculations on this Note 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 this Note, provide the interest rate then in effect and, if determined, the interest rate which will become effective as a result of a determination made on the most recent Interest Determination Date with respect to this Note.
The interest rate on this Note 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.
Determination of Commercial Paper Rate
If the Interest Rate Basis specified on the face of this Note is Commercial Paper Rate, this Note will bear interest for each Interest Reset Period at an interest rate calculated with reference to the Commercial Paper Rate and the Spread or Spread Multiplier, if any, specified on the face of this Note.
Unless the Company indicates otherwise in the applicable pricing supplement, the “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 as specified on the face of this Note as such rate is published by the Board of Governors of the Federal Reserve System in “Statistical Release H.15(519), Selected Interest Rates” or any successor publication of the Board of Governors of the Federal Reserve System (“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:
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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 as specified on the face of this Note or designated in the applicable pricing supplement as published in the daily update of H.15(519), available through the worldwide website of the Board of Governors of the Federal Reserve System at http://www.federalreserve.gov/releases/H15/update, or any successor site or publication (“H.15 Daily Update”) under the heading “Commercial Paper—Nonfinancial” (with an index maturity of one month or three months deemed to be equivalent to an index maturity of 30 days or 90 days, respectively). |
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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 arithmetic mean (each as rounded to the nearest one hundred-thousandth of a |
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percentage point) of the offered rates of three leading dealers of commercial paper in The City of New York selected by the Calculation Agent, after consultation with the Company, as of 11:00 a.m., New York City time, on such date, for commercial paper having the Index Maturity as specified on the face of this Note or designated in the applicable pricing supplement placed for a non-financial issuer whose bond rating is “AA,” or the equivalent, from a nationally recognized securities rating agency. |
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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). |
The “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:
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D Ï 360 |
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Money Market Yield = |
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360 - (D Ï M) |
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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.
Determination of Federal Funds Rate
If the Interest Rate Basis specified on the face of this Note is Federal Funds Rate, this Note will bear interest for each Interest Reset Period at an interest rate calculated with reference to the Federal Funds Rate and the Spread or Spread Multiplier, if any, specified on the face of this Note.
Unless the Company indicates otherwise in the applicable pricing supplement, the “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 Moneyline Telerate, Inc. (or any successor service) on page 120 (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:
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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).” |
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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 The City of New York selected by the Calculation Agent, after consultation with the Company. |
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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). |
7
Determination of CD Rate
If the Interest Rate Basis specified on the face of this Note is CD Rate, this Note will bear interest for each Interest Reset Period at an interest rate calculated with reference to the CD Rate and the Spread or Spread Multiplier, if any, specified on the face of this Note.
Unless the Company indicates otherwise in the applicable pricing 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 as specified on the face of this Note or designated in the applicable pricing supplement as published in H.15(519) under the heading “CDs (Secondary Market).”
The following procedures will be followed if the CD Rate cannot be determined as described above:
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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 as specified on the face of this Note or designated in the applicable pricing supplement as published in H.15 Daily Update under the heading “CDs (Secondary Market).” |
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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 The City of New York selected by the Calculation Agent, after consultation with the Company, 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 as specified on the face of this Note or designated in the applicable pricing supplement in an amount that is representative for a single transaction in that market at that time. |
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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). |
Determination of LIBOR
If the Interest Rate Basis specified on the face of this Note is LIBOR, this Note will bear interest for each Interest Reset Period at an interest rate calculated with reference to LIBOR and the Spread or Spread Multiplier, if any, specified on the face of this Note.
Unless the Company indicates otherwise in the applicable pricing supplement, LIBOR will be determined by the Calculation Agent in accordance with the following provisions in the order set forth below:
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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 as specified on the face of this Note or designated in the applicable pricing 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 |
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successor reporter of such rates selected by the Calculation Agent and acceptable to the Company, 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. |
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With respect to an Interest Determination Date relating to a LIBOR Note 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 the Company to provide the Calculation Agent with its offered quotation for deposits in the Index Currency for the period of the Index Maturity as specified on the face of this Note or designated in the applicable pricing 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 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 as specified on the face of this Note or designated in the applicable pricing 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 as specified on the face of this Note or designated in the applicable pricing 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 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 the Company; 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) as specified on the face of this Note or designated in the applicable pricing supplement as the currency with respect to which LIBOR will be calculated. If no currency is specified on the face of this Note or the applicable pricing supplement, the index currency will be U.S. dollars.
“Designated LIBOR Page” means the display on Page 3750 (or any other page specified on the face of this Note or in the applicable pricing supplement) of Moneyline Telerate, Inc. (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).
Determination of EURIBOR
If the Interest Rate Basis specified on the face of this Note is EURIBOR, this Note will bear interest for each Interest Reset Period at an interest rate calculated with reference to EURIBOR and the Spread or Spread Multiplier, if any, specified on the face of this Note.
9
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 as specified on the face of this Note or in the applicable pricing supplement, commencing on the Interest Reset Date, which appears on page 248 on the Reuters Telerate Service or any successor service or any page that may replace page 248 on that service which is commonly referred to as “Telerate Page 248” as of 11:00 a.m., Brussels time, on that date.
If EURIBOR cannot be determined on a EURIBOR Determination Date as described above, then the Calculation Agent will determine EURIBOR as follows:
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The Calculation Agent for the EURIBOR Note will select four major banks in the euro-zone interbank market. |
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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 euros that is representative of a single transaction in such market at that time. |
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If two or more quotations are provided, EURIBOR for the Interest Reset Period will be the arithmetic mean of those quotations. |
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If less than two quotations are provided, the Calculation Agent will select four major banks in the euro-zone and follow the steps in the two bullet points below: |
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The Calculation Agent will then determine EURIBOR for the Interest Reset Period as the arithmetic mean of rates quoted by those four 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 euros that is representative of a single transaction in such market at that time. |
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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, EURIBOR will be the Initial Interest Rate. |
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“Euro-zone” means the region comprised of 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 by the Treaty on European Union and the Treaty of Amsterdam.
Determination of Prime Rate
10
If the Interest Rate Basis specified on the face of this Note is Prime Rate, this Note will bear interest for each Interest Reset Period at an interest rate calculated with reference to the Prime Rate and the Spread or Spread Multiplier, if any, as specified on the face of this Note.
Unless the Company indicates otherwise in the applicable pricing supplement, the 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:
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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 under the heading “Bank Prime Loan.” |
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If the rate is not published prior to 3:00 p.m., New York City time, on the Calculation Date in either H.15(519) or the H.15 Daily Update, 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 Screen USPRIME 1 Page (as defined below) 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 the Reuters Screen USPRIME 1 Page on that Interest Determination Date. |
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If fewer than four rates appear on the Reuters Screen USPRIME 1 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 at least two of the three major money center banks in The City of New York selected by the Calculation Agent, after consultation with the Company, from which quotations are requested. |
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If fewer than two quotations are provided, the Calculation Agent will calculate the Prime Rate, which will be the arithmetic mean of the prime rates in New York City by the appropriate number of substitute banks or trust companies organized and doing business under the laws of the United States, or any State thereof, in each case having total equity capital of at least $500 million and being subject to supervision or examination by federal or state authority, selected by the Calculation Agent after consultation with the Company to quote prime rates. |
“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.
Determination of Treasury Rate
If the Interest Rate Basis specified on the face of this Note is Treasury Rate, this Note will bear interest for each Interest Reset Period at an interest rate calculated with reference to the Treasury Rate and the Spread or Spread Multiplier, if any, specified on the face of this Note.
Unless the Company indicates otherwise in the applicable pricing 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 as specified on the face of this Note or in the applicable pricing supplement as such rate appears under the heading “INVESTMENT
11
RATE” on the display on Moneyline Telerate, Inc. (or any successor service) on Page 56 (or any other page as may replace such page) or Page 57 (or any other page as may replace such page).
The following procedures will be followed if the Treasury Rate cannot be determined as above:
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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.” |
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In the event that the results of the auction of Treasury bills having the Index Maturity as specified on the face of this Note or designated in the applicable pricing 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. |
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In the event that the auction rate of Treasury bills having the Index Maturity as specified on the face of this Note or designated in the applicable pricing 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 as specified on the face of this Note or designated in the applicable pricing 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.” |
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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 the Company for the issue of Treasury bills with a remaining maturity closest to the Index Maturity as specified on the face of this Note or designated in the applicable pricing supplement. |
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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:
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D Ï N |
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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.
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Indexed Notes
If this Note is an indexed note, then certain or all interest payments, in the case of an Indexed Rate Note, and/or the Principal Amount payable at Maturity, in the case of an Indexed Principal Note, is determined by reference to the amount designated on the face of this Note or in the applicable pricing supplement as the face amount of this Note and by reference to the Index as described on the face of this Note or in the applicable pricing supplement. If this Note is an Indexed Rate Note that is also an Indexed Principal Note, the amount of any interest payment will be determined by reference to the face amount described on the face of this Note or in the applicable pricing supplement unless otherwise specified. If this Note is an Indexed Principal Note, the Principal Amount payable at Maturity may be different from the face amount. Principal Amount payable at Stated Maturity will be calculated in the manner set forth in the applicable pricing supplement.
Amortizing Notes
If this Note is an Amortizing Note, a portion or all the Principal Amount of the Note is payable prior to Stated Maturity in accordance with a schedule, by application of a formula, or by reference to an Index as set forth on the face of this Note or in the applicable pricing supplement.
Redemption and Repayment
If so specified on the face of this Note or in the applicable pricing supplement, the Company may, at its option, redeem this Note in whole or in part, on the date or dates (each a “Redemption Date”) specified herein, at the price (the “Redemption Price”) (together with interest accrued to such Redemption Date) specified herein. Provisions regarding requirements and procedures for redemption will be set forth in the applicable pricing supplement.
If so specified on the face of this Note or in the applicable pricing supplement, this Note will be repayable prior to Maturity at the option of the holder on the Repayment Dates shown on the face of this Note or in the applicable pricing supplement at the Repayment Prices shown on the face of this Note or in the applicable pricing supplement, together with interest accrued to the date of repayment. Provisions regarding requirements and procedures for repayment will be set forth in the applicable pricing supplement.
Unless otherwise specified on the face of this Note or in the applicable pricing supplement, this Note will not be subject to any sinking fund.
The Company may at any time purchase Notes at any price in the open market or otherwise. Notes so purchased by the Company may, at the discretion of the Company, be held or resold or surrendered to the Trustee for such Notes for cancellation.
Other Terms
As specified on the face of this Note or in the applicable pricing supplement, this Note may also have either or both of the following (in each case expressed as a rate per annum on a simple interest basis): (i) a maximum limitation, or ceiling, on the rate at which interest may accrue during any interest period (“Maximum Interest Rate”) and/or (ii) a minimum limitation, or floor, on the rate at which interest may accrue during any interest period (“Minimum Interest Rate”).
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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 (as defined in the Indenture) with respect to the Notes, 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 Notes of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the holders of not less than a majority in aggregate Principal Amount of the Outstanding Securities of each series to be affected thereby. The Indenture also permits, with certain exceptions as therein provided, the holders of not less than a majority in aggregate Principal Amount of outstanding Notes of any series, on behalf of the holders of all the Notes 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 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 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 set forth therein, the transfer of this Note is registrable 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 Borough of Manhattan, The City of New York, State of New York, 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 in registered form without coupons in denominations of $100,000 and any larger amount that is an integral multiple of $1,000. 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.
In case this Note shall at any time become mutilated, destroyed, stolen or lost and this Note or evidence of the loss, theft, or destruction hereof (together with such indemnity and such other documents or proof as may be required by the Company or the Trustee) shall be delivered to the principal corporate trust office of the Trustee, a new Note of like tenor and Principal Amount will be issued by the Company in exchange for, or in lieu of, this Note. All expenses and reasonable charges associated with procuring such indemnity and with the preparation, authentication and delivery of a new Note shall be borne by the holder of this Note.
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Holders of Securities may not enforce their rights pursuant to the Indenture or the Note except as provided in the Indenture.
Certain terms used in this Note which are defined in the Indenture have the meaning 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 holder 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.
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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:
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as tenants in common |
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UNIF GIFT MIN ACT |
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Custodian |
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TEN ENT |
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as tenants by the entireties |
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JT TEN |
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as joint tenants with right of survivorship and not as tenants in common |
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Additional abbreviations may also be used though not in the above list
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OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company to repay $ ___ Principal Amount of the Note, pursuant to its terms, on the “Repayment Date” first occurring after the date of receipt of the within Note as specified below, together with interest thereon accrued to the date of repayment, to the undersigned at:
(Please Print or Type Name and Address of the Undersigned)
and to issue to the undersigned, pursuant to the terms of the Indenture, a new Note or Notes representing the remaining Principal Amount of this Note.
For this Option to Elect Repayment to be effective, this Note with the Option to Elect Repayment duly completed must be received by the Company within the relevant time period set forth above at its office or agency in the Borough of Manhattan, the City and State of New York, located initially at the office of the Trustee at , Attention: .
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Dated: |
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Note: The signature to this Option to Elect Repayment must correspond with the name as written upon the face of the within Note in every particular without alteration or enlargement or any change whatsoever. |
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
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Please Insert Social
Security or Other
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Please Print or Type Name and Address Including Zip Code of Assignee |
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the within Note and all rights thereunder, hereby irrevocably constituting and appointing |
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attorney |
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to transfer such Note on the books of American Express Credit Corporation, with full power of substitution in the premises. |
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Dated: |
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Signature |
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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 |
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17
EXHIBIT 5
June 8, 2006
Securities and Exchange Commission
100 F. Street, N.E.
Washington, D.C. 20549
Ladies and Gentlemen:
I am Counsel of American Express Credit Corporation, a Delaware corporation (the “Company”). I have represented the Company in connection with the preparation and filing with the Securities and Exchange Commission under the Securities Act of 1933, as amended, of a Registration Statement on Form S-3 (the “Registration Statement”), and the Prospectus in the form included in the Registration Statement (the “Prospectus”), relating to the Company’s Debt Securities and Warrants to Purchase Debt Securities (the “Securities”) to be issued pursuant to an Indenture, dated as of , 2006, between the Company and The Bank of New York.
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 Company 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 upon the foregoing, and subject to the qualification that 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 jurisdictions other than the laws of the State of New York and the United States and the General Corporation Law of the State of Delaware insofar as the General Corporation Law of the State of Delaware bears on the matters covered hereby, I am of the opinion that the Securities have been duly authorized by the Company and, upon their issuance in accordance with the terms of that authorization, will have been legally issued and will be binding obligations of the Company.
I hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to me under the caption “Legal Matters’’ in the Prospectus.
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Very truly yours, |
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/s/ David S. Carroll |
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David S. Carroll |
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Counsel |
EXHIBIT 23(b)
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the reference to our firm under the caption “Experts” and the use of our reports dated March 16, 2005 with respect to the financial statements and schedules of American Express Credit Corporation (the “Company”) incorporated by reference in the Registration Statement on Form S-3 (333-______) and related Prospectus of the Company for the registration of Debt Securities and Warrants to Purchase Debt Securities.
/s/ ERNST & YOUNG LLP
New York, New York
June 7, 2006
EXHIBIT 23(c)
We hereby consent to the incorporation by reference in this Registration Statement on Form S-3 of our report dated March 30, 2006, relating to the financial statements and financial statement schedule as of and for the year ended December 31, 2005, which appears in American Express Credit Corporation’s Annual Report on Form 10-K for the year ended December 31, 2005. We also consent to the references to us under the heading “Experts” in such Registration Statement.
/s/ PRICEWATERHOUSECOOPERS LLP
New York, NY
June 7, 2006
EXHIBIT 24(a)
AMERICAN EXPRESS CREDIT CORPORATION
POWER OF ATTORNEY
American Express Credit Corporation, a Delaware corporation (the “Company”), and each of the undersigned officers and directors of the Company, hereby constitute and appoint Stephen P. Norman, David L. Yowan and Christopher S. Forno, jointly and severally, with full power of substitution and revocation, their true and lawful attorneys-in-fact and agents, for them and on their behalf and in their respective names, places and steads, in any and all capacities, to sign, execute and file any documents that may be required relating to the issuance of the Company’s Debt Securities and Warrants to purchase Debt Securities pursuant to a registration statement, and any amendments thereto, filed with the Securites and Exchange Commission under the Securities Act of 1933, as amended, granting unto said attorneys, and each of them, full power and authority to do and perform each and every act and thing requisite and neccesary to be done in and about the premises to order to effectuate the same as fully to all intents and purposes as they might or could do if personally present, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, may lawfully do or cause to be done by virtue hereof.
This Power of Attorney may be executed in counterpart.
IN WITNESS WHEREOF, American Express Credit Corporation has caused this Power of Attorney to be executed in its name by its President and its corporate seal to be affixed and attested by its Secretary, and the undersigned officers and directors have hereunto set their hands as of the 6 th day of June, 2006.
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AMERICAN EXPRESS CREDIT CORPORATION |
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By: |
/s/ Christopher S. Forno |
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Christopher
S. Forno
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[Corporate Seal] |
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Attest: |
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/s/ Stephen P. Norman |
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Stephen P. Norman
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/s/ Paul H. Hough |
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Paul H. Hough
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/s/ David L. Yowan |
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David L. Yowan
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/s/ Christopher S. Forno |
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Christopher S. Forno
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/s/ Susanne L. Miller |
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Susanne L. Miller
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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)
o
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
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New York
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13-5160382
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One Wall Street, New York, N.Y.
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10286
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American Express Credit Corporation
(Exact name of obligor as specified in its charter)
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Delaware
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11-1988350
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301 North Walnut Street
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19801-2919
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Debt Securities
(Title of the indenture securities)
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1. |
General information. Furnish the following information as to the Trustee: |
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(a) |
Name and address of each examining or supervising authority to which it is subject. |
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(b) |
Whether it is authorized to exercise corporate trust powers. |
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Yes. |
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2. |
Affiliations with Obligor. |
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If the obligor is an affiliate of the trustee, describe each such affiliation. |
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None. |
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16. |
List of Exhibits. |
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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). |
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1. |
A copy of the Organization Certificate of The Bank of New York (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 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195.) |
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4. |
A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-121195.) |
- 2 -
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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. 333-106702.) |
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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. |
- 3 -
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York, 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 7 th day of June, 2006.
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THE BANK OF NEW YORK |
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By: |
/S/ Van K. Brown |
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Name: Van K. Brown |
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Title: Vice President |
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EXHIBIT 7
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Consolidated Report of Condition of |
THE BANK OF NEW YORK
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Dollar Amounts
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ASSETS |
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Cash and balances due from depository institutions: |
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Noninterest-bearing balances and currency and coin |
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$ |
3,230,000 |
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Interest-bearing balances |
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6,440,000 |
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Securities: |
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Held-to-maturity securities |
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2,165,000 |
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Available-for-sale securities |
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22,631,000 |
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Federal funds sold and securities purchased under agreements to resell |
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Federal funds sold in domestic offices |
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2,955,000 |
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Securities purchased under agreements to resell |
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315,000 |
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Loans and lease financing receivables: |
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Loans and leases held for sale |
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0 |
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Loans and leases, net of unearned income |
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32,983,000 |
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LESS: Allowance for loan and lease losses |
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415,000 |
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Loans and leases, net of unearned income and allowance |
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32,568,000 |
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Trading assets |
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6,861,000 |
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Premises and fixed assets (including capitalized leases) |
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828,000 |
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Other real estate owned |
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0 |
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Investments in unconsolidated subsidiaries and associated companies |
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298,000 |
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Not applicable |
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Intangible assets: |
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Goodwill |
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2,148,000 |
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Other intangible assets |
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760,000 |
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Other assets |
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6,551,000 |
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Total assets |
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$ |
87,750,000 |
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LIABILITIES |
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Deposits: |
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In domestic offices |
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$ |
35,956,000 |
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Noninterest-bearing |
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16,637,000 |
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Interest-bearing |
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19,319,000 |
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In foreign offices, Edge and Agreement subsidiaries, and IBFs |
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30,215,000 |
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Noninterest-bearing |
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578,000 |
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Interest-bearing |
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29,637,000 |
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Federal funds purchased and securities sold under agreements to repurchase |
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Federal funds purchased in domestic offices |
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825,000 |
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Securities sold under agreements to repurchase |
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123,000 |
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Trading liabilities |
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2,509,000 |
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Other borrowed money: |
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(includes mortgage indebtedness and obligations under capitalized leases) |
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1,890,000 |
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Not applicable |
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Not applicable |
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Subordinated notes and debentures |
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1,955,000 |
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Other liabilities |
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5,573,000 |
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Total liabilities |
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$ |
79,046,000 |
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Minority interest in consolidated subsidiaries |
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151,000 |
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EQUITY CAPITAL |
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Perpetual preferred stock and related surplus |
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0 |
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Common stock |
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1,135,000 |
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Surplus (exclude all surplus related to preferred stock) |
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2,107,000 |
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Retained earnings |
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5,487,000 |
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Accumulated other comprehensive income |
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-176,000 |
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Other equity capital components |
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0 |
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Total equity capital |
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8,553,000 |
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Total liabilities, minority interest, and equity capital |
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$ |
87,750,000 |
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I, Thomas J. Mastro, Executive Vice President and Comptroller 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.
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Thomas J. Mastro, |
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Executive Vice President and Comptroller |
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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.
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Directors |
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