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REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT AND POST-EFFECTIVE AMENDMENT
TO ANOTHER
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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AMERICAN EXPRESS CREDIT CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C>
DELAWARE 11-1988350
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) Number)
VINCENT P. LISANKE, PRESIDENT
AMERICAN EXPRESS CREDIT CORPORATION
ONE CHRISTINA CENTRE ONE CHRISTINA CENTRE
301 NORTH WALNUT STREET 301 NORTH WALNUT STREET
WILMINGTON, DELAWARE 19801-2919 WILMINGTON, DELAWARE 19801-2919
(302) 594-3350 (302) 594-3350
(Address, including zip code, and (Name, address, including zip code,
telephone number, including and telephone number,
area code, of registrant's principal including area code, of agent for
executive offices) service)
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Copies to:
<TABLE>
<S> <C>
DAVID S. CARROLL, ESQ. VINCENT PAGANO JR., ESQ.
AMERICAN EXPRESS COMPANY SIMPSON THACHER & BARTLETT
AMERICAN EXPRESS TOWER 425 LEXINGTON AVENUE
WORLD FINANCIAL CENTER NEW YORK, NEW YORK 10017
NEW YORK, NEW YORK 10285
</TABLE>
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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.
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IF THE ONLY SECURITIES BEING REGISTERED ON THIS FORM ARE BEING OFFERED PURSUANT
TO DIVIDEND OR INTEREST REINVESTMENT PLANS, PLEASE CHECK THE FOLLOWING BOX. / /
IF ANY OF THE SECURITIES BEING REGISTERED ON THIS FORM ARE TO BE OFFERED ON A
DELAYED OR CONTINUOUS BASIS PURSUANT TO RULE 415 UNDER THE SECURITIES ACT OF
1933, OTHER THAN SECURITIES OFFERED ONLY IN CONNECTION WITH DIVIDEND OR INTEREST
REINVESTMENT PLANS, PLEASE CHECK THE FOLLOWING BOX. /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. / /
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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. / /
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IF DELIVERY OF THE PROSPECTUS IS EXPECTED TO BE MADE PURSUANT TO RULE 434,
PLEASE CHECK THE FOLLOWING BOX. /X/
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF EACH AMOUNT PROPOSED PROPOSED AMOUNT OF
CLASS OF SECURITIES TO BE MAXIMUM OFFERING MAXIMUM AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED(1) PRICE PER UNIT OFFERING PRICE(2) FEE
<S> <C> <C> <C> <C>
Debt Securities and Warrants to
Purchase Debt Securities...... $1,000,000,000 100% $1,000,000,000 $344,827.58
</TABLE>
(1) Or, if any Debt Securities are issued at an original issue discount, such
greater amount as may result in the initial offering prices aggregating
$1,000,000,000.
(2) Estimated solely for the purpose of computing registration fee.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus
included herein is a combined prospectus and also relates to $310,297,000
aggregate principal amount of Debt Securities and Warrants to Purchase Debt
Securities registered pursuant to Registration Statement No. 33-47497 previously
filed by the Registrant on Form S-3 and declared effective on May 11, 1992. In
connection with the registration of up to $1,000,000,000 aggregate principal
amount of Debt Securities and Warrants to Purchase Debt Securities registered
pursuant to Registration Statement No. 33-47497, the Registrant paid a
registration fee in the amount of $312,500.
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<PAGE>
SUBJECT TO COMPLETION, DATED SEPTEMBER 21, 1995
Information contained herein is subject to completion or amendment.
A registration statement relating to these securities has been filed
with the Securities and Exchange Commission. These securities may
not be sold nor may offers to buy be accepted prior to the time
the registration statement becomes effective. This Prospectus shall
not constitute an offer to sell or the solicitation of an offer to buy
nor shall there be any sale of these securities in any State in which
such offer, solicitation or sale would be unlawful prior to registration
or qualification under the securities laws of such State.
PROSPECTUS
AMERICAN EXPRESS CREDIT CORPORATION
DEBT SECURITIES AND WARRANTS TO PURCHASE DEBT SECURITIES
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This Prospectus covers debt securities (the 'Debt Securities') and warrants
to purchase Debt Securities ('Warrants' and together with the Debt Securities,
the 'Securities') to be issued for proceeds of up to $1,310,297,000 (or the
equivalent in foreign denominated currencies or composite currencies), which
American Express Credit Corporation (the 'Company') may issue from time to time
in one or more series. The Securities will be offered directly, or through
agents designated from time to time, or through broker-dealers or underwriters
also to be designated. The Securities will be offered to the public on terms
determined by market conditions at the time of sale. The Securities may be sold
for U.S. dollars, foreign denominated currencies or composite currencies, and
principal of and any interest on the Debt Securities may likewise be payable in
U.S. dollars, foreign denominated currencies or composite currencies. The
currency or currencies for which the Securities may be purchased and the
currency or currencies in which principal of and any interest on the Debt
Securities may be payable are set forth in the accompanying Prospectus
Supplement (the 'Prospectus Supplement').
The specific designation, aggregate principal amount, offering price,
maturity, rate (or method of calculating the rate) and time of payment of any
interest, authorized denominations, and redemption provisions, if any, or other
specific terms of the Debt Securities, the duration, offering price, exercise
price and detachability of any Warrants, and any listing on a securities
exchange of the series of Securities in respect of which this Prospectus is
being delivered are set forth in the accompanying Prospectus Supplement.
The Company may sell the Securities through underwriters or dealers and
also may sell the Securities directly to purchasers or through agents. The names
of any underwriters or agents involved in the sale of the Securities in respect
of which this Prospectus is being delivered and their compensation are set forth
in the accompanying Prospectus Supplement.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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The date of this Prospectus is September , 1995.
<PAGE>
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS OR
THE ACCOMPANYING PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION
OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY OR ANY AGENT OR UNDERWRITER. THIS PROSPECTUS AND THE ACCOMPANYING
PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN
OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY
PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER IN SUCH JURISDICTION. NEITHER
THE DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE
HEREUNDER OR THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION
THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE
HEREOF OR THEREOF.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the 'Exchange Act'), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the 'Commission'). Such reports and other information can be
inspected and copied at the offices of the Commission at Judiciary Plaza, 450
Fifth Street, N.W., Washington, D.C. 20549, and at the following Regional
Offices of the Commission: Chicago Regional Office, Northwest Atrium Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661-2511; and New York
Regional Office, Seven World Trade Center, 13th Floor, New York, New York 10048.
Copies of such material can be obtained from the Public Reference Section of the
Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549,
at prescribed rates. Such reports and other information concerning the Company
also may be inspected at the offices of the New York Stock Exchange, 20 Broad
Street, New York, New York 10005, on which a series of the Company's debt
securities are listed. This Prospectus does not contain all of the information
set forth in the Registration Statement (of which this Prospectus is a part) and
the Exhibits thereto which the Company has filed with the Commission under the
Securities Act of 1933, as amended, and to which reference is hereby made.
DOCUMENTS INCORPORATED BY REFERENCE
There is incorporated herein by reference (i) the Company's Annual Report
on Form 10-K for the year ended December 31, 1994, as amended by Amendment No. 1
on Form 10-K/A dated May 8, 1995, (ii) the Company's Quarterly Report on Form
10-Q for the quarter ended March 31, 1995 and (iii) the Company's Quarterly
Report on Form 10-Q for the quarter ended June 30, 1995. All documents filed by
the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
after the date hereof and prior to the termination of the offering of the
Securities offered hereby shall be deemed to be incorporated by reference herein
and to be a part hereof from the date of filing such documents. Any statement
contained herein or in a document incorporated or deemed to be incorporated by
reference herein shall be deemed modified or superseded for purposes of this
Prospectus to the extent that a statement contained in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Prospectus.
THE COMPANY HEREBY UNDERTAKES TO PROVIDE WITHOUT CHARGE TO EACH PERSON,
INCLUDING ANY BENEFICIAL OWNER, TO WHOM THIS PROSPECTUS IS DELIVERED, ON THE
WRITTEN OR ORAL REQUEST OF SUCH PERSON, A COPY OF ANY OR ALL OF THE DOCUMENTS
DESCRIBED ABOVE, OTHER THAN EXHIBITS TO SUCH DOCUMENTS UNLESS SUCH EXHIBITS ARE
SPECIFICALLY INCORPORATED BY REFERENCE INTO THE DOCUMENTS THAT THIS PROSPECTUS
INCORPORATES. REQUESTS SHOULD BE DIRECTED TO: AMERICAN EXPRESS CREDIT
CORPORATION, ONE CHRISTINA CENTRE, 301 NORTH WALNUT STREET, WILMINGTON, DELAWARE
19801-2919, ATTENTION: PRESIDENT (TEL. 302-594-3350).
2
<PAGE>
THE COMPANY
The Company was incorporated in Delaware in 1962 and was acquired by
American Express Company ('American Express') in December 1965. On January 1,
1983, the Company became a wholly-owned subsidiary of American Express Travel
Related Services Company, Inc. (including its subsidiaries, where appropriate,
'TRS'), a wholly-owned subsidiary of American Express.
The Company is primarily engaged in the business of purchasing certain
Cardmember receivables arising from the use of the American Express(Trademark)
Card, including the American Express(Trademark) Gold Card, Platinum
Card(Trademark) and Corporate Card issued in the United States and certain
related extended payment plan receivables, and in designated currencies outside
the United States. The Company also purchases certain receivables arising from
the use of the Optima(Service Mark) Card. (The American Express Card and Optima
Card are collectively referred to herein as the 'Card'.) TRS provides a variety
of products and services, including the Card, consumer lending, the American
Express(Trademark) Travelers Cheque, travel products and services, magazine
publishing, direct mail merchandise services, database marketing and management
and insurance. The Card is issued by TRS and certain of its subsidiaries (the
'Card Issuers').
During the six month periods ended June 30, 1995 and 1994, the Company
purchased approximately $57 billion and $53 billion of Cardmember receivables,
respectively. At June 30, 1995 and 1994, the extended payment plan receivables
owned by the Company totalled approximately $1.5 billion and $1.3 billion,
respectively. The Company is currently purchasing certain interest-bearing
extended payment plan receivables from, and has made loans (which are secured by
Optima Card receivables) to, American Express Centurion Bank, a subsidiary of
TRS. At June 30, 1995 and 1994, the Company owned approximately $1.6 billion and
$1.4 billion, respectively, of gross participation interests in the seller's
interest in Cardmember receivables owned by a Master Trust.
The Company purchases Cardmember receivables from the Card Issuers, without
recourse, pursuant to agreements ('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 the Company. If the
unauthorized nature of the charge is discovered after purchase by the Company,
the Card Issuer repurchases the charge from the Company at its face amount.
The Company generally purchases non-interest-bearing Cardmember receivables
at face amount less a specified discount agreed upon from time to time and
interest-bearing Cardmember receivables at face amount. The Receivables
Agreements generally require that non-interest-bearing receivables be purchased
at discount rates which yield to the Company earnings of not less than 1.25
times its fixed charges on an annual basis. The Receivables Agreements also
provide that consideration will be given from time to time to revising the
discount rate applicable to purchases of new receivables to reflect changes in
money market interest rates or significant changes in the collectibility of
receivables. New groups of Cardmember receivables are generally purchased net of
reserve balances applicable thereto.
The Card Issuers, at their expense and as agents for the Company, perform
accounting, clerical and other services necessary to bill and collect all
Cardmember receivables owned by the Company. The Receivables Agreements provide
that, without prior written consent of the Company, 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.
For each of the six month periods ended June 30, 1995 and 1994, the average
life of Cardmember receivables owned by the Company (based upon the ratio of the
average amount of both billed and unbilled receivables owned by the Company at
the end of each month during the years indicated to the volume of Cardmember
receivables purchased by the Company, net of Cardmember receivables sold to
affiliates) was 43 days. The Company generally writes off against its reserve
for doubtful accounts the total balance in an account for which any portion
remains unpaid twelve months from the date of original billing for
non-interest-bearing Cardmember receivables and after six contractual payments
are past due for interest-bearing Cardmember receivables. Accounts are written
off earlier if deemed uncollectible. The Company's write-offs, net of
recoveries, expressed as a percentage of the volume of Cardmember receivables
purchased for the six-month periods ended June 30, 1995 and 1994 were .41% and
.43%, respectively.
3
<PAGE>
The Indenture under which the Securities are to be issued states that the
Company will not engage in any transaction with American Express or its
affiliates unless on a basis not materially less favorable to the Company than
would be the case if such transaction had been effected with a non-related
party. See 'Description of Debt Securities--Covenants Relating to the
Company--Transactions with Affiliates'.
American Express, as the parent of TRS, has agreed with the Company that it
will take all necessary steps to assure performance of certain of TRS's
obligations under the Receivables Agreement between TRS and the Company. The
Securities are solely the obligations of the Company and are not guaranteed
under the Receivables Agreements or otherwise by American Express or the Card
Issuers. The Receivables Agreements may be terminated at any time by the parties
thereto.
The Company's executive offices are located at One Christina Centre, 301
North Walnut Street, Wilmington, Delaware 19801-2919 (tel. 302-594-3350).
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the historical ratios of earnings to fixed
charges of the Company for the periods indicated:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
SIX MONTHS ENDED --------------------------------------
JUNE 30, 1995 1994 1993 1992 1991 1990
---------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
1.28 1.29 1.34(1) 1.29 1.28 1.28
</TABLE>
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(1) The ratio of earnings to fixed charges calculated in accordance with the
Receivables Agreements after the impact of the extraordinary charge of $34
million (pre-tax) was 1.28.
Under the Receivables Agreements, the discount rate for new Cardmember
receivables acquired by the Company must be sufficient to yield to the Company
earnings of not less than 1.25 times its fixed charges on an annual basis.
In computing the ratio of earnings to fixed charges, 'earnings' consist of
net income plus income taxes and interest expense, amortization of debt
discount, premium and related expenses. 'Fixed charges' consist of interest
expense, amortization of debt discount, premium and related expenses. Gross
rentals on long-term leases were minimal in amount in each of the periods shown.
Since the rate of discount on Cardmember receivables purchased by the Company is
established by the Receivables Agreements to enable the Company to achieve at
least a predetermined ratio of earnings to fixed charges, a pro forma ratio of
earnings to fixed charges would not be meaningful.
USE OF PROCEEDS
Except as may be otherwise set forth in the Prospectus Supplement
accompanying this Prospectus, the net proceeds to the Company from the sale of
the Securities will be applied to the reduction of short-term senior debt
incurred primarily in connection with the purchase of receivables, and, pending
such utilization, a portion of the proceeds may be invested in short-term
investments.
The Company expects to incur additional debt in the future to carry on its
business. The nature and amount of the Company's 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.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities are to be issued under an indenture, dated as of
September 1, 1987, between the Company and BankAmerica National Trust Company
(as successor to Security Pacific National Trust Company (New York)), as trustee
(the 'Trustee'), as supplemented by a First Supplemental Indenture, dated as of
November 1, 1987, between the Company and Bank of Montreal Trust Company, as
trustee, a Second Supplemental Indenture, dated as of January 15, 1988, between
the Company and The First National Bank of Boston, as trustee, a Third
Supplemental Indenture, dated as of April 1, 1988, between the Company and
4
<PAGE>
Chemical Bank (as successor to Manufacturers Hanover Trust Company), as trustee,
a Fourth Supplemental Indenture, dated as of May 1, 1988, between the Company
and Trust Company Bank, as trustee, a Fifth Supplemental Indenture, dated as of
March 28, 1989, between the Company and The Bank of New York, as trustee, a
Sixth Supplemental Indenture, dated as of May 1, 1989, between the Company and
Bank of Montreal Trust Company, as trustee, and a Seventh Supplemental
Indenture, dated as of July 28, 1995, between the Company and The Chase
Manhattan Bank, N.A. (as supplemented, the 'Indenture'). The following summary
of certain provisions of the Indenture does not purport to be complete and is
qualified in its entirety by reference to the Indenture, a copy of which is
filed or incorporated by reference as an exhibit to the Registration Statement
of which this Prospectus is a part, and to the Prospectus Supplement
accompanying this Prospectus which, among other things, will set forth any
covenants of the Company or events of default with respect to the series of Debt
Securities being offered thereby that differ from those described below. All
article and section references appearing herein are to articles and sections of
the Indenture, and all capitalized terms have the meanings specified in the
Indenture.
GENERAL
The Debt Securities will be unsecured and will rank on a parity with all
other unsecured and unsubordinated indebtedness of the Company. (Section 12.09)
The Indenture does not limit the amount of Debt Securities which may be issued
thereunder. (Section 3.01) This Prospectus relates to Debt Securities and
Warrants, the proceeds of which aggregate up to $1,310,297,000 or the equivalent
thereof in foreign denominated currencies or composite currencies, such as
European Currency Units. The Debt Securities and Warrants may be issued from
time to time in one or more series and will be offered to the public on terms
determined by market conditions at the time of sale. The Indenture permits the
appointment of a different trustee for each series of Debt Securities. (Section
8.09) If there is at any time more than one trustee under the Indenture, the
term 'Trustee' as used in this Prospectus will mean each such trustee and will
apply to each such trustee only with respect to those series of Debt Securities
with respect to which it is serving as trustee. Reference is made to the
Prospectus Supplement that accompanies this Prospectus for the following terms
and other information with respect to the Debt Securities that may be offered
thereby: (i) the designation, aggregate principal amount and authorized
denominations of such Debt Securities; (ii) the percentage of their principal
amount at which such Debt Securities will be issued; (iii) the date (or the
manner of determining the date or dates) on which such Debt Securities will
mature; (iv) the currency or currencies for which the Debt Securities may be
purchased and the currency or currencies in which the principal and any interest
may be payable; (v) if the currency for which Debt Securities may be purchased
or in which principal and any interest may be payable is at the purchaser's
election, the manner in which such an election may be made; (vi) the rate per
annum at which such Debt Securities will bear interest, if any, or the method of
determining such rate; (vii) the dates on which interest, if any, will be
payable; (viii) any sinking fund, redemption or other similar terms; (ix) if a
Trustee other than BankAmerica National Trust Company is named for such Debt
Securities, the name of such Trustee; and (x) any other specific terms of the
Debt Securities. All Debt Securities of any one series need not be issued at the
same time, and all of the Debt Securities of any one series need not bear
interest at the same rate or mature on the same date.
Unless otherwise specified in the Prospectus Supplement which accompanies
this Prospectus, principal and interest, if any, on the Debt Securities offered
thereby are to be payable at the office or agency of the Company maintained for
such purposes in the city where the principal corporate trust office of the
Trustee for such Debt Securities is located, and will initially be the principal
corporate trust office of such Trustee, provided that payment of interest, if
any, may be made (subject to collection) at the option of the Company by check
mailed to the persons in whose names the Debt Securities are registered at the
close of business on the day specified in the Prospectus Supplement accompanying
this Prospectus. (Section 12.02)
The Debt Securities may be issued in one or more series with the same or
various maturities and, unless otherwise specified in the Prospectus Supplement
which accompanies this Prospectus, will be issued only in fully registered form
without coupons. (Section 3.02) Registered Debt Securities will be exchangeable
for other Debt Securities of the same series, registered in the same name, for a
like aggregate principal amount in authorized denominations and may be presented
for registration of transfer at any time or from time to time at the
aforementioned office. No service charge will be made to the Holder for any such
exchange or registration of transfer except for any tax or governmental charge
incidental thereto. (Section 3.05)
5
<PAGE>
The Debt Securities may be sold at a substantial discount below their
stated principal amount, bearing no interest or interest at a rate which at the
time of issuance is below market rates. Federal income tax consequences and
special considerations applicable to any such series will be described in the
Prospectus Supplement relating thereto.
GLOBAL NOTES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Notes that will be deposited with or on behalf of a
depositary (a 'Depositary') identified in the Prospectus Supplement relating to
such series. Global Notes will be issued in registered form and may be in either
temporary or permanent form.
The specific terms of the depositary arrangement with respect to any Debt
Securities of a series will be described in the Prospectus Supplement relating
to such series. The Company anticipates that the following provisions will apply
to all depositary arrangements.
Unless otherwise specified in an applicable Prospectus Supplement, Debt
Securities which are to be represented by a Global Note to be deposited with or
on behalf of a Depositary will be registered in the name of such depositary or
its nominee. Upon the issuance of a Global Note, the Depositary for such Global
Note will credit the respective principal amounts of the Debt Securities
represented by such Global Note to the accounts of institutions that have
accounts with such depositary or its nominee ('participants'). The accounts to
be credited shall be designated by the underwriters or agents of such Debt
Securities or by the Company, if such Debt Securities are offered and sold
directly by the Company. Ownership of beneficial interests in such Global Notes
will be limited to participants or persons that may hold interests through
participants. Ownership of beneficial interests by participants in such Global
Notes will be shown on, and the transfer of those ownership interests will be
effected only through, records maintained by the Depositary or its nominee for
such Global Note. Ownership of beneficial interests in Global Notes by persons
that hold through participants will be shown on, and the transfer of that
ownership interest within such participant will be effected only through,
records maintained by such participant. The laws of some jurisdictions require
that certain purchasers of securities take physical delivery of such securities
in definitive form. Such limits and such laws may impair the ability to transfer
beneficial interests in a Global Note.
So long as the Depositary for a Global Note, or its nominee, is the
registered owner of such Global Note, such depositary or such nominee, as the
case may be, will be considered the sole owner or holder of the Debt Securities
represented by such Global Note for all purposes under the Indenture. Except as
set forth below, owners of beneficial interests in such Global Notes will not be
entitled to have Debt Securities of the series represented by such Global Note
registered in their names, will not receive or be entitled to receive physical
delivery of Debt Securities of such series in definitive form and will not be
considered the owners or holders thereof under the Indenture.
Payment of principal of, premium, if any, and any interest on Debt
Securities registered in the name of or held by a Depositary or its nominee will
be made to the Depositary or its nominee, as the case may be, as the registered
owner or the holder of the Global Note. None of the Company, the Trustee, any
Paying Agent or the Securities Registrar for such Debt Securities will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in a Global Note or
for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests. (Section 3.09)
The Company expects that the Depositary for a permanent Global Note, upon
receipt of any payment of principal, premium or interest in respect of a
permanent Global Note, will credit immediately participants' accounts with
payments in amounts proportionate to their respective beneficial interests in
the principal amount of such Global Note as shown on the records of such
Depositary. The Company also expects that payments by participants to owners of
beneficial interests in such Global Note held through such participants will be
governed by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers in bearer form or registered
in 'street name', and will be the responsibility of such participants.
A Global Note may not be transferred except as a whole by the Depositary
for such Global Note to a nominee or a successor of such depositary. If a
Depositary for a permanent Global Note is at any time unwilling
6
<PAGE>
or unable to continue as depositary and a successor depositary is not appointed
by the Company within ninety days, the Company will issue Debt Securities in
definitive registered form in exchange for the Global Note or Notes representing
such Debt Securities. In addition, the Company may at any time and in its sole
discretion determine not to have any Debt Securities represented by one or more
Global Notes and, in such event, will issue Debt Securities in definitive form
in exchange for all of the Global Notes representing such Debt Securities.
(Section 3.05) Further, if the Company so specifies with respect to the Debt
Securities of a series, an owner of a beneficial interest in a Global Note
representing Debt Securities of such series may, on terms acceptable to the
Company and the Depositary for such Global Note, receive Debt Securities of such
series in definitive form. In any such instance, an owner of a beneficial
interest in a Global Note will be entitled to physical delivery in definitive
form of Debt Securities of the series represented by such Global Note equal in
principal amount to such beneficial interest and to have such Debt Securities
registered in its name.
COVENANTS RELATING TO THE COMPANY
Transactions With Affiliates. Neither the Company nor any of its
Subsidiaries 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 12.08) An 'Affiliate' of the
Company is defined as a corporation controlling, controlled by or under common
control with the Company. (Section 1.01)
Maintenance Of Net Worth. The Indenture requires that the Company shall at
all times maintain a Net Worth of at least $50,000,000. (Section 12.10) 'Net
Worth' is defined in the Indenture to include, at any date, 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. (Section 1.10)
Restrictions As To Liens. The Indenture contains a covenant that neither
the Company nor any of its Subsidiaries will create, assume or suffer to exist
any mortgage, pledge, encumbrance, lien or charge of any kind upon its or their
properties or assets whether now owned or hereafter acquired, or acquire or
agree to acquire property or assets of any character under any conditional sale
agreement or other title retention agreement, except (i) liens for taxes and
governmental charges not yet due or being contested in good faith, (ii) liens
incidental to the conduct of its business not incurred in connection with the
issuance or assumption of Debt, (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)
liens securing obligations of a Subsidiary to the Company or another Subsidiary,
(v) certain liens on after acquired tangible property and purchase money liens
and (vi) extensions, renewals or replacements thereof. (Section 12.11) However,
the Company and any Subsidiary may create, assume or suffer to exist a lien or
charge upon any of its assets in connection with the issuance or assumption of
secured Debt which would otherwise be subject to the foregoing restrictions,
provided that the aggregate amount of all such secured Debt does not exceed 10%
of the Borrowing Base. (Section 12.11) 'Borrowing Base' means the sum of (i) the
outstanding Debt owed by the Company to American Express or a Subsidiary of
American Express which has been subordinated to the Debt Securities and (ii) Net
Worth. (Section 1.01)
Ownership Of Capital Stock Of The Company. The Indenture requires that
American Express will at all times own, directly or indirectly, 100% of the
Common Stock of the Company and shares representing not less than 80% of the
total combined voting power of all shares of the Company having ordinary voting
rights. (Section 12.12)
Release From Covenants. Except as otherwise set forth in the Prospectus
Supplement relating to any series of the Debt Securities, the foregoing
covenants shall cease to be binding on the Company from and after the
ninety-first day following the deposit with the Trustee, in trust, of (i) money
in an amount in the currency in which the Debt Securities of such series are
denominated, or (ii) U.S. Government Obligations in the case of Debt Securities
denominated in United States Dollars or obligations issued or guaranteed by the
government which issued the currency in which the Debt Securities of such series
are denominated in the case of Debt Securities denominated in Foreign
Currencies, which through the payment of interest and principal in respect
thereof in accordance with their terms will provide money in an amount in the
currency in which the Debt
7
<PAGE>
Securities of such series are denominated, or (iii) a combination thereof,
sufficient to pay and discharge the principal (and premium, if any) and
interest, if any, to the date of maturity on, such series of Debt Securities.
(Section 12.16)
MODIFICATION OF THE INDENTURE
Modifications and amendments of the Indenture with respect to one or more
series of Debt Securities may be made by supplemental indenture without the
consent of the Holders of such Debt Securities for certain enumerated purposes
(including the naming, by supplemental indenture, of a Trustee other than
BankAmerica National Trust Company for a series of Securities) and otherwise
with the consent of the Holders of 66 2/3% in principal amount of the Debt
Securities at the time Outstanding of each series affected thereby, provided
that no such modification or amendment may, without the consent of the Holder of
each Debt Security affected thereby: (i) modify the terms of payment of
principal or interest; (ii) reduce the percentage of Holders of Debt Securities
necessary to modify or amend the Indenture or waive compliance by the Company
with any restrictive covenant; or (iii) subordinate the indebtedness evidenced
by the Debt Securities to any indebtedness of the Company. (Sections 11.01 and
11.02)
EVENTS OF DEFAULT, NOTICE AND WAIVER
The Indenture provides that the following are Events of Default thereunder
with respect to any series of Debt Securities except as may otherwise be set
forth in the Prospectus Supplement relating to such series of Debt Securities:
default in the payment of the principal of (or premium, if any, on) any Debt
Security of such series at its Maturity; default in making a sinking fund
payment, if any, when and as the same shall be due and payable by the terms of
the Debt Securities of such series; default for 30 days in the payment of an
installment of interest, if any, on any Debt Security of such series; failure of
American Express, directly or indirectly, to own 100% of the Common Stock of the
Company and to own shares representing not less than 80% of the total combined
voting power of all shares of the Company having ordinary voting rights; default
for 60 days after written notice to the Company in the performance of any other
covenant in respect of the Debt Securities of such series; certain events of
bankruptcy, insolvency or reorganization, or court appointment of a receiver,
liquidator or trustee of the Company or its property; 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 evidencing or under which the
Company has outstanding any indebtedness for borrowed money, as a result of
which indebtedness of the Company in excess of $10,000,000 principal amount
shall have been accelerated and such acceleration shall not have been annulled
within 15 days after written notice thereof; and any other Event of Default
provided in or pursuant to the applicable resolution of the Board of Directors
or supplemental indenture under which such series of Debt Securities is issued.
(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 issued
thereunder. The Trustee may withhold notice to the Holders of any series of Debt
Securities of any default with respect to such series (except in the payment of
principal, premium or interest) if it considers such withholding to be in the
interests of such Holders. (Section 8.02)
If an Event of Default with respect to any series of Debt Securities shall
have occurred and be continuing, the Trustee or the Holders of 25% in aggregate
principal amount of the Debt Securities of such series may declare the
principal, or in the case of discounted Debt Securities, such portion thereof as
may be described in the Prospectus Supplement accompanying this Prospectus, of
all the Debt Securities of such series to be due and payable immediately.
(Section 7.02)
The Indenture contains a provision entitling the Trustee to be indemnified
by the Holders before exercising any right or power under the Indenture at the
request of any of the Holders. (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 such series.
(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, but the Holder has an absolute right to receipt of
principal at Stated Maturity and interest on any overdue principal or to
institute suit for the enforcement thereof. (Sections 7.07 and 7.08)
8
<PAGE>
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 such series waive any past defaults
except (a) a default in payment of the principal of (or premium, if any) or
interest, if any, on any Debt Security of such series and (b) a default in
respect of a covenant or provision of the Indenture which cannot be amended or
modified without the consent of the Holder of each Debt Security affected.
(Section 7.13)
The Indenture requires the Company to furnish to the Trustee annual
statements as to the fulfillment by the Company of its obligations under the
Indenture. (Sections 9.04 and 12.06)
CONCERNING THE TRUSTEE
Bank of America N.T. & S.A. is an affiliate of the Trustee and has extended
lines of credit to the Company, and, as either principal or fiduciary, also owns
or may own debt of the Company. The Company has other customary banking
relationships with Bank of America N.T. & S.A. in the ordinary course of
business, and American Express has or may have similar customary banking
relationships. If a bank or trust company other than BankAmerica National Trust
Company is to act as Trustee for a series of Debt Securities, information
concerning such other Trustee may be set forth in the Prospectus Supplement
relating to such Debt Securities.
DEFEASANCE OF THE INDENTURE AND DEBT SECURITIES
Except as otherwise set forth in the Prospectus Supplement relating to any
series of the Debt Securities, the Company will be deemed to have paid and
discharged the entire indebtedness on the Debt Securities of such series, and
the Company's obligations under the Indenture with respect to the Debt
Securities of such series (other than certain specified obligations of the
Company such as the obligations to maintain a security register pertaining to
transfers of the Debt Securities, to maintain a paying agency office, and to
replace stolen, lost or destroyed Debt Securities) will cease to be in effect,
from and after the ninety-first day following the deposit with the Trustee, in
trust, of (i) money in an amount in the currency in which the Debt Securities of
such series are denominated, or (ii) U.S. Government Obligations in the case of
Debt Securities denominated in United States Dollars or obligations issued or
guaranteed by the government which issued the currency in which the Debt
Securities of such series are denominated in the case of Debt Securities
denominated in Foreign Currencies, which through the payment of interest and
principal in respect thereof in accordance with their terms, will provide money
in an amount in the currency in which the Debt Securities of such series are
denominated, or (iii) a combination thereof, sufficient to pay and discharge the
principal (and premium, if any) and interest, if any, to the date of maturity
on, such series of Debt Securities, provided that the Company has delivered to
the Trustee an Opinion of Counsel to the effect that Holders of the Debt
Securities of such series will not recognize gain or loss on such Debt
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 6.02) In the event of any
such defeasance, Holders of such Debt Securities would be able to look only to
such trust fund for payment of principal and premium, if any, and interest, if
any, on their Debt Securities until maturity.
DESCRIPTION OF WARRANTS
The Company may issue Warrants for the purchase of Debt Securities.
Warrants may be issued independently or together with any Debt Securities
offered by any Prospectus Supplement and may be attached to or separate from
such Debt Securities. The Warrants are to be issued under Warrant Agreements to
be entered into between the Company and a bank or trust company, as Warrant
Agent, all as set forth in the Prospectus Supplement relating to the particular
issue of Warrants. The Warrant Agent will act solely as an agent of the Company
in connection with the Warrant Certificates and will not assume any obligation
or relationship of agency or trust for or with any holders of Warrant
Certificates 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 Warrant Certificate does not purport to be complete and is
qualified in its entirety by reference to the Warrant Agreement and the Warrant
Certificate.
9
<PAGE>
GENERAL
Reference is made to the Prospectus Supplement that accompanies this
Prospectus for the following terms and other information with respect to the
Warrants that may be offered thereby: (i) the offering price; (ii) the currency
or currencies for which Warrants may be purchased; (iii) the designation,
aggregate principal amount, currency or currencies and terms of the Debt
Securities purchasable upon exercise of the Warrants; (iv) if applicable, the
designation and terms of the Debt Securities with which the Warrants are issued
and the number of Warrants issued with each such Debt Security; (v) if
applicable, the date on and after which the Warrants and the related Debt
Securities will be separately transferable; (vi) the principal amount of Debt
Securities purchasable upon exercise of one Warrant and the price and currency
or currencies at which such principal amount of Debt Securities may be purchased
upon such exercise; (vii) the date on which the right to exercise the Warrants
shall commence and the date (the 'Expiration Date') on which such right shall
expire; (viii) federal income tax consequences; and (ix) any other terms of the
Warrants.
Warrant Certificates will be issued only in fully registered form and may
be exchanged for new Warrant Certificates of different denominations, may be
presented for registration of transfer, and may be exercised at the corporate
trust office of the Warrant Agent or any other office indicated in the
Prospectus Supplement. 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 such exercise, including the right to receive payments of
principal of, premium, if any, or interest, if any, on the Debt Securities
purchasable upon such exercise or to enforce covenants in the Indenture.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder to purchase such principal amount of
Debt Securities at such exercise price as shall in each case be set forth in, or
calculable from, the Prospectus Supplement relating to the Warrants. Warrants
may be exercised at any time up to 5:00 P.M. New York time on the Expiration
Date set forth in the Prospectus Supplement relating to such Warrants. After the
close of business on the Expiration Date (or such later date to which such
Expiration Date may be extended by the Company), unexercised Warrants will
become void.
Warrants may be exercised by delivery to the Warrant Agent of payment as
provided in the Prospectus Supplement of the amount required to purchase the
Debt Securities purchasable upon such exercise together with certain information
set forth on the reverse side of the Warrant Certificate. Warrants will be
deemed to have been exercised upon receipt of the exercise price, subject to the
receipt within five business days of the Warrant Certificate evidencing such
Warrants. Upon receipt of such payment and the Warrant Certificate properly
completed and duly executed at the corporate trust office of the Warrant Agent
or any other office indicated in the Prospectus Supplement, the Company will, as
soon as practicable, issue and deliver the Debt Securities purchasable upon such
exercise. If fewer than all of the Warrants represented by such Warrant
Certificate are exercised, a new Warrant Certificate will be issued for the
remaining amount of Warrants.
PLAN OF DISTRIBUTION
The Company may sell the Securities (i) through underwriters or dealers;
(ii) directly to one or more purchasers; (iii) through agents; or (iv) through a
combination of any such methods of sale. The Prospectus Supplement with respect
to the Securities being offered thereby sets forth the terms of the offering of
such Securities, including the name or names of any underwriters or agents, the
purchase price of such Securities and the proceeds to the Company from such
sale, any underwriting discounts or sales agents' commissions and other items
constituting underwriters' or agents' compensation, any initial public offering
price, any discounts or concessions allowed or reallowed or paid to dealers and
any securities exchanges on which such Securities may be listed. Only
underwriters so named in the Prospectus Supplement are deemed to be underwriters
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
10
<PAGE>
purchase such Securities will be subject to certain conditions precedent, and
the underwriters will be obligated to purchase all the Securities of the series
offered by the Prospectus Supplement relating to such 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.
Securities may also be sold directly by the Company or through agents
designated by the Company from time to time. Any agent involved in the offering
and sale of the Securities of the series in respect of which this Prospectus is
delivered is named, and any commissions payable by the Company to such agent are
set forth, in the Prospectus Supplement relating to such series. Unless
otherwise indicated in such Prospectus Supplement, any such agent is acting on a
best efforts basis for the period of its appointment.
If so indicated in a Prospectus Supplement, the Company will authorize
agents, underwriters or dealers to solicit offers by certain institutional
investors to purchase Securities of the series to which such Prospectus
Supplement relates providing for payment and delivery on a future date specified
in such Prospectus Supplement. There may be limitations on the minimum amount
which may be purchased by any such institutional investor or on the portion of
the aggregate principal amount of the particular Securities which may be sold
pursuant to such arrangements. Institutional investors to which such 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 the Company. The
obligations of any such purchasers pursuant to such delayed delivery and payment
arrangements will not be subject to any conditions except that (i) the purchase
by an institution of the particular Securities shall not at the time of delivery
be prohibited under the laws of any jurisdiction in the United States to which
such institution is subject, and (ii) if the particular Securities are being
sold to underwriters, the Company shall have sold to such underwriters the total
principal amount of such Securities less the principal amount thereof covered by
such arrangements. Underwriters will not have any responsibility in respect of
the validity of such arrangements or the performance of the Company or such
institutional investors thereunder.
Agents and underwriters may be entitled under agreements entered into with
the Company to indemnification by the Company against civil liabilities,
including liabilities under the Securities Act of 1933, as amended, or to
contribution with respect to payments which the agents or underwriters may be
required to make in respect thereof. Agents and underwriters may engage in
transactions with, or perform services for, the Company in the ordinary course
of business.
LEGAL MATTERS
The validity of the Securities will be passed upon for the Company by David
S. Carroll, Counsel to the Company, American Express Tower, World Financial
Center, New York, New York. Certain legal matters will be passed upon for any
underwriters or agents by Simpson Thacher & Bartlett (a partnership which
includes professional corporations), 425 Lexington Avenue, New York, New York.
EXPERTS
The consolidated financial statements and schedule of the Company included
in the Company's Annual Report on Form 10-K for the year ended December 31, 1994
have been audited by Ernst & Young LLP, independent auditors, as set forth in
their report included therein and incorporated herein by reference. Such
consolidated financial statements and schedule have been incorporated herein by
reference in reliance upon such report given upon the authority of such firm as
experts in accounting and auditing.
11
<PAGE>
===========================================================================
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS AND THE ACCOMPANYING PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE,
SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED. NEITHER THE DELIVERY OF THIS PROSPECTUS AND THE ACCOMPANYING
PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR THEREUNDER SHALL UNDER ANY
CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS
OF THE COMPANY SINCE THE DATE HEREOF OR THEREOF. THIS PROSPECTUS AND THE
ACCOMPANYING PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER OR SOLICITATION BY
ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED
OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO
SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
------------------------
TABLE OF CONTENTS
PROSPECTUS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information................... 2
Documents Incorporated by Reference..... 2
The Company............................. 3
Use of Proceeds......................... 4
Description of Debt Securities.......... 4
Description of Warrants................. 9
Plan of Distribution.................... 10
Legal Matters........................... 11
Experts................................. 11
</TABLE>
AMERICAN EXPRESS CREDIT
CORPORATION
DEBT SECURITIES
AND WARRANTS
TO PURCHASE DEBT SECURITIES
------------------------
PROSPECTUS
SEPTEMBER , 1995
------------------------
===========================================================================
<PAGE>
PART II--INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with this Registration Statement are, subject to
further contingencies, estimated to be as follows:
<TABLE>
<S> <C>
Registration Statement Filing Fee..... $344,827.58
Printing and engraving expenses....... 150,000
Legal fees and expenses............... 50,000
Blue Sky fees and expenses............ 25,000
Accounting fees and expenses.......... 125,000
Fees and expenses of Trustees......... 150,000
Fees of Rating Agencies............... 400,000
Miscellaneous......................... 10,000
-------------
Total.......................... $1,254,827.58
-------------
-------------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware Corporation Law permits corporations in a
non-derivative action to indemnify any director or officer of the corporation
against expenses, including attorneys' fees, judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with the
defense of any action, suit or proceeding in which he is made a party by reason
of being or having been a director or officer of the corporation, if such
director or officer acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. In a derivative action, a corporation may indemnify
any director or officer of the corporation against expenses, including
attorneys' fees, actually and reasonably incurred by him in connection with the
defense or settlement of any action or suit, in which he is made a party by
reason of being or having been a director or officer of the corporation, if such
director or officer acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation, but no
indemnification, without court approval, shall be made if such director or
officer is adjudged liable for negligence or misconduct in the performance of
his duties to the corporation.
Section 9.1 of Article IX of the By-laws of the Company provides that the
Company shall indemnify any person made, or threatened to be made, a party to
any action, suit or proceeding, civil, criminal, administrative or
investigative, by reason of the fact that he, his testator or intestate, is or
was a director or officer of the Company or of any other corporation of any type
or kind, domestic or foreign, which he served in any capacity at the request of
the Company, against judgments, fines, amounts paid in settlement and reasonable
expenses (which the Company may advance), including attorneys' fees, actually
and necessarily incurred as a result of such action, suit or proceeding, or any
appeal therein. The foregoing right of indemnification shall not be exclusive of
any other right to which any such person may be entitled.
Directors and officers of the Company are covered under directors and
officers liability insurance policies purchased by American Express Company from
Aetna Casualty and Surety Company, Lloyds underwriters, Reliance Insurance
Companies, A.C.E. Insurance Company, Ltd., Chubb Insurance Company, Zurich
Insurance Company and CNA. These policies provide coverage in certain situations
where the Company cannot directly indemnify its officers and directors. Similar
coverage is provided for directors and employees who are fiduciaries of the
Company's employee benefit plans under an insurance policy purchased by the
Company from National Union Fire Insurance Company.
II-1
<PAGE>
ITEM 16. EXHIBITS.
The 'Exhibit Index' on pages E-1 and E-2 is hereby incorporated by
reference.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the 'Act');
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the 'Calculation of
Registration Fee' table in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
Registration Statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic 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 (the 'Exchange Act') that are incorporated
by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Act,
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.
(3) 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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the provisions described under Item 15 above 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 such
Act 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, officer or controlling person in
connection with the securities being registered, 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 Act and will
be governed by the final adjudication of such issue.
II-2
<PAGE>
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 20th day of
September, 1995.
AMERICAN EXPRESS CREDIT CORPORATION
By: /s/ VINCENT P. LISANKE
Vincent P. Lisanke,
President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following person in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
-------------------------------- ------------------------------------- ---------------
<S> <C> <C>
* Chairman of the Board (principal September 20, 1995
-------------------------------- financial officer)
Walter S. Berman
/s/ VINCENT P. LISANKE President, Chief Executive Officer, September 20, 1995
-------------------------------- Chief Accounting Officer and Director
Vincent P. Lisanke
-------------------------------- Director
Michael P. Monaco
*By /s/ VINCENT P. LISANKE
--------------------------------
Vincent P. Lisanke,
Attorney-in-Fact
</TABLE>
II-3
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
FILED ELECTRONICALLY HEREWITH (+),
FILED UNDER COVER OF FORM SE (*),
FILED ELECTRONICALLY AS A SEPARATE SUBMISSION (**) OR
EXHIBIT INCORPORATED BY REFERENCE TO THE EXHIBIT SET FORTH BELOW.
------- ---------------------------------------------------------
<C> <S> <C>
1(a) -- Form of Underwriting Agreement for Debt Securities +
1(b) -- Form of Underwriting Agreement for Debt Securities +
and Warrants to Purchase Debt Securities
1(c) -- Form of Agency Agreement, dated as of May 1, 1989, Exhibit 1(c) to Post-Effective Amendment No. 1 to the
between the Company and Lehman Brothers Inc., as Company's Registration Statement (No. 33-22347)
Agent
1(d) -- Form of Amendment No. 1 to Agency Agreement, dated Exhibit 1(d) to the Company's Registration Statement on
as of May 1, 1989, between the Company and Lehman Form S-3 (No. 33-47497)
Brothers Inc., as Agent
1(e) -- Form of Amendment No. 2 to Agency Agreement, dated Exhibit 1(e) to the Company's Registration Statement on
as of May 1, 1989, between the Company and Lehman Form S-3 (No. 33-47497)
Brothers Inc., as Agent
4(a) -- Form of Indenture, dated as of September 1, 1987, Exhibit 4(s) to the Company's Registration Statement on
between the Company and BankAmerica National Trust Form S-3 (No. 33-16874)
Company (as successor to Security Pacific National
Trust Company (New York)), as Trustee
4(b) -- Form of Note with optional redemption provisions Exhibit 4(t) to the Company's Registration Statement on
Form S-3 (No. 33-16874)
4(c) -- Form of Debenture with optional redemption and Exhibit 4(u) to the Company's Registration Statement on
sinking fund provisions Form S-3 (No. 33-16874)
4(d) -- Form of Original Issue Discount Note with optional Exhibit 4(v) to the Company's Registration Statement on
redemption provisions Form S-3 (No. 33-16874)
4(e) -- Form of Zero Coupon Note with optional redemption Exhibit 4(w) to the Company's Registration Statement on
provisions Form S-3 (No. 33-16874)
4(f) -- Form of Variable Rate Note with optional Exhibit 4(x) to the Company's Registration Statement on
redemption and repayment provisions Form S-3 (No. 33-16874)
4(g) -- Form of Extendible Note with optional redemption Exhibit 4(y) to the Company's Registration Statement on
and repayment provisions Form S-3 (No. 33-16874)
4(h) -- Form of Fixed Rate Medium-Term Note Exhibit 4(z) to the Company's Registration Statement on
Form S-3 (No. 33-16874)
4(i) -- Form of Floating Rate Medium-Term Note Exhibit 4(aa) to the Company's Registration Statement on
Form S-3 (No. 33-16874)
4(j) -- Form of Warrant Agreement Exhibit 4(bb) to the Company's Registration Statement on
Form S-3 (No. 33-16874)
4(k) -- Form of Supplemental Indenture providing for an Exhibit 4(cc) to the Company's Registration Statement on
additional Trustee Form S-3 (No. 33-16874)
4(l) -- First Supplemental Indenture, dated as of November Exhibit 4(cc) to Post-Effective Amendment No. 1 to the
1, 1987, between the Company and Bank of Montreal Company's Registration Statement (No. 33-22347)
Trust Company, as Trustee
4(m) -- Second Supplemental Indenture, dated as of January Exhibit 4(dd) to Post-Effective Amendment No. 1 to the
15, 1988, between the Company and The First Company's Registration Statement (No. 33-22347)
National Bank of Boston, as Trustee
</TABLE>
E-1
<PAGE>
<TABLE>
<CAPTION>
FILED ELECTRONICALLY HEREWITH (+),
FILED UNDER COVER OF FORM SE (*),
FILED ELECTRONICALLY AS A SEPARATE SUBMISSION (**) OR
EXHIBIT INCORPORATED BY REFERENCE TO THE EXHIBIT SET FORTH BELOW.
------- ---------------------------------------------------------
4(n) -- Third Supplemental Indenture, dated as of April 1, Exhibit 4(ee) to Post-Effective Amendment No. 1 to the
1988, between the Company and Chemical Bank (as Company's Registration Statement (No. 33-22347)
successor to Manufacturers Hanover Trust Company),
as Trustee
<C> <S> <C>
4(o) -- Fourth Supplemental Indenture, dated as of May 1, Exhibit 4(ff) to Post-Effective Amendment No. 1 to the
1988, between the Company and Trust Company Bank, Company's Registration Statement (No. 33-22347)
as Trustee
4(p) -- Fifth Supplemental Indenture, dated as of March Exhibit 4(gg) to Post-Effective Amendment No. 1 to the
28, 1989, between the Company and The Bank of New Company's Registration Statement (No. 33-22347)
York, as Trustee
4(q) -- Sixth Supplemental Indenture, dated as of May 1, Exhibit 4(hh) to Post-Effective Amendment No. 1 to the
1989, between the Company and Bank of Montreal Company's Registration Statement (No. 33-22347)
Trust Company, as Trustee
4(r) -- Seventh Supplemental Indenture, dated as of July +
28, 1995, between the Company and The Chase
Manhattan Bank, N.A.
5 -- Opinion and Consent of David S. Carroll, Esq. +
12 -- Computation in support of ratio of earnings to Exhibit 12 to the Company's Annual Report on Form 10-K
fixed charges for the year ended December 31, 1994
24(a) -- Consent of Counsel Included in Exhibit 5 hereto
24(b) -- Consent of Ernst & Young LLP +
25(a) -- Power of Attorney +
26(a) -- Form T-1 Statement of Eligibility and +
Qualification under the Trust Indenture Act of
1939 of BankAmerica National Trust Company (as
successor to Security Pacific National Trust
Company (New York))
</TABLE>
E-2
Exhibit 1(a)
AMERICAN EXPRESS CREDIT CORPORATION
DEBT SECURITIES
UNDERWRITING AGREEMENT BASIC PROVISIONS
September 1, 1995
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 2 (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 in Section l hereof relating to the series of debt securities to
be issued and sold by the Company pursuant thereto (the "Securities") to the
several underwriters named therein (the "Underwriters"). The Securities will
be issued under an indenture (the "Indenture"), dated as of September 1, l987,
between the Company and BankAmerica National Trust Company (as successor to
Security Pacific National Trust Company (New York)), as trustee (such trust
company, or such other trustee as may be named for the Securities, being
hereinafter referred to as the "Trustee"). The Terms Agreement relating to
the Securities (the "Terms Agreement"), together with the provisions hereof
incorporated therein by reference, is herein referred to as this "Agreement."
If the Underwriters consist only of the firm or firms referred to in the Terms
Agreement as Representative or Representatives, then the terms "Underwriters"
and "Representatives," as used herein, shall each be deemed to refer to such
firm or firms.
1. Terms Agreement. The obligation of the Underwriters to purchase,
and the Company to sell, the Securities is evidenced by the Terms Agreement
delivered at the time the Company determines to sell the Securities. The
Terms Agreement specifies the firm or firms which 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, 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 a post-effective
amendment to the Registration Statement or the Prospectus Supplement (each as
hereinafter defined).
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
1
(a) A registration statement on Form S-3, including a
preliminary prospectus, relating to the Securities has been carefully
prepared by the Company in conformity with the requirements of the
Securities Act of 1933, as amended (the "Act"), the Trust Indenture Act
of l939, as amended (the "Trust Indenture Act"), and the rules and
regulations (the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") thereunder; such registration statement
has been filed with the Commission and has become effective. Such
registration statement and prospectus may have been amended or
supplemented from time to time prior to the date of this Agreement; any
such amendment to the Registration Statement was so prepared and filed
and any such amendment has become effective. A prospectus supplement
(the "Prospectus Supplement") including a prospectus, relating to the
Securities has been so prepared. The Prospectus Supplement, and if not
previously filed, such prospectus, will be filed pursuant to Rule 424
under the Act. Copies of such registration statement and prospectus,
any such amendment or supplement, the Prospectus Supplement and all
documents incorporated by reference therein which were filed with the
Commission on or prior to the date of the Terms Agreement (including one
fully executed copy of the registration statement and of each amendment
thereto for counsel for the Underwriters) have been delivered to you.
Such registration statement and prospectus, as amended or supplemented
to the date of the Terms Agreement and as supplemented by the Prospectus
Supplement are herein referred to as the "Registration Statement" and
the "Prospectus", respectively. Any reference herein to the
Registration Statement or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein which were filed
with the Commission on or prior to the date of the Terms Agreement and
any reference to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement or the Prospectus shall be deemed
to refer to and include the filing of any document with the Commission
deemed to be incorporated by reference therein after the date of the
Terms Agreement.
(b) The Registration Statement, at the time it became effective,
any post-effective amendment thereto, at the time it became effective,
the Registration Statement and the Prospectus, as of the date of the
Terms Agreement and at the Closing Date (as hereinafter defined), and
any amendment or supplement thereto, conformed or will conform in all
material respects to the requirements of the Act, the Trust Indenture
Act and the Rules and Regulations; and no such document included or will
include an untrue statement of a material fact or omitted or will omit
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; except that the foregoing
shall not apply to (i) statements in or omissions from any such document
in reliance upon, and in conformity with, written information furnished
to the Company by or on behalf of any Underwriter through you,
specifically for use in the preparation thereof or (ii) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act
of the Trustee.
(c) The documents incorporated by reference in the Registration
Statement or the Prospectus, when they became effective or were filed
with the Commission, as the case may be, under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), conformed, and any
documents so filed and incorporated by reference after the date of the
Terms Agreement will, when they are filed with the Commission, conform,
in all material respects to the requirements of the Act and the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder.
(d) The annual consolidated financial statements and related
schedules of the Company incorporated by reference in the Registration
Statement and Prospectus fairly present the financial condition of the
Company and its consolidated subsidiaries as of the dates indicated and
the results of operations, changes in shareholder's equity and statement
of cash flows for the periods therein specified; and said financial
statements have been prepared in accordance with generally accepted
principles of accounting, applied on a consistent basis throughout the
periods involved (except for changes in accounting principles or the
2
application thereof with which Ernst & Young LLP or other independent
public accountants shall have concurred). Ernst & Young LLP, who have
examined such financial statements, as set forth in their reports
incorporated by reference in the Registration Statement and the
Prospectus, are independent public accountants within the meaning of the
Act and the Rules and Regulations; and the supporting schedules included
or incorporated in the Registration Statement and Prospectus fairly
present the information required to be stated therein. The unaudited
financial statements of the Company, if any, included in the Prospectus
and the Registration Statement and the related notes are true, complete
and correct, subject to normally recurring changes resulting from
year-end audit adjustments, and prepared in accordance with the
instructions to Form 10-Q.
(e) 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
hereinafter defined), 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 description
thereof in the Prospectus.
(f) Subsequent to the respective dates as of which information
contained in the Registration Statement and the Prospectus is given,
except as contained in or contemplated by the Registration Statement and
the Prospectus, (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 which are material in relation to the Company and its
subsidiaries taken as a whole.
(g) Each of the Company and its subsidiaries is duly
incorporated and in good standing under the laws of the jurisdiction of
its organization; each of the Company and its subsidiaries is duly
qualified to do business as a foreign corporation and is in good
standing in all the jurisdictions in which, in the opinion of counsel
for the Company, such qualification is required or, if not so qualified,
the failure so to qualify would not have a material adverse effect on
the business or financial condition of the Company and its subsidiaries
taken as a whole; each of the Company and its subsidiaries has full
power and authority to own its properties and conduct its business.
(h) Neither the issuance or sale of the Securities, nor the
consummation of any other of the transactions contemplated herein or in
any Delayed Delivery Contracts, nor the fulfillment of the terms hereof
or thereof, will conflict with, result in a breach of or constitute a
default under the terms of any indenture or other agreement or
instrument to which the Company or any of its subsidiaries is a party or
by which any of them is bound, or, to the best of the knowledge of the
Company, any order or regulation applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Company or any of its
subsidiaries, except where any such conflict, breach or default would
not be material to the Company and its subsidiaries taken as a whole.
(i) The Company knows of no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party or of
which any property of the Company or any of its subsidiaries is the
3
subject, other than litigation referred to in material contained in the
Registration Statement or litigation which, if determined adversely to
the Company or its subsidiaries would not have a material adverse effect
upon the condition (financial or other) or the earnings of the Company
and its subsidiaries taken as a whole; and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(j) Neither the Company nor any of its subsidiaries is in
default in the payment of principal of or interest on any indebtedness
or in the performance of any covenant, term or condition contained in
any instrument evidencing any such indebtedness or under which it was
created, the effect of which default would be material to the Company
and its subsidiaries taken as a whole, and at the Closing Date
hereinafter mentioned there shall not exist any Event of Default (as
defined in the Indenture) or any condition, event or act which, with
notice or lapse of time or both, would constitute such an Event of
Default.
(k) The issuance and sale of the Securities and the compliance
by the Company and its subsidiaries with all of the provisions of this
Agreement, the Indenture, any Delayed Delivery Contracts and the
Securities, will not conflict with or result in a breach of any of the
provisions of, or constitute a default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any of the
property or assets of, the Company or any of its subsidiaries
pursuant to the terms of any agreement or instrument to which the
Company or any of its subsidiaries is now or on the Closing Date will be
a party, and 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 Company, a New York corporation
("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 which 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 which is a party to any of
the Agreements of Sale and Purchase is now or on the Closing Date
hereinafter mentioned will be a party, except in the case of (A) 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 which 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.
(l) No consent, approval, authorization or order of, or filing
with, any court or governmental agency, authority or body is required
for the consummation of the transactions contemplated by this Agreement,
any Delayed Delivery Contract, the Indenture or the Agreements of Sale
and Purchase in connection with the issuance or sale of the Securities,
except such as have been obtained under the Act and the Trust Indenture
Act and as may be required or obtained under the securities or blue sky
laws of any jurisdiction; and the Company has full power and authority
to authorize, issue and sell the Securities as contemplated by this
Agreement and any Delayed Delivery Contracts.
(m) The Agreements of Sale and Purchase conform in all material
respects to the descriptions thereof included in the Registration
Statement and the Prospectus.
4
(n) 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 free and clear of all liens and encumbrances, and all
of the outstanding shares of capital stock of such subsidiary have been
duly and validly issued and are fully paid and non-assessable and owned
by American Express free and clear of all liens and encumbrances.
(o) (i) 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 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.
(ii) 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 be material to the
Company and its subsidiaries taken as a whole.
(p) The Company has not taken and will not take, directly or
indirectly, any action designed to or which has constituted or which
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.
3. Purchase, Sale and Delivery of Securities. If so authorized in the
Terms Agreement, the Underwriters may solicit offers from investors of the
types set forth in the 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 I 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 10:00 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 which 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.
The amount of Securities to be purchased by each Underwriter as set
forth in the Terms Agreement shall be reduced by an amount which 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
5
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 amount of Securities set
forth in the Terms Agreement less the aggregate amount of Contract Securities.
The Securities to be purchased by the Underwriters will be delivered by
the Company to you for the accounts of the several Underwriters at the office
specified in the Terms Agreement against payment of the purchase price
therefor by certified or official bank check or checks in New York Clearing
House funds (or as otherwise specified in the Terms Agreement) payable to the
order of the Company on the date and at the times specified in the Terms
Agreement, or at such other time not later than eight full business days
thereafter as you and the Company determine, such time being herein referred
to as the "Closing Date." The Securities will be prepared in definitive form
and in such authorized denominations and registered in such names as you may
require upon at least two business days' prior notice to the Company and will
be made available for checking and packaging at the office at which they are
to be delivered on the Closing Date (or such other office as may be specified
for that purpose in the Terms Agreement) at least one business day prior to
the Closing Date.
It is understood that you, acting individually and not in a
representative capacity, may (but shall not be obligated to) make payment to
the Company on behalf of any other Underwriter for Securities to be purchased
by such Underwriter. Any such payment by you shall not relieve any such
Underwriter of any of its obligations hereunder.
The Company will pay to you on the Closing Date for the accounts of the
Underwriters any fee, commission or other compensation specified in the Terms
Agreement. Such payment will be made by certified or official bank check in
New York Clearing House funds.
4. Covenants. The Company covenants and agrees with each Underwriter
that:
(a) The Company will cause the Prospectus Supplement to be filed
pursuant to Rule 424 under the Act and will notify you promptly of such
filing. During the period in which a prospectus relating to the
Securities is required to be delivered under the Act, the Company will
notify you promptly of the time when any amendment to the Registration
Statement has become effective or any subsequent supplement to the
Prospectus has been filed and of any request by the Commission for any
amendment of or supplement to the Registration Statement or the Prospectus
or for additional information; it will prepare and file with the
Commission, promptly upon your request, any amendments or supplements to
the Registration Statement or the Prospectus which, in your opinion, may
be necessary or advisable in connection with the distribution of the
Securities by the Underwriters; it will file no amendment or supplement to
the Registration Statement or the Prospectus (other than any prospectus
supplement relating to the offering of securities other than the
Securities registered under the Registration Statement or any document
required to be filed under the Exchange Act which upon filing is deemed to
be incorporated by reference therein) to which you shall reasonably object
by notice to the Company after having been furnished a copy a reasonable
time prior to the filing; and it will furnish to you at or prior to the
filing thereof a copy of any such prospectus supplement or any document
which upon filing is deemed to be incorporated by reference in the
Registration Statement or Prospectus.
(b) The Company will advise you, promptly after it shall receive
notice or obtain knowledge thereof, of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement,
of the suspension of the qualification of the Securities for offering or
sale in any jurisdiction, or of the initiation or threatening of any
proceeding for any such purpose; and it will promptly use its best
6
efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such a stop order should be issued.
(c) Within the time during which a prospectus relating to the
Securities is required to be delivered under the Act, the Company will
comply as far as it is able with all requirements imposed upon it by the
Act, as now and hereafter amended, and by the Rules and Regulations, as
from time to time in force, so far as necessary to permit the continuance
of sales of or dealings in the Securities as contemplated by the
provisions hereof and the Prospectus. If during such period any event
occurs as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances then existing, not misleading, or if during such period
it is necessary to amend or supplement the Registration Statement or the
Prospectus to comply with the Act, the Company will promptly notify you
and will amend or supplement the Registration Statement or the Prospectus
(at the expense of the Company) so as to correct such statement or
omission or effect such compliance.
(d) The Company will use its best efforts to qualify the Securities
for sale under the securities laws of such jurisdictions as you reasonably
designate, to maintain such qualifications in effect so long as required
for the distribution of the Securities and to arrange for the
determination of the legality of the Securities for purchase by
institutional investors, except that the Company shall not be required in
connection therewith to qualify to do business in any jurisdiction where
it is not now so qualified or to take any action which would subject it to
general or unlimited service of process in any jurisdiction where it is
not now so subject.
(e) The Company will furnish to the Underwriters copies of the
Registration Statement and the Prospectus (including all documents
incorporated by reference therein), and all amendments and supplements to
the Registration Statement or the Prospectus which are filed with the
Commission during the period in which a prospectus relating to the
Securities is required to be delivered under the Act (including all
documents filed with the Commission during such period which are deemed to
be incorporated by reference therein), in each case in such quantities as
you may from time to time reasonably request.
(f) So long as any of the Securities are outstanding, the Company
agrees to furnish to you (i) as soon as available, copies of all reports
to the Company's security holders generally (other than reports made
solely to American Express) and (ii) all reports and financial statements
filed by or on behalf of the Company with the Commission or any national
securities exchange.
(g) The Company will make generally available to its security
holders and to you as soon as practicable, but in any event not later than
15 months after the end of the Company's current fiscal quarter, an
earning statement (which need not be audited) covering a l2-month period
beginning after the date upon which the Prospectus Supplement is filed
pursuant to Rule 424 under the Act which shall satisfy the provisions of
Section 11(a) of the Act.
(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 Terms
Agreement) incurred by them in connection with the matters referred to in
Section 4(d) hereof and the preparation of memoranda relating
7
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.
(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 or such other securities exchange specified in
the Terms Agreement and for the registration of the Securities under the
Exchange Act to become effective.
(j) The Company will not, without your consent, offer or sell, or
publicly announce its intention to 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) during the period
beginning the date of the Terms Agreement and ending the business day
following the Closing Date.
5. Conditions of the Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Securities as provided herein shall
be subject to the accuracy in all material respects, as of the date of the
Terms Agreement and the Closing Date (as if made at the Closing Date), of the
representations and warranties of the Company herein, to the performance by
the Company of its obligations hereunder, and to the following additional
conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall
have been instituted or, to the knowledge of the Company or any
Underwriter, threatened by the Commission, and any request of the
Commission for additional information (to be included in the Registration
Statement or the Prospectus or otherwise) shall have been complied with to
your satisfaction.
(b) No Underwriter shall have advised the Company that the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, contains an untrue statement of fact which in your opinion is
material, or omits to state a fact which in your opinion is material and
is required to be stated therein or is necessary to make the statements
therein not misleading.
(c) Except as contemplated in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there shall not have been any material
change, on a consolidated basis, in the capital stock, short-term debt,
long-term debt, ratio of earnings to fixed changes, accounts receivable,
total assets, total revenue or total net income of the Company and its
subsidiaries, in the condition (financial or other), or in the earnings,
affairs or business prospects of the Company and its subsidiaries, taken
as a whole, whether or not arising in the ordinary course of business, or
any change in the rating assigned by any nationally recognized securities
rating agency to any debt securities of the Company which, in your
judgment, makes it impractical or inadvisable to offer or deliver the
Securities on the terms and in the manner contemplated in the Prospectus.
(d) The Company shall have furnished you the opinion of Counsel to
the Company, dated the Closing Date, to the effect that:
8
(i) The Company has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of the
State of Delaware, and is duly qualified to do business as a foreign
corporation and in good standing in each State or other jurisdiction in
which such qualification is required 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;
(ii) The Indenture has been duly authorized, executed and
delivered by the Company, 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 to
applicable bankruptcy, reorganization, insolvency, 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;
(iii) The Securities have been validly authorized; and, when duly
executed by the proper officers of the Company, duly authenticated by
the Trustee and delivered as contemplated hereby and by the Indenture
(and, in the case of any Contract Securities, as contemplated by the
Delayed Delivery Contracts with respect thereto), will be validly issued
and outstanding obligations of the Company enforceable in accordance
with their terms and entitled to the benefits of the Indenture subject
to applicable bankruptcy, reorganization, insolvency, moratorium or
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 conform in all
material respects to the description thereof in the Prospectus;
(iv) The Indenture conforms in all material respects to the
description thereof in the Prospectus;
(v) The Registration Statement has become effective under the
Act and, to the best of the knowledge of such counsel, no stop order
suspending the effectiveness thereof has been issued and no proceedings
for that purpose have been instituted or are pending or contemplated
under the Act, and the Registration Statement, the Prospectus, and each
amendment or supplement thereto comply as to form in all material
respects with the requirements of the Act, the Exchange Act and the
Trust Indenture Act and the applicable rules and regulations thereunder
(except that such counsel need express no opinion as to the financial
statements or other data of a financial or statistical nature); such
counsel has no reason to believe that either the Registration Statement
or the Prospectus or any such amendment or supplement contains any
untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading (except as aforesaid); and the statements made in
the Prospectus under the heading "Description of Debt Securities" and
any similar headings in the Prospectus Supplement, insofar as they
purport to summarize provisions of documents specifically referred to
therein, fairly present the information called for with respect thereto
by the registration statement form;
(vi) This Agreement and any Delayed Delivery Contracts have been
duly authorized, executed and delivered by the Company;
(vii) No consent, approval authorization or order of any court or
governmental agency, authority or body, to the best knowledge of such
counsel, is required for the consummation by the Company of the
transactions contemplated herein, in any Delayed Delivery Contract, in
the Indenture or in the Agreements of Sale and Purchase, except such as
have been obtained under the Act and the Trust Indenture Act and such as
may be required under the securities or blue sky laws of any
jurisdiction in connection with the sale of the Securities;
9
(viii) All outstanding shares of common stock of the Company are
owned by a wholly owned subsidiary of American Express free and clear of
any liens or encumbrances, and all outstanding shares of common stock of
such subsidiary are owned by American Express free and clear of any
liens or encumbrances;
(ix) The Agreements of Sale and Purchase to which the Company is
a party have been duly authorized, executed and delivered by each party
thereto, and constitute valid and legally binding instruments
enforceable in accordance with their respective terms subject to
applicable bankruptcy, reorganization, insolvency, moratorium or 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 to the best of the
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 is a party; and
(x) The consummation of the transactions contemplated herein or
in the Indenture will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any statute
regulating the business or operations of the Company, any indenture,
mortgage, deed of trust, note agreement or other agreement or instrument
known to such counsel to which the Company is a party or by which it is
bound or to which any of the property of the Company is subject, the
Company's charter or by-laws, or any order, rule or regulation
regulating the business or operations of the Company known to such
counsel of any court or governmental agency or body having jurisdiction
over the Company or any of its properties, except where any such breach,
violation or default would not be material to the Company and its
subsidiaries taken as a whole.
(e) You shall have received from your counsel, Simpson Thacher &
Bartlett, such opinion or opinions dated the Closing Date with respect to
the issuance and sale of the Securities, the Registration Statement, the
Prospectus and other related matters as you 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.
(f) The Company shall have furnished to you a certificate of the
Chairman of the Board of Directors, President or any Vice President and of
the Treasurer or an Assistant Treasurer of the Company, dated the Closing
Date, to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Prospectus and this Agreement and
that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date, and
the Company has complied in all material respects with all the
agreements and satisfied all the conditions on its part to be performed
or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for that
purpose have been instituted or, to their knowledge, threatened; and
(iii) the Registration Statement, including any supplements or
amendments thereto, does not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading; the Prospectus,
including any supplements or amendments thereto, does not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; and since the effective date of the Registration
Statement there has not occurred any event concerning which information
is required to
10
be contained in an amended or supplemented Prospectus concerning which
such information is not contained therein.
(g) You shall have received on the Closing Date a letter from Ernst
& Young LLP, dated the Closing Date, to the effect set forth in Exhibit II
hereto, with respect to the Registration Statement and the Prospectus at
the time of the Terms Agreement.
(h) Prior to the Closing Date, the Company shall have furnished to
you such further information, certificates and documents as you may
reasonably request.
6. Indemnification and Contribution. (a) The Company will indemnify
and hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement or a material fact contained in
the registration statement when it became effective, or in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus supplement, 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 will reimburse each Underwriter for any legal or other expenses reasonably
incurred by it in connection with investigating or defending against such
loss, claim, damage, liability or action; provided, however, that (i) the
Company shall 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) an 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 you, specifically
for use in the preparation thereof, or (y) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-l) under the Trust Indenture Act of the Trustee, and
(ii) such indemnity with respect to a preliminary prospectus supplement or
other prospectus shall not inure to the benefit of any Underwriter (or any
person controlling such Underwriter) to the extent that any such loss, claim,
damage or liability of such Underwriter results from the fact that such
Underwriter sold Securities to a person as to whom it shall be established
that there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the Prospectus in any case where such delivery is
required by the Act if the Company has previously furnished copies thereof to
such Underwriter and the loss, claim, damage or liability of such Underwriter
results from an untrue statement or omission of a material fact contained in
such preliminary prospectus supplement or other prospectus which was corrected
in the Prospectus prepared by the Company for use in connection with the
Securities, unless such failure to deliver the Prospectus prepared by the
Company for use in connection with the Securities was a result of
noncompliance by the Company with Section 4(e) hereof.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in any part of the registration statement when it became effective,
or in the Registration Statement, the Prospectus or any amendment or
supplement thereto, or any related preliminary prospectus supplement, 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, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made therein in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any
Underwriter through you, specifically for use in the preparation thereof; and
will reimburse the Company for any legal or other expenses reasonably incurred
11
by the Company in connection with investigating or defending against any such
loss, claim, damage, liability or action. This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have. Unless
otherwise provided in the Terms Agreement, the statements set forth in the
last paragraph of the cover page of the Prospectus Supplement and under the
heading "Underwriting" in the Prospectus Supplement constitute the only
information furnished in writing by or on behalf of the several Underwriters
for inclusion in the Registration Statement and the Prospectus, as the case
may be, and you, as the Representatives, confirm that such statements are
correct.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have
to any indemnified party otherwise than under such subsection. In case any
such action shall be brought against any indemnified party, and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate in, and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnified party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation.
(d) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or (b)
above, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other from the offering of the Securities, or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to
be in the same proportion as the total net proceeds from the offering of the
Securities (before deducting expenses) received by the Company bear to the
total compensation or profit (before deducting expenses) received or realized
by the Underwriters from the purchase and resale, or underwriting, of the
Securities. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters and the parties'
relative intent, 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 contributions
pursuant to this subsection (d) were to be determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by
any other method of allocation which does not take account of the equitable
considerations referred to in the first sentence of this subsection (d). The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (d) shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim (which shall be limited as provided in subsection (c) above if the
indemnifying party has assumed the defense of any such action in accordance
with the provisions thereof) which is the subject
12
of this subsection (d). Notwithstanding the provisions of this subsection
(d), no Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. 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. The
Underwriters' obligations in this subsection (d) to contribute shall be
several in proportion to their respective underwriting obligations and not
joint. Promptly after receipt by an indemnified party under this subsection
(d) of notice of the commencement of any action against such party in respect
of which a claim for contribution may be made against an indemnifying party
under this subsection (d), such indemnified party shall notify the
indemnifying party in writing of the commencement thereof if the notice
specified in subsection (c) above has not been given with respect to such
action; but the omission so to notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party otherwise
than under this subsection (d).
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability which 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 6 shall be in
addition to any liability which 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.
7. Representations and Agreements to Survive Delivery. All
representations, warranties, and agreements of the Company herein or in
certificates delivered pursuant hereto, and the agreements of the several
Underwriters contained in Section 6 hereof, shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of any
Underwriter or any controlling persons, or the Company or any of its officers,
directors or any controlling persons, and shall survive delivery of and
payment for the Securities.
8. Substitution of Underwriters. (a) If any Underwriter or
Underwriters shall fail to take up and pay for the principal amount of
Securities agreed by such Underwriter or Underwriters to be purchased
hereunder, upon tender of such Securities in accordance with the terms hereof,
and the principal amount of Securities not purchased does not aggregate more
than l0% of the total principal amount of the Securities set forth in the
Terms Agreement, the remaining Underwriters shall be obligated to take up and
pay for (in proportion to their respective underwriting obligations hereunder
as set forth in the Terms Agreement, except as may otherwise be determined by
you) the Securities which the withdrawing or defaulting Underwriters agreed
but failed to purchase.
(b) If any Underwriter or Underwriters shall fail to take up and pay
for the principal amount of Securities agreed by such Underwriter or
Underwriters to be purchased hereunder, upon tender of such Securities in
accordance with the terms hereof, and the principal amount of Securities not
purchased aggregates more than 10% of the total principal amount of Securities
set forth in the Terms Agreement hereto, and arrangements satisfactory to you
and the Company for the purchase of such Securities by other persons are not
made within 36 hours thereafter, this Agreement shall terminate. In the event
of a default by any Underwriter as set forth in this Section 8, the Closing
Date shall be postponed for such period, not to exceed seven full business
days, as you shall determine in order that the required changes in the
Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. In the event of any such termination, the
Company
13
shall not be under any liability to any Underwriter (except to the extent
provided in Section 4 (h) hereof) nor shall any Underwriter other than an
Underwriter who shall have failed, otherwise than for some reason permitted
under this Agreement, to purchase the principal amount of Securities agreed by
such Underwriter to be purchased under this Agreement) be under any liability
to the Company (except to the extent provided in Section 6 hereof). Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any non-defaulting Underwriter for
damages occasioned by its default hereunder.
9. Termination. You shall have the right to terminate this Agreement
by giving notice as hereinafter specified at any time at or prior to the
Closing Date if (i) the Company shall have failed, refused or been unable, at
or prior to the Closing Date, to perform, in any material respect, any
agreement on its part to be performed hereunder, (ii) any other condition of
the Underwriters' obligations is not fulfilled in all material respects, (iii)
trading on the New York Stock Exchange shall have been wholly suspended, (iv)
minimum or maximum prices for trading shall have been fixed, or maximum ranges
for prices for securities shall have been required, on the New York Stock
Exchange by such Exchange or by order of the Commission or any other
governmental authority having jurisdiction, (v) a banking moratorium shall
have been declared by federal or New York authorities, or (vi) an outbreak of
major hostilities in which the United States is involved, a declaration of war
by Congress, any other substantial national or international calamity or any
other event or occurrence of a similar character shall have occurred since the
execution of this Agreement which, in your judgment, makes it impractical or
inadvisable to proceed with the completion of the sale of and payment for the
Securities to be purchased by the Underwriters. Any such termination shall be
without liability of any party to any other party except that the provisions
of Section 4(h) and Section 6 shall at all times be effective. If you elect
to terminate this Agreement as provided in this Section, the Company shall be
notified promptly by you by telephone or telegram, confirmed by letter.
10. Notices. All notices or communications hereunder shall be in
writing and if sent to you shall be mailed, delivered or telegraphed and
confirmed to you at your address set forth for that purpose in the Terms
Agreement, or if sent to the Company, shall be mailed, delivered or
telegraphed and confirmed to the Company at One Christina Centre, 301 North
Walnut Street, Wilmington, Delaware 19801, Attention of the President.
Notices to any Underwriter pursuant to Section 6 hereof shall be mailed,
delivered or telegraphed and confirmed to such Underwriter's address furnished
to the Company in writing for the purpose of communications hereunder. 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.
11. Parties. This Agreement shall inure to the benefit of and be
binding upon the Company and the Underwriters and their respective successors
and the controlling persons, officers and directors referred to in Section 6
hereof, and no other person shall have any right or obligation hereunder.
In all dealings with the Company under this Agreement, you shall act on
behalf of each of the several Underwriters, and any action under this
Agreement taken by you or by any one of you designated in the Terms Agreement
will be binding upon all the Underwriters.
12. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
13. Counterparts. The Terms Agreement may be executed by one or more
of you and the Company in one or more counterparts, each of which shall
constitute an original and all of which taken together shall constitute one
and the same Agreement.
-------------------------------
14
EXHIBIT I
AMERICAN EXPRESS CREDIT CORPORATION
[Insert specific title of securities*]
DELAYED DELIVERY CONTRACT
[Insert date of initial public offering]*
American Express Credit Corporation
c/o*
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, insertas of the date hereof, for
delivery on , 19 ("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:
Delivery Date Principal Amount
.........................
...............................
.........................
...............................
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities which 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
as otherwise specified in the Terms Agreement) at the office of 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 by written or telegraphic
communication addressed 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.
--------
* To be completed when the Terms Agreement is executed by the parties thereto.
1
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.
This contract shall be governed by, and construed in accordance with,
the laws of the State of New York.
Very truly yours,
.........................................
(Name of Purchaser)
By.......................................
.........................................
(Title of Signatory)
.........................................
.........................................
(Address of Purchaser)
Accepted, as of the above date.
American Express Credit Corporation
By.............................................
(Title of Signatory)
2
EXHIBIT II
(1) They are independent public accountants with respect to the
Company and its subsidiaries within the meaning of the Act and the Rules and
Regulations and the answer to Item 10 of Form S-3 of the Registration
Statement is correct insofar as it relates to them.
(2) In their opinion, the financial statements examined by them and
incorporated by reference in the Registration Statement and Prospectus comply
as to form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the published
rules and regulations thereunder.
Include the following clauses modified appropriated in light of each of
the documents incorporated by reference in the Prospectus and any interim
results contained in the Prospectus.
(3) On the basis of procedures referred to in such letter, including a
reading of the latest available interim financial statements of the Company
and inquiries of officials of the Company responsible for financial and
accounting matters, nothing caused them to believe that:
[If incorporated Annual Report on Form 10-K contains unaudited
financial information derived from audited financial statements (e.g.,
unaudited five or ten year summaries of financial information), insert-
(A) the unaudited information with respect to the results of operations
[and financial position] for [and at the end of] the years ended
, 19 , included [or incorporated by reference] in the Company's
Annual Report on Form l0-K for the year ended , 19 does not comply
as to form in all material respects with the applicable accounting
requirements of the Exchange Act and the published rules and regulations
thereunder, or does not agree with the corresponding amounts in the
audited financial statements for the years then ended included [or
incorporated by reference] in the Company's Annual Reports on Form l0-K
for the years ended 19 and , 19 ; or]
[If Prospectus includes unaudited information derived from audited
financial statements, insert-(B) the unaudited information with respect
to the results of operations [and financial position] for [and at the end
of] the years ended , 19 , included in the Prospectus
under the caption " " does not agree with the corresponding
amounts in the audited financial statements for the years then ended
included [or incorporated by reference] in the Company's Annual Reports on
Form l0-K for the years ended , 19 , and , 19
or
[If a Quarterly Report on Form l0-Q is incorporated by reference in
the Prospectus, insert-(C) the unaudited financial statements included in
the Company's Quarterly Report[s] on Form 10-Q for the quarter[s] ended
, 19 ,] [and] [ , 19 ] [and] [ , 19 ]
[ respectively], do not comply as to form in all material respects with
the applicable accounting requirements of the Exchange Act and the
published rules and regulations thereunder or are not stated on a basis
substantially consistent with that of the audited financial statements
included in the Company's Annual Report on Form 10-K for the year ended
, 19 ; or]
[If unaudited interim financial information is included in the
Prospectus and is derived from unaudited financial information included in
a Quarterly Report on Form 10-Q referred to in (C) above, insert-(D) the
unaudited information with respect to the results of operations [and
financial position] for [and at the end of] the months ended , 19 and
, 19 , included in the Prospectus under the caption " "
does not agree with the corresponding amounts in the unaudited financial
statements referred to in Subsection (C), which were not included in the
Prospectus but from which such unaudited information included in the
Prospectus was derived, or was not determined on a basis substantially
consistent with that of the corresponding amounts in the audited financial
1
statements included in the Company's Annual Report on Form l0-K for the
year ended , 19 or]
[If unaudited interim "capsule" information is included in the
Prospectus but is not derived from unaudited financial information
included or incorporated by reference in any incorporated document,
insert-(E) the unaudited net income [Insert other applicable items] amount
for the month periods ended [Insert dates] included in the
Prospectus were not determined on a basis substantially consistent with
the corresponding amounts in the audited financial statements included [or
incorporated by reference] in the Company's Annual Report on Form l0-K for
the year ended , 19 , and do not agree with the corresponding
amounts in the unaudited financial statements for such periods which were
not included in the Prospectus but from which such amounts were derived
and that such unaudited financial statements are not fairly presented in
conformity with generally accepted accounting principles applied on a
basis substantially consistent with that of the audited financial
statements included [or incorporated by reference] in the Prospectus; or]
(F) at the date of the latest available interim statement of
consolidated financial position of Company and at a subsequent specified
date not more than five days prior to the date of such letter, there was
any change in the capital stock or increase in total short-term or total
long-term debt of the Company and its subsidiaries or any decrease in the
ratio of earnings to fixed charges of the Company and its subsidiaries, in
its accounts receivable or in its consolidated net assets as compared with
amount shown in the consolidated balance sheet as of
, 19 included [or incorporated by reference] in the Prospectus; or
(G) for the period from [Insert date of latest statement of income
included or incorporated reference in the Prospectus] to the date of the
latest available interim consolidated statement of income of the Company
and its subsidiaries and to a subsequent specified date not more than five
days prior to the date of such letter, there were any decreases, as
compared with the corresponding period of the previous year
[If appropriate, insert-and with the period of corresponding length
ended [Insert date of latest income statement included or incorporated by
reference in the Prospectus]], consolidated total revenue or consolidated
net income, except in all cases for changes or decreases which the
Prospectus discloses have occurred or may occur or as may be set forth in
such letter.
4. In addition to their examination referred to in their report[s]
included [incorporated by reference] in the Registration Statement and
Prospectus and the procedures referred to in (3) above, they have carried out
certain other specified procedures, not constituting an audit, with respect to
the dollar amounts, percentages and other financial information (in each case
to the extent that such dollar amounts, percentages and other financial
information, either directly or by analysis or computation are derived from
the general accounting records of the Company and its subsidiaries) which are
included [or incorporated by reference] in the Prospectus and appear in the
Prospectus [or incorporated documents] under the caption "
", and nothing caused them to believe that such dollar amounts, percentages
and financial information were not in agreement with the general accounting
records of the Company and its subsidiaries.
2
FORMS OF TERMS AGREEMENT
(Debt Securities)
American Express Credit Corporation
One Christina Street
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 the list attached
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 , 19 to the Closing Date. The Closing Date
shall be , 19 at 10:00 A.M. at the offices of .
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 dated September 1, 1995 (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 4(h) of the Basic Provisions, the Company's
agreement to reimburse the Underwriters for expenses incurred in connection
with the matters referred to in Section 4(d) 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 ,
19 , 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
, 19 , to purchase the Securities on the terms set
forth therein."
Very truly yours,
By________________________
Title:
Address:
Accepted:
American Express Credit Corporation
By__________________________________
Title:
[Attached Schedule of Underwriters]
2
Exhibit 1(b)
AMERICAN EXPRESS CREDIT CORPORATION
DEBT SECURITIES AND WARRANTS TO PURCHASE DEBT SECURITIES
UNDERWRITING AGREEMENT BASIC PROVISIONS
September 1, 1995
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
("Debt Securities"), and warrants ("Warrants") to purchase certain of its
other debt securities ("Warrant Debt Securities"), which Debt Securities and
Warrants are registered under the registration statement referred to in
Section 2(a) hereof. The Debt Securities, Warrants and Warrant Debt
Securities are hereinafter referred to collectively as the "Securities." The
Debt Securities and Warrant Debt Securities may have varying designations,
denominations, currencies, interest rates and payment dates, maturities,
redemption provisions and selling prices and the Warrants may have varying
exercise prices and expiration dates. The basic provisions set forth herein
are intended to be incorporated by reference in a terms agreement of the type
referred to in Section 1 hereof relating to the series of Debt Securities and
Warrants to be issued and sold by the Company pursuant thereto (collectively,
the "Underwritten Securities") to the several underwriters named therein (the
"Underwriters"). The Debt Securities and Warrant Debt Securities will be
issued under an indenture (the "Indenture"), dated as of September 1, 1987,
between the Company and BankAmerica National Trust Company (as successor to
Security Pacific National Trust Company (New York)), as trustee (such trust
company, or such other trustee as may be named for the Debt Securities or
Warrant Debt Securities, being hereinafter referred to as the "Trustee"). The
Warrants are to be issued pursuant to the provisions of a Warrant Agreement
(the "Warrant Agreement") between the Company and the Warrant Agent named in
the Terms Agreement referred to below (the "Warrant Agent"). The Terms
Agreement relating to the Securities (the "Terms Agreement"), together with
the provisions hereof incorporated therein by reference, is herein referred to
as this "Agreement." If the Underwriters consist only of the firm or firms
referred to in the Terms Agreement as Representative or Representatives, then
the terms "Underwriters" and "Representatives," as used herein, shall each be
deemed to refer to such firm or firms.
1. Terms Agreement. The obligation of the Underwriters to purchase,
and the Company to sell, the Underwritten Securities is evidenced by the Terms
Agreement delivered at the time the Company determines to sell the
Underwritten Securities. The Terms Agreement specifies the firm or firms
which will be Underwriters, the principal amount of the Underwritten
Securities to be purchased by each Underwriter, the purchase price to be paid
by the Underwriters for the Underwritten Securities, the public offering
price, if any, of the Underwritten Securities, whether the Underwriters are
authorized to solicit institutional investors to purchase Underwritten
Securities pursuant to Delayed Delivery Contracts, certain terms thereof and
the Underwriters' compensation therefor and any terms of the Underwritten
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
1
details of the terms of the offering that should be reflected in a
post-effective amendment to the Registration Statement or the Prospectus
Supplement (each as hereinafter defined).
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement on Form S-3, including a preliminary
prospectus, relating to the Securities has been carefully prepared by the
Company in conformity with the requirements of the Securities Act of 1933,
as amended (the "Act"), the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the rules and regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the "Commission")
thereunder: such registration statement has been filed with the Commission
and has become effective. Such registration statement and prospectus may
have been amended or supplemented from time to time prior to the date of
this Agreement; and such amendment to the Registration Statement was so
prepared and filed and any such amendment has become effective. A
prospectus supplement (the "Prospectus Supplement"), including a
prospectus, relating to the Underwritten Securities has been so prepared.
The Prospectus Supplement, and if not previously filed, such prospectus,
will be filed pursuant to Rule 424 under the Act. Copies of such
registration statement and prospectus, any such amendment or supplement,
the Prospectus Supplement and all documents incorporated by reference
therein which were filed with the Commission on or prior to the date of
the Terms Agreement (including one fully executed copy of the registration
statement and of each amendment thereto for counsel for the Underwriters)
have been delivered to you. Such registration statement and prospectus,
as amended or supplemented to the date of the Terms Agreement and as
supplemented by the Prospectus Supplement are herein referred to as the
"Registration Statement" and the "Prospectus", respectively. Any
reference herein to the Registration Statement or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein which were filed with the Commission on or prior to the date of
the Terms Agreement and any reference to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement or the Prospectus
shall be deemed to refer to and include the filing of any document with
the Commission deemed to be incorporated by reference therein after the
date of the Terms Agreement.
(b) The Registration Statement, at the time it became effective,
any post-effective amendment thereto, at the time it became effective, the
Registration Statement and the Prospectus, as of the date of the Terms
Agreement and at the Closing Date (as hereinafter defined), and any
amendment or supplement thereto, conformed or will conform in all material
respects to the requirements of the Act, the Trust Indenture Act and the
Rules and Regulations; and no such document included or will include an
untrue statement of a material fact or omitted or will omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; except that the foregoing shall not
apply to (i) statements in or omissions from any such document in reliance
upon, and in conformity with, written information furnished to the Company
by or on behalf of any Underwriter through you, specifically for use in
the preparation thereof or (ii) that part of the Registration Statement
which shall constitute the Statement of Eligibility and Qualification
(Form T-1) under the Trust Indenture Act of the Trustee.
(c) The documents incorporated by reference in the Registration
Statement or the Prospectus, when they became effective or were filed with
the Commission, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), conformed, and any documents so
filed and incorporated by reference after the date of the Terms Agreement
will, when they are filed with the Commission, conform, in all material
respects to the requirements of the Act and the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder.
2
(d) The annual consolidated financial statement and related
schedules of the Company incorporated by reference in the Registration
Statement and Prospectus fairly present the financial condition of the
Company and its consolidated subsidiaries as of the dates indicated and
the results of operations, changes in shareholder's equity and statements
of cash flows for the periods therein specified; and said financial
statements have been prepared in accordance with generally accepted
principles of accounting, applied on a consistent basis throughout the
periods involved (except for changes in accounting principles or the
application thereof with which Ernst & Young LLP or other independent
public accountants shall have concurred). Ernst & Young LLP, who have
examined such financial statements, as set forth in their reports
incorporated by reference in the Registration Statement and the
Prospectus, are independent public accountants within the meaning of the
Act and the Rules and Regulations; and the supporting schedules included
or incorporated in the Registration Statement and Prospectus fairly
present the information required to be stated therein. The unaudited
financial statements of the Company, if any, included in the Prospectus
and the Registration Statement and the related notes are true, complete
and correct, subject to normally recurring changes resulting from year-end
audit adjustments, and prepared in accordance with the instructions to
Form 10-Q.
(e) The Indenture, the Warrant Agreement and the Securities have
been duly authorized; the Indenture has been duly qualified under the
Trust Indenture Act; the Indenture and the Warrant Agreement, when duly
executed and delivered, the Debt Securities, when duly executed,
authenticated, issued and delivered as contemplated hereby, by the
Indenture, and by the Delayed Delivery Contracts (as hereinafter defined),
if any, the Warrants when duly executed, issued and delivered as
contemplated hereby, by the Warrant Agreement and by the Delayed Delivery
Contracts, if any, and the Warrant Debt Securities issuable upon exercise
of the Warrants, when duly issued in accordance with the terms of such
Warrants and the Warrant Agreement, 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, the
Indenture and the Warrant Agreement conform in all material respects to
the description thereof in the Prospectus.
(f) Subsequent to the respective dates as of which information
contained in the Registration Statement and the Prospectus is given,
except as contained in or contemplated by the Registration Statement and
the Prospectus, (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 which are material in relation to the
Company and its subsidiaries taken as a whole.
(g) Each of the Company and its subsidiaries is duly incorporated
and in good standing under the laws of the jurisdiction of its
organization; each of the Company and its subsidiaries is duly qualified
to do business as a foreign corporation and is in good standing in all the
jurisdictions in which, in the opinion of counsel for the Company, such
qualification is required or, if not so qualified, the failure so to
qualify would not have a material adverse effect on the business or
financial condition of the Company and its subsidiaries taken as a whole;
each of the Company and its subsidiaries has full power and authority to
own its properties and conduct its business.
(h) Neither the issuance or sale of the Underwritten Securities,
nor the consummation of any other of the transactions contemplated herein
or in the Warrant Agreement (including without limitation, the
3
issuance of Warrant Debt Securities upon the exercise of the Warrants) or
in any Delayed Delivery Contracts, nor the fulfillment of the terms hereof
or thereof, will conflict with, result in a breach of or constitute a
default under the terms of any indenture or other agreement or instrument
to which the Company or any of its subsidiaries is a party or by which any
of them is bound, or, to the best of the knowledge of the Company, any
order or regulation applicable to the Company or any of its subsidiaries
of any court, regulatory body, administrative agency or governmental body
having jurisdiction over the Company or any of its subsidiaries, except
where any such conflict, breach or default would not be material to the
Company and its subsidiaries taken as a whole.
(i) The Company knows of no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party or of
which any property of the Company or any of its subsidiaries is the
subject, other than litigation referred to in material contained in the
Registration Statement or litigation which, if determined adversely to the
Company or any of its subsidiaries, would not have a material adverse
effect upon the condition (financial or other) or the earnings of the
Company and its subsidiaries taken as a whole; and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(j) Neither the Company nor any of its subsidiaries is in default
in the payment of principal of or interest on any indebtedness or in the
performance of any covenant, term or condition contained in any instrument
evidencing any such indebtedness or under which it was created, the effect
of which default would be material to the Company and its subsidiaries
taken as a whole, and at the Closing Date hereinafter mentioned there
shall not exist any Event of Default (as defined in the Indenture) or any
condition, event or act which, with notice or lapse of time or both, would
constitute such an Event of Default.
(k) The issuance and sale of the Underwritten Securities and the
compliance by the Company and its subsidiaries with all of the provisions
of this Agreement, the Indenture, the Warrant Agreement, any Delayed
Delivery Contracts and the Securities, will not conflict with or result in
a breach of any of the provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any of the property or assets of, the Company or any of its
subsidiaries pursuant to the terms of any agreement or instrument to which
the Company or any of its subsidiaries is now or on the Closing Date will
be a party, and 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 Company, a New York corporation ("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
which 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
which is a party to any of the Agreements of Sale and Purchase is now or
on the Closing Date hereinafter mentioned will be a party, except in the
case of (A) 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 which 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.
4
(l) No consent, approval, authorization or order of, or filing
with, any court or governmental agency, authority or body is required for
the consummation of the transactions contemplated by this Agreement, any
Delayed Delivery Contract, the Indenture, the Warrant Agreement or the
Agreements of Sale and Purchase in connection with the issuance or sale of
the Securities, except such as have been obtained under the Act and the
Trust Indenture Act and as may be required or obtained under the blue sky
laws of any jurisdiction; and the Company has full power and authority to
authorize, issue and sell the Securities as contemplated by this
Agreement, the Warrant Agreement and any Delayed Delivery Contracts.
(m) The Agreements of Sale and Purchase conform in all material
respects to the descriptions thereof included in the Registration
Statement and the Prospectus.
(n) 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 free and clear of all liens and encumbrances, and all of the
outstanding shares of capital stock of such subsidiary have been duly and
validly issued and are fully paid and non-assessable and owned by American
Express free and clear of all liens and encumbrances.
(o) (i) 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 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.
(ii) 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 be material to the Company and its subsidiaries taken as a
whole.
(p) The Company has not taken and will not take, directly or
indirectly, any action designed to or which has constituted or which 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.
3. Purchase, Sale and Delivery of Securities. If so authorized in the
Terms Agreement, the Underwriters may solicit offers from investors of the
types set forth in the Prospectus to purchase Underwritten Securities from the
Company pursuant to delayed delivery contracts ("Delayed Delivery Contracts").
Such contracts shall be substantially in the form of Exhibit I hereto but with
such changes therein as the Company may approve. Underwritten 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
5
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 10:00 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 which 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.
The amount of Underwritten Securities to be purchased by each
Underwriter as set forth in the Terms Agreement shall be reduced by an amount
which shall bear the same proportion to the total amount of Contract
Securities as the amount of Underwritten Securities set forth opposite the
name of such Underwriter bears to the total amount of Underwritten 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 Underwritten Securities
to be purchased by all Underwriters shall be the total amount of Underwritten
Securities set forth in the Terms Agreement less the aggregate amount of
Contract Securities.
The Underwritten Securities to be purchased by the Underwriters will be
delivered by the Company to you for the accounts of the several Underwriters
at the office specified in the Terms Agreement against payment of the purchase
price therefor by certified or official bank check or checks in New York
Clearing House funds (or as otherwise specified in the Terms Agreement)
payable to the order of the Company on the date and at the times specified in
the Terms Agreement, or at such other time not later than eight full business
days thereafter as you and the Company determine, such time being herein
referred to as the "Closing Date." The Underwritten Securities will be
prepared in definitive form and in such authorized denominations and
registered in such names as you may require upon at least two business days'
prior notice to the Company and will be made available for checking and
packaging at the office at which they are to be delivered on the Closing Date
(or such other office as may be specified for that purpose in the Terms
Agreement) at least one business day prior to the Closing Date.
It is understood that you, acting individually and not in a
representative capacity, may (but shall not be obligated to) make payment to
the Company on behalf of any other Underwriter for Underwritten Securities to
be purchased by such Underwriter. Any such payment by you shall not relieve
any such Underwriter of any of its obligations hereunder.
The Company will pay to you on the Closing Date for the accounts of the
Underwriters any fee, commission or other compensation specified in the Terms
Agreement. Such payment will be made by certified or official bank check in
New York Clearing House funds.
4. Covenants. The Company covenants and agrees with each Underwriter
that:
(a) The Company will cause the Prospectus Supplement to be filed
pursuant to Rule 424 under the Act and will notify you promptly of such
filing. During the period in which a prospectus relating to the
Underwritten Securities is required to be delivered under the Act, the
Company will notify you promptly of the time when any amendment to the
Registration Statement has become effective or any subsequent supplement to
the Prospectus has been filed and of any request by the Commission for any
amendment of or supplement to the Registration Statement or the Prospectus
or for additional information; it will prepare and file with the
Commission, promptly upon your request, any amendments or supplements to
the Registration Statement or the Prospectus which, in your opinion, may
be necessary or advisable in connection with the distribution of the
Underwritten Securities by the Underwriters; it will file no amendment or
supplement to the Registration Statement or the Prospectus (other than any
prospectus supplement relating to the offering of securities other than
the Securities registered under the Registration
6
Statement or any document required to be filed under the Exchange Act
which upon filing is deemed to be incorporated by reference therein) to
which you shall reasonably object by notice to the Company after having
been furnished a copy a reasonable time prior to the filing; and it will
furnish to you at or prior to the filing thereof a copy of any such
prospectus supplement or any document which upon filing is deemed to be
incorporated by reference in the Registration Statement or Prospectus.
(b) The Company will advise you, promptly after it shall receive
notice or obtain knowledge thereof, of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement,
of the suspension of the qualification of the Underwritten Securities for
offering or sale in any jurisdiction, or of the initiation or threatening
of any proceeding for any such purpose; and it will promptly use its best
efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such a stop order should be issued.
(c) Within the time during which a prospectus relating to the
Underwritten Securities is required to be delivered under the Act, the
Company will comply as far as it is able with all requirements imposed
upon it by the Act, as now and hereafter amended, and by the Rules and
Regulations, as from time to time in force, so far as necessary to permit
the continuance of sales of or dealings in the Underwritten Securities as
contemplated by the provisions hereof and the Prospectus. If during such
period any event occurs as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances then existing, not misleading,
or if during such period it is necessary to amend or supplement the
Registration Statement or the Prospectus to comply with the Act, the
Company will promptly notify you and will amend or supplement the
Registration Statement or the Prospectus (at the expense of the Company)
so as to correct such statement or omission or effect such compliance.
(d) The Company will use its best efforts to qualify the
Underwritten Securities for sale under the securities laws of such
jurisdictions as you reasonably designate, to maintain such qualifications
in effect so long as required for the distribution of the Underwritten
Securities and to arrange for the determination of the legality of the
Underwritten Securities for purchase by institutional investors, except
that the Company shall not be required in connection therewith to qualify
to do business in any jurisdiction where it is not now so qualified or to
take any action which would subject it to general or unlimited service of
process in any jurisdiction where it is not now so subject.
(e) The Company will furnish to the Underwriters copies of the
Registration Statement and the Prospectus (including all documents
incorporated by reference therein), and all amendments and supplements to
the Registration Statement or the Prospectus which are filed with the
Commission during the period in which a prospectus relating to the
Underwritten Securities is required to be delivered under the Act
(including all documents filed with the Commission during such period
which are deemed to be incorporated by reference therein), in each case in
such quantities as you may from time to time reasonably request.
(f) So long as any of the Securities are outstanding, the Company
agrees to furnish to you (i) as soon as available, copies of all reports
to the Company's security holders generally (other than reports made
solely to American Express) and (ii) all reports and financial statements
filed by or on behalf of the Company with the Commission or any national
securities exchange.
(g) The Company will make generally available to its security
holders and to you as soon as practicable, but in any event not later than
15 months after the end of the Company's current fiscal quarter, an
earning statement (which need not be audited) covering a 12-month period
beginning after the
7
date upon which the Prospectus Supplement is filed pursuant to Rule 424
under the Act which shall satisfy the provisions of Section 11(a) of the
Act.
(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 Terms
Agreement) incurred by them in connection with the matters referred to in
Section 4(d) hereof and the preparation of memoranda relating thereto, for
any filing fee of the National Association of Securities Dealers, Inc.
relating to the Securities, including the Underwritten Securities, and for
any fees charged by investment rating agencies for rating the Securities,
including the Underwritten Securities. If the sale of Underwritten
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 Underwritten Securities.
(i) If so stated in the Terms Agreement, the Company will use its
best efforts to cause an application for the listing of the Underwritten
Securities on the New York Stock Exchange or such other securities
exchange specified in the Terms Agreement and for the registration of the
Underwritten Securities under the Exchange Act to become effective.
(j) The Company will not, without your consent, offer or sell, or
publicly announce its intention to 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) during the period
beginning the date of the Terms Agreement and ending the business day
following the Closing Date.
5. Conditions of the Underwriters' Obligations. The obligations of
the Underwriters to purchase and pay for the Underwritten Securities as
provided herein shall be subject to the accuracy in all material respects, as
of the date of the Terms Agreement and the Closing Date (as if made at the
Closing Date), of the representations and warranties of the Company herein, to
the performance by the Company of its obligations hereunder, and to the
following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall
have been instituted or, to the knowledge of the Company or any
Underwriter, threatened by the Commission, and any request of the
Commission for additional information (to be included in the Registration
Statement or the Prospectus or otherwise) shall have been complied with to
your satisfaction.
(b) No Underwriter shall have advised the Company that the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, contains an untrue statement of fact which in your opinion is
material, or omits to state a fact which in your opinion is material and
is required to be stated therein or is necessary to make the statements
therein not misleading.
8
(c) Except as contemplated in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there shall not have been any material
change, on a consolidated basis, in the capital stock, short-term debt,
long-term debt, ratio of earnings to fixed changes, accounts receivable,
total assets, total revenue or total net income of the Company and its
subsidiaries, in the condition (financial or other), or in the earnings,
affairs or business prospects of the Company and its subsidiaries, taken
as a whole, whether or not arising in the ordinary course of business, or
any change in the rating assigned by any nationally recognized securities
rating agency to any debt securities of the Company which, in your
judgment, makes it impractical or inadvisable to offer or deliver the
Underwritten Securities on the terms and in the manner contemplated in the
Prospectus.
(d) The Company shall have furnished you the opinion of Counsel to
the Company, dated the Closing Date, to the effect that:
(i) The Company has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of the
State of Delaware, and is duly qualified to do business as a foreign
corporation and in good standing in each State or other jurisdiction in
which such qualification is required 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;
(ii) The Indenture has been duly authorized, executed and
delivered by the Company and has been duly qualified under the Trust
Indenture Act, the Warrant Agreement has been duly authorized, executed,
and delivered by the Company, and each of the Indenture and Warrant
Agreement constitutes a legal, valid and binding instrument enforceable
against the Company in accordance with its terms, subject to applicable
bankruptcy, reorganization, insolvency, 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;
(iii) The Underwritten Securities have been validly authorized;
the Debt Securities, when duly executed by the proper officers of the
Company, duly authenticated by the Trustee and delivered as contemplated
hereby and by the Indenture (and, in the case of any Contract
Securities, as contemplated by the Delayed Delivery Contracts with
respect thereto), and the Warrants, when duly executed by the proper
officers of the Company, duly countersigned by the Warrant Agent and
delivered as contemplated hereby and by the Warrant Agreement, will be
validly issued and outstanding obligations of the Company enforceable in
accordance with their terms and entitled to the benefits of the
Indenture subject to applicable bankruptcy, reorganization, insolvency,
moratorium or 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
conform in all material respects to the descriptions thereof in the
Prospectus;
(iv) The Warrant Debt Securities issuable on the exercise of the
Warrants, when issued upon such exercise, duly executed, authenticated
and delivered as contemplated hereby, by the Indenture and by the
Warrant Agreement will be validly issued and outstanding obligations of
the Company enforceable in accordance with their terms and entitled to
the benefits of the Indenture subject, as to enforcement of remedies to
applicable bankruptcy, reorganization, insolvency, moratorium or other
similar laws affecting creditors' rights generally;
(v) The Indenture and Warrant Agreement conform in all material
respects to the descriptions thereof in the Prospectus;
9
(vi) The Registration Statement has become effective under the
Act and, to the best of the knowledge of such counsel, no stop order
suspending the effectiveness thereof has been issued and no proceedings
for that purpose have been instituted or are pending or contemplated
under the Act, and the Registration Statement, the Prospectus, and each
amendment or supplement thereto comply as to form in all material
respects with the requirements of the Act, the Exchange Act and the
Trust Indenture Act and the applicable rules and regulations thereunder
(except that such counsel need express no opinion as to the financial
statements or other data of a financial or statistical nature); such
counsel has no reason to believe that either the Registration Statement
or the Prospectus or any such amendment or supplement contains any
untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading (except as aforesaid); and the statements made in
the Prospectus under the headings "Description of Debt Securities" and
"Description of Warrants" and any similar headings in the Prospectus
Supplement, insofar as they purport to summarize provisions of documents
specifically referred to therein, fairly present the information called
for with respect thereto by the registration statement form;
(vii) This Agreement and any Delayed Delivery Contracts have
been duly authorized, executed and delivered by the Company;
(viii) No consent, approval, authorization or order of any court
or governmental agency, authority or body, to the best knowledge of such
counsel, is required for the consummation by the Company of the
transactions contemplated herein, in any Delayed Delivery Contract, in
the Indenture, in the Warrant Agreement or in the Agreements of Sale and
Purchase, except such as have been obtained under the Act and the Trust
Indenture Act and such as may be required under the securities or blue
sky laws of any jurisdiction in connection with the sale of the
Underwritten Securities;
(ix) All outstanding shares of common stock of the Company are
owned by a wholly owned subsidiary of American Express free and clear of
any liens or encumbrances, and all outstanding shares of common stock of
such subsidiary are owned by American Express free and clear of any
liens or encumbrances;
(x) The Agreements of Sale and Purchase to which the Company is
a party have been duly authorized, executed and delivered by each party
thereto, and constitute valid and legally binding instruments
enforceable in accordance with their respective terms subject to
applicable bankruptcy, reorganization, insolvency, moratorium or 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 to the best of the
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 is a party; and
(xi) The consummation of the transactions contemplated herein,
in the Indenture, in the Warrant Agreement or in any Delayed Delivery
Contract will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under, any statute regulating
the business or operations of the Company, any indenture, mortgage, deed
of trust, note agreement or other agreement or instrument known to such
counsel to which the Company is a party or by which it is bound or to
which any of the property of the Company is subject, the Company's
charter or by-laws, or any order, rule or regulation regulating the
business or operations of the Company known to such counsel of any court
or governmental agency or body having jurisdiction over the Company or
any of its properties, except where any such breach, violation or
default would not be material to the Company and its subsidiaries taken
as a whole.
10
(e) You shall have received from your counsel, Simpson Thacher &
Bartlett, such opinion or opinions dated the Closing Date with respect to
the issuance and sale of the Underwritten Securities, the Registration
Statement, the Prospectus and other related matters as you 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.
(f) The Company shall have furnished to you a certificate of the
Chairman of the Board of Directors, President or any Vice President and of
the Treasurer or an Assistant Treasurer of the Company, dated the Closing
Date, to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Prospectus and this Agreement and
that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date, and
the Company has complied in all material respects with all the
agreements and satisfied all the conditions on its part to be performed
or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for that
purpose have been instituted or, to their knowledge, threatened; and
(iii) the Registration Statement, including any supplements or
amendments thereto, does not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading; the Prospectus,
including any supplements or amendments thereto, does not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; and since the effective date of the Registration
Statement there has not occurred any event concerning which information
is required to be contained in an amended or supplemented Prospectus
concerning which such information is not contained therein.
(g) You shall have received on the Closing Date a letter from
Ernst & Young LLP, dated the Closing Date, to the effect set forth in
Exhibit II hereto, with respect to the Registration Statement and the
Prospectus at the time of the Terms Agreement.
(h) Prior to the Closing Date, the Company shall have furnished to
you such further information, certificates and documents as you may
reasonably request.
6. Indemnification and Contribution. (a) The Company will indemnify
and hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
the registration statement when it became effective, or in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus supplement, 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 will reimburse each Underwriter for any legal or other expenses reasonably
incurred by it in connection with investigating or defending against such
loss, claim, damage, liability or action; provided, however, that (i) the
Company shall 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) an 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 you, specifically
for use in the preparation thereof, or (y) that part of the Registration
Statement which shall
11
constitute the Statement of Eligibility and Qualification (Form T-l) under
the Trust Indenture Act of the Trustee, and (ii) such indemnity with respect
to a preliminary prospectus supplement or other prospectus shall not inure to
the benefit of any Underwriter (or any person controlling such Underwriter) to
the extent that any such loss, claim, damage or liability of such Underwriter
results from the fact that such Underwriter sold Securities to a person as to
whom it shall be established that there was not sent or given, at or prior to
the written confirmation of such sale, a copy of the Prospectus in any case
where such delivery is required by the Act if the Company has previously
furnished copies thereof to such Underwriter and the loss, claim, damage or
liability of such Underwriter results from an untrue statement or omission of
a material fact contained in such preliminary prospectus supplement or other
prospectus which was corrected in the Prospectus prepared by the Company for
use in connection with the Securities, unless such failure to deliver the
Prospectus prepared by the Company for use in connection with the Securities
was a result of noncompliance by the Company with Section 4(e) hereof.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in any part of the registration statement when it became effective,
or in the Registration Statement, the Prospectus or any amendment or
supplement thereto, or any related preliminary prospectus supplement, 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, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made therein in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any
Underwriter through you, specifically for use in the preparation thereof; and
will reimburse the Company for any legal or other expenses reasonably incurred
by the Company in connection with investigating or defending against any such
loss, claim, damage, liability or action. This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have. Unless
otherwise provided in the Terms Agreement, the statements set forth in the
last paragraph of the cover page of the Prospectus Supplement and under the
heading "Underwriting" in the Prospectus Supplement constitute the only
information furnished in writing by or on behalf of the several Underwriters
for inclusion in the Registration Statement and the Prospectus, as the case
may be, and you, as the Representatives, confirm that such statements are
correct.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have
to any indemnified party otherwise than under such subsection. In case any
such action shall be brought against any indemnified party, and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate in, and, to the extent that it shall
wish, jointly with any other indemnifying party, similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnified party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation.
(d) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount
12
paid or payable by such indemnified party as a result of the losses, claims,
damages or liabilities referred to in subsection (a) or (b) above, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other from the offering of
the Underwritten Securities, or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering of the
Underwritten Securities (before deducting expenses) received by the Company
bear to the total compensation or profit (before deducting expenses) received
or realized by the Underwriters from the purchase and resale, or underwriting,
of the Underwritten Securities. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or the
Underwriters and the parties' relative intent, 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 contributions pursuant to this subsection (d) were to be
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to in the first
sentence of this subsection (d). The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim (which shall be limited as
provided in subsection (c) above if the indemnifying party has assumed the
defense of any such action in accordance with the provisions thereof) which is
the subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Underwritten
Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. 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. The Underwriters' obligations in this subsection (d) to
contribute shall be several in proportion to their respective underwriting
obligations and not joint. Promptly after receipt by an indemnified party
under this subsection (d) of notice of the commencement of any action against
such party in respect of which a claim for contribution may be made against an
indemnifying party under this subsection (d), such indemnified party shall
notify the indemnifying party in writing of the commencement thereof if the
notice specified in subsection (c) above has not been given with respect to
such action; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party
otherwise than under this subsection (d).
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability which 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 6 shall be in
addition to any liability which 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.
13
7. Representations and Agreements to Survive Delivery. All
representations, warranties, and agreements of the Company herein or in
certificates delivered pursuant hereto, and the agreements of the several
Underwriters contained in Section 6 hereof, shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of any
Underwriter or any controlling persons, or the Company or any of its officers,
directors or any controlling persons, and shall survive delivery of and
payment for the Underwritten Securities.
8. Substitution of Underwriters. (a) If any Underwriter or
Underwriters shall fail to take up and pay for the principal amount of Debt
Securities or Warrants agreed by such Underwriter or Underwriters to be
purchased hereunder, upon tender of such Debt Securities or Warrants, as the
case may be, in accordance with the terms hereof, and the principal amount of
Debt Securities or the number of Warrants not purchased does not aggregate
more than 10% of the total principal amount of the Debt Securities or 10% of
the total number of Warrants, as the case may be, set forth in the Terms
Agreement, the remaining Underwriters shall be obligated to take up and pay
for (in proportion to their respective underwriting obligations hereunder as
set forth in the Terms Agreement, except as may otherwise be determined by
you) the Debt Securities or Warrants, as the case may be, which the
withdrawing or defaulting Underwriters agreed but failed to purchase.
(b) If any Underwriter or Underwriters shall fail to take up and pay
for the principal amount of Debt Securities or Warrants agreed by such
Underwriter or Underwriters to be purchased hereunder, upon tender of such
Debt Securities or Warrants, as the case may be, in accordance with the terms
hereof, and the principal amount of Debt Securities or the number of Warrants
not purchased aggregates more than 10% of the total principal amount of Debt
Securities or 10% of the total number of Warrants, as the case may be, set
forth in the Terms Agreement, and arrangements satisfactory to you and the
Company for the purchase of such Debt Securities or Warrants, as the case may
be, by other persons are not made within 36 hours thereafter, this Agreement
shall terminate. In the event of a default by any Underwriter as set forth in
this Section 8, the Closing Date shall be postponed for such period, not to
exceed seven full business days, as you shall determine in order that the
required changes in the Registration Statement and the Prospectus or in any
other documents or arrangements may be effected. In the event of any such
termination, the Company shall not be under any liability to any Underwriter
(except to the extent provided in Section 4(h) hereof) nor shall any
Underwriter (other than an Underwriter who shall have failed, otherwise than
for some reason permitted under this Agreement, to purchase the principal
amount of Debt Securities or Warrants agreed by such Underwriter to be
purchased under this Agreement) be under any liability to the Company (except
to the extent provided in Section 6 hereof). Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any,
to the Company and any non-defaulting Underwriter for damages occasioned by
its default hereunder.
9. Termination. You shall have the right to terminate this Agreement
by giving notice as hereinafter specified at any time at or prior to the
Closing Date if (i) the Company shall have failed, refused or been unable, at
or prior to the Closing Date, to perform, in any material respect, any
agreement on its part to be performed hereunder, (ii) any other condition of
the Underwriters' obligations is not fulfilled in all material respects, (iii)
trading on the New York Stock Exchange shall have been wholly suspended, (iv)
minimum or maximum prices for trading shall have been fixed, or maximum ranges
for prices for securities shall have been required, on the New York Stock
Exchange by such Exchange or by order of the Commission or any other
governmental authority having jurisdiction, (v) a banking moratorium shall
have been declared by federal or New York authorities, or (vi) an outbreak of
major hostilities in which the United States is involved, a declaration of war
by Congress, any other substantial national or international calamity or any
other event or occurrence of a similar character shall have occurred since the
execution of this Agreement which, in your judgment, makes it impractical or
inadvisable to proceed with the completion of the sale of and payment for the
Underwritten Securities to be purchased by the Underwriters. Any such
termination shall be without
14
liability of any party to any other party except that the provisions of
Section 4(h) and Section 6 shall at all times be effective. If you elect to
terminate this Agreement as provided in this Section, the Company shall be
notified promptly by you by telephone or telegram, confirmed by letter.
10. Notices. All notices or communications hereunder shall be in
writing and if sent to you shall be mailed, delivered or telegraphed and
confirmed to you at your address set forth for that purpose in the Terms
Agreement, or if sent to the Company, shall be mailed, delivered or
telegraphed and confirmed to the Company at One Christina Street, 301 North
Walnut Street, Wilmington, Delaware 19801, Attention of the President.
Notices to any Underwriter pursuant to Section 6 hereof shall be mailed,
delivered or telegraphed and confirmed to such Underwriter's address furnished
to the Company in writing for the purpose of communications hereunder. 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.
11. Parties. This Agreement shall inure to the benefit of and be
binding upon the Company and the Underwriters and their respective successors
and the controlling persons, officers and directors referred to in Section 6
hereof, and no other person shall have any right or obligation hereunder.
In all dealings with the Company under this Agreement, you shall act on
behalf of each of the several Underwriters, and any action under this
Agreement taken by you or by any one of you designated in the Terms Agreement
will be binding upon all the Underwriters.
12. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
13. Counterparts. The Terms Agreement may be executed by one or more
of you and the Company in one or more counterparts, each of which shall
constitute an original and all of which taken together shall constitute one
and the same Agreement.
------------------
15
EXHIBIT I
AMERICAN EXPRESS CREDIT CORPORATION
[Insert specific title of securities*]
DELAYED DELIVERY CONTRACT
[Insert date of initial public offering]*
American Express Credit Corporation
c/o*
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--as of the date hereof,
for delivery on , 19 ("Delivery Date")]
[$].....................
principal amount of the Company's [title of debt securities] ("Debt
Securities") and [number and title of warrants] to purchase debt securities
("Warrants" and, together with the Debt Securities, the "Securities"), offered
by the Company's Prospectus relating thereto, receipt of a copy of which is
hereby acknowledged, at a purchase price for Debt Securities of the principal
amount thereof plus accrued interest, if any, and at a purchase price of $
for each such Warrant and on the further terms and conditions set forth in
this contract.
[If two or more delayed closing, 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:
Delivery Date Principal Amount
................................ ................................
................................ ................................
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities which 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
as otherwise specified in the Terms Agreement) at the office of 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 by written or
telegraphic communication addressed 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.
--------
* To be completed when the Terms Agreement is executed by the parties thereto.
1
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.
This contract shall be governed by, and construed in accordance with,
the laws of the State of New York.
Very truly yours,
................................
(Name of Purchaser)
By..............................
................................
(Title of Signatory)
................................
................................
(Address of Purchaser)
Accepted, as of the above date.
American Express Credit Corporation
By............................................
(Title of Signatory)
2
EXHIBIT II
(1) They are independent public accountants with respect to the Company
and its subsidiaries within the meaning of the Act and the Rules and
Regulations and the answer to Item 10 of Form S-3 of the Registration
Statement is correct insofar as it relates to them.
(2) In their opinion, the financial statements examined by them and
incorporated by reference in the Registration Statement and Prospectus comply
as to form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the published
rules and regulations thereunder.
Include the following clauses modified appropriately in light of each
of the documents incorporated by reference in the Prospectus and any interim
results contained in the Prospectus.
(3) On the basis of procedures referred to in such letter, including a
reading of the latest available interim financial statements of the Company
and inquiries of officials of the Company responsible for financial and
accounting matters, nothing caused them to believe that:
[If incorporated Annual Report on Form 10-K contains unaudited
financial information derived from audited financial statements (e.g.,
unaudited five or ten year summaries of financial information),
insert--(A) the unaudited information with respect to the results of
operations [and financial position] for [and at the end of] the
years ended ,19 , included [or incorporated by reference] in the
Company's Annual Report on Form 10-K for the year ended
19 , does not comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and the published
rules and regulations thereunder, or does not agree with the corresponding
amounts in the audited financial statements for the years then ended
included [or incorporated by reference] in the Company's Annual Reports on
Form 10-K for the years ended 19 , and , 19 ; or]
[If Prospectus includes unaudited information derived from audited
financial statements, insert--(B) the unaudited information with respect
to the results of operations [and financial position] for [and at the end
of] the years ended , 19 , included in the Prospectus under the
caption " " does not agree with the corresponding amounts in
the audited financial statements for the years then ended included [or
incorporated by reference] in the Company's Annual Reports on Form 10-K
for the years ended , 19 , and , 19 ; or]
[If a Quarterly Report on Form 10-Q is incorporated by reference in
the Prospectus, insert--(C) the unaudited financial statements included in
the Company's Quarterly Report[s] on Form 10-Q for the quarter[s] ended
19 , [and] [ ,19 ] [and] [, 19 ]
[, respectively,] do not comply as to form in all material respects with
the applicable accounting requirements of the Exchange Act and the
published rules and regulations thereunder or are not stated on a basis
substantially consistent with that of the audited financial statements
included in the Company's Annual Report on Form 10-K for the year ended
, 19 ; or]
[If unaudited interim financial information is included in the
Prospectus and is derived from unaudited financial information included in
a Quarterly Report on Form 10-Q referred to in (C) above, insert--(D) the
unaudited information with respect to the results of operations [and
financial position] for [and at the end of] the months ended
, 19 and , 19 , included in the Prospectus
under the caption " " does not agree with the corresponding amounts
in the unaudited financial statements referred to in Subsection (C), which
were not included in the Prospectus but from which such unaudited
information included in the Prospectus was derived, or was not determined
on a basis substantially consistent with that of the
1
corresponding amounts in the audited financial statements included in the
Company's Annual Report on Form 10-K for the year ended , 19
; or]
[If unaudited interim "capsule" information is included in the
Prospectus but is not derived from unaudited financial information
included or incorporated by reference in any incorporated document,
insert--(E) the unaudited net income [Insert other applicable items]
amount for the month periods ended [Insert dates] included in the
Prospectus were not determined on a basis substantially consistent with
the corresponding amounts in the audited financial statements included [or
incorporated by reference] in the Company's Annual Report on Form 10-K for
the year ended , 19 , and do not agree with the
corresponding amounts in the unaudited financial statements for such
periods which were not included in the Prospectus but from which such
amounts were derived and that such unaudited financial statements are not
fairly presented in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of the
audited financial statements included [or incorporated by reference] in
the Prospectus; or]
(F) at the date of the latest available interim statement of
consolidated financial position of the Company and at a subsequent
specified date not more than five days prior to the date of such letter,
there was any change in the capital stock or increase in total short-term
or total long-term debt of the Company and its subsidiaries or any
decrease in the ratio of earnings to fixed charges of the Company and its
subsidiaries, in its accounts receivable or in its consolidated net assets
as compared with amounts shown in the consolidated balance sheet as
of , 19 included [or incorporated by reference] in the
Prospectus; or
(G) for the period from [Insert date of latest statement of income
included or incorporated by reference in the Prospectus] to the date of
the latest available income consolidated statement of interim of the
Company and its subsidiaries and to a subsequent specified date not more
than five days prior to the date of such letter, there were any decreases,
as compared with the corresponding period of the previous year [If
appropriate insert--and with the period of corresponding length ended
[Insert date of latest income statement included or incorporated by
reference in the Prospectus]], in consolidated total revenue or
consolidated net income, except in all cases for changes or decreases
which the Prospectus discloses have occurred or may occur or as may be set
forth in such letter.
4. In addition to their examination referred to in their report[s]
included [incorporated by reference] in the Registration Statement and
Prospectus and the procedures referred to in (3) above, they have carried out
certain other specified procedures, not constituting an audit, with respect to
the dollar amounts, percentages and other financial information (in each case
to the extent that such dollar amounts, percentages and other financial
information, either directly or by analysis or computation, are derived from
the general accounting records of the Company and its subsidiaries) which are
included [or incorporated by reference] in the Prospectus and appear in the
Prospectus [or incorporated documents] under the captions " ",
and nothing caused them to believe that such dollar amounts, percentages and
financial information were not in agreement with the general accounting
records of the Company and its subsidiaries.
2
FORM OF TERMS AGREEMENT
(Debt Securities and Warrants)
, 19
American Express Credit Corporation
One Christina Street
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 ("Debt
Securities"), and warrants ("Warrants" to purchase $ aggregate
principal amount of certain of its other debt securities ("Warrant Debt
Securities"). The Debt Securities and Warrants are referred to herein
collectively as the "Underwritten Securities." Subject to the terms and
conditions set forth herein or incorporated by reference herein, the
underwriters named in the list attached hereto (the "Underwriters") offer to
purchase, severally and not jointly, the principal amount of Debt Securities
set forth therein opposite their respective names at __% of the principal
amount thereof, together with accrued interest, if any, thereon from
, 19 to the Closing Date and the number of Warrants set forth
opposite their respective names at a purchase price of $ per Warrant.
The Closing Date shall be , 19 , at 10:00 A.M., at the
offices of .
The Debt Securities shall have the following terms:
Title:
Currency:
Maturity:
Interest Rate:
Interest payment dates:
Redemption provisions:
Additional Terms:
The Warrants shall have the following terms:
Currency:
Exercise Price:
Expiration Date:
Warrant Agent:
Title of Warrant Debt Securities:
Currency of Warrant Debt Securities:
Maturity of Warrant Debt Securities:
Principal amount of Warrant Debt Securities:
Interest rate of Warrant Debt Securities:
Interest payment dates of Warrant Debt Securities:
Redemption provisions of Warrant Debt Securities:
Additional terms of Warrants and Warrant Debt Securities:
(Insert any delayed delivery provisions for Underwritten Securities)
1
All the provisions contained in the document entitled "American Express
Credit Corporation--Debt Securities and Warrants to Purchase Debt
Securities--Underwriting Agreement Basic Provisions" and dated September 1,
1995 (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 4(h) of the Basic Provisions, the Company's
agreement to reimburse the Underwriters for expenses incurred in connection
with the matters referred to in Section 4(d) thereof and the preparation of
memoranda relating thereto will include fees and disbursements of counsel not
in excess of $ . (The Debt Securities will be listed
on .) (The Warrants will be listed on .)
(The Warrant Debt Securities will be
listed on .)
Please accept this offer no later than o'clock .M. 19 , 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
, 19 to purchase the Securities on the terms set forth therein."
Very truly yours,
By...........................
Title:
Address:
Accepted:
AMERICAN EXPRESS CREDIT CORPORATION
By...........................................
Title:
[Attach Schedule of Underwriters]
2
AMERICAN EXPRESS CREDIT CORPORATION
AND
THE CHASE MANHATTAN BANK, N.A.
Trustee
------------------------
SEVENTH SUPPLEMENTAL INDENTURE
Dated as of July 28, 1995
to
INDENTURE
Dated as of September 1, 1987
====================================
SEVENTH SUPPLEMENTAL INDENTURE, dated as of July 28, 1995 (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 THE CHASE MANHATTAN
BANK, N.A. (a national banking association), having its Corporate Trust Office
at One Chase Manhattan Plaza, Level 1B, Institutional Trust Window, New York,
New York 10081 as Trustee (the "Supplemental Trustee").
WHEREAS, the Company entered into an Indenture dated as of September 1,
1987 (the "Indenture") (as supplemented by a First Supplemental Indenture
dated as of November 1, 1987 with Bank of Montreal Trust Company, as trustee,
by a Second Supplemental Indenture dated as of January 15, 1988 with The First
National Bank of Boston, as trustee, by a Third Supplemental Indenture dated
as of April 1, 1988 with Chemical Bank (as successor to Manufacturers Hanover
Trust Company), as trustee, by a Fourth Supplemental Indenture dated as of May
1, 1988 with Trust Company Bank, as trustee, by a Fifth Supplemental Indenture
dated as of March 28, 1989 with The Bank of New York, as trustee, and by a
Sixth Supplemental Indenture dated as of May 1, 1989 with Bank of Montreal
Trust Company), with BankAmerica National Trust Company (as successor to
Security Pacific National Trust Company (New York)), as trustee (the "Initial
Trustee") securing 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 Securities pursuant to the Indenture and
proposes to issue additional series of Securities from time to time; 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 which
shall be a corporation organized and doing business under the laws of the
United States of America or 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 $20,000,000 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(q) of the
Indenture prior to the issuance of such series; and
WHEREAS, Section 11.01(g) of the Indenture provides that without the
consent of the Holders of Securities, the Company, when authorized by a
resolution of the Board of Directors, may enter into one or more indentures
supplemental to the Indenture for the purpose of evidencing and providing for
the acceptance of appointment thereunder of a Trustee other than the Initial
Trustee as Trustee for a series of Securities and adding to or changing any of
the provisions of the Indenture as shall be necessary to provide for or
facilitate the administration of the trusts under the Indenture by more than
one Trustee, pursuant to the requirements of Section 8.09 of the Indenture;
and
WHEREAS, the entry into this Supplemental Indenture by the parties hereto
is in all respects authorized by the provisions of the Indenture;
WHEREAS, the Company has furnished the Trustee with an Opinion of Counsel
complying with the requirements of Sections 1.02, 1.03 and 11.03 of the
Indenture, stating that the execution of this Seventh Supplemental Indenture
is authorized or permitted by the Indenture, and has delivered to the Trustee
a Board Resolution authorizing the execution and delivery of this Seventh
Supplemental Indenture, together with such other documents as may have been
required by Section 1.02 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
The Company hereby appoints the Supplemental Trustee as Trustee for such
series of Securities for which it shall be designated to act as Trustee by
Company Order delivered to it prior to the issuance of the Securities of such
series, 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 trusts under the Indenture administered by any other such Trustee.
Section 2
The Indenture, as supplemented and amended by this Supplemental Indenture
and all other indentures supplemental thereto, is in all respects ratified and
confirmed, and the Indenture, the Supplemental Indenture and all indentures
supplemental thereto shall be read, taken and construed as one and the same
instrument.
Section 3
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Supplemental
Indenture by any of the provisions of the Trust Indenture Act, such required
provision shall control.
Section 4
All covenants and agreements in this Supplemental Indenture by the
Company shall bind its successors and assigns, whether so expressed or not.
Section 5
In case any provision in this Supplemental Indenture or in such series of
Securities shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions (or of the other 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 such series of Securities any benefit or any legal or
equitable right, remedy or claim under this Supplemental Indenture.
Section 7
This Supplemental Indenture and each Security of such series 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, except the
certificate of authentication of the Supplemental Trustee thereon, shall be
taken as statements of the Company, and the Supplemental Trustee assumes no
responsibility for their correctness. The Supplemental Trustee makes no
representations as to the validity or sufficiency of the Indenture, this
Supplemental Indenture or of the Securities and shall not be
accountable for the use or application by the Company of the Securities or the
proceeds thereof.
Section 11
For the purposes of the Indenture, the Corporate Trust Office of the
Supplemental Trustee at the date of execution of this Supplemental Indenture
is located at One Chase Manhattan Plaza, Level 1B, Institutional Trust Window,
New York, New York 10081.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
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.
AMERICAN EXPRESS CREDIT CORPORATION
By: /s/ Jay B. Stevelman
Jay B. Stevelman
Treasurer
[SEAL]
Attest:
/s/ Robert M. Pyle, Jr.
Secretary
THE CHASE MANHATTAN BANK, N.A.,
as Trustee
By: /s/ James Heaney
Vice President
[SEAL]
Attest:
/s/ S. Wiltshire
Assistant Secretary
<PAGE>
EXHIBIT 5
[LETTERHEAD OF AMERICAN EXPRESS
CREDIT CORPORATION]
September 20, 1995
Securities and Exchange Commission
450 Fifth Street, N.W.
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'), in an
amount yielding aggregate proceeds to the Company of $1,000,000,000, to be
issued pursuant to an Indenture, dated as of September 1, 1987, between the
Company and BankAmerica National Trust Company (as successor to Security Pacific
National Trust Company (New York)), as Trustee.
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.
Very truly yours,
/s/ DAVID S. CARROLL
David S. Carroll
Counsel
<PAGE>
EXHIBIT 24(B)
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption 'Experts' in the
Registration Statement relating to $1 billion principal amount debt securities
and warrants to purchase debt securities, the Post-Effective Amendment to
Registration Statement No. 33-47497 relating to $310,297,000 principal amount
debt securities and warrants to purchase debt securities and in the related
Prospectus of American Express Credit Corporation (the 'Company'). We also
consent to the incorporation by reference therein of our report dated February
2, 1995 with respect to the consolidated financial statements and schedule of
the Company, which report, statements and schedule are included or incorporated
by reference in the Company's Annual Report on Form 10-K for the year ended
December 31, 1994 filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
New York, New York
September 21, 1995
<PAGE>
EXHIBIT 25(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 Walter S. Berman, Vincent P. Lisanke, Michael P.
Monaco and Jay B. Stevelman 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 which may be
required relating to the issuance of the Company's Debt Securities and Warrants
to purchase Debt Securities in such amounts as may result in proceeds to the
Company of up to an aggregate of $1,000,000,000 including a registration
statement, and any amendments thereto, filed with the Securities 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 necessary to be done in and about the premises
in 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 this 28th day of August, 1995.
<TABLE>
<S> <C>
AMERICAN EXPRESS CREDIT CORPORATION
By: /s/ VINCENT P. LISANKE
Vincent P. Lisanke
[Corporate Seal] President, Chief Executive Officer and Director
Attest: /s/ WALTER S. BERMAN
Walter S. Berman
/s/ ROBERT M. PYLE, JR. Chairman of the Board
Robert M. Pyle, Jr.
Secretary /s/ VINCENT P. LISANKE
Vincent P. Lisanke
President, Chief Executive Officer and Director
Michael P. Monaco
Director
</TABLE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________________________
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
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)_____
BANKAMERICA NATIONAL TRUST COMPANY
(Exact name of trustee as specified in its charter)
Not Applicable
(Jurisdiction of incorporation or organization if not a U.S. national bank)
95-3804037
(I.R.S. Employer Identification No.)
One World Trade Center, New York, New York 10048-1191
(Address of principal executive offices) (Zip Code)
General Counsel
Bank of America NT & SA
335 Madison Avenue, 4th Floor
New York, NY 10017
(212) 503-8297
(Name, address and telephone number of agent for services)
American Express Credit Corporaton
(Exact name obligor as specified in its
its charter)
Delaware 11-1988350
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Christina Centre, 301 North Walnut Street 19801
Wilmington, Delaware (Zip Code)
(Address of principal executive offices)
Debt Securities
(Title of the indenture securities)
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Comptroller of the Currency, 250 E Street,
S.W., Washington, D.C. 20219; Federal Deposit
Insurance Corporation, 550 17th Street, N.W.,
Washington, D.C. 20429; Board of Governors of The
Federal Reserve System, 20th and C Streets, N.W.,
Washington, D.C. 20551
(b) Whether it is authorized to exercise corporate trust
powers.
Yes
Item 2. Affiliations with Obligor
If the obligor is an affiliate of the trustee,
describe each such affiliation.
The obligor is not an affiliate of the trustee. (See
Note on Page 3)
Item 16. List of Exhibits
List below are exhibits filed as a part of this
statement of eligibility and qualification.
Exhibit 1 A copy of the Articles of Association
of the Trustee; incorporated herein by
reference to Exhibit 1 filed with Form
T-1 Statement, Registration No.
33-34670.
Exhibit 2 A copy of the Certificate of
Authority to Commence Business of the
Trustee, incorporated herein by
reference to Exhibit 2 filed with Form
T-1 Statement, Registration No.
2-97868.
Exhibit 3 Included in Exhibit 1.
Exhibit 4 A copy of the existing by-laws of the
Trustee; incorporated herein by
reference to Exhibit 4 filed with Form
T-1 Statement, Registration No.
33-34670.
Exhibit 5 A copy of each indenture referred to in
Item 4 if the obligor is in default.
Not applicable.
-2-
Exhibit 6 Consents of BankAmerica National Trust
Company formerly Security Pacific
National Trust Company (New York)
required by Section 321 (b) of the
Trust Indenture Act of 1939;
incorporated herein by reference to
Exhibit 6, filed with Form T-1
Statement, Registration No. 2-97868.
Exhibit 7 A copy of the latest report of the
Trustee published pursuant to the laws
or the requirements of its supervising
or examining authority.
Exhibit 8 A copy of any order pursuant to which
the foreign trustee is authorized to
act as sole trustee under indentures
qualified or to be qualified under the
Act.
Not Applicable.
Exhibit 9 Foreign trustees are required to file a
consent to service of process on Form
F-X.
Not Applicable.
-----------------------
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base responsive answers to Item 2 the
answer to said Item is based on incomplete information.
Item 2 may be considered correct unless amended by an amendment to
this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, BankAmerica National Trust Company, a national banking association
organized and existing under the laws of the United States of America, 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 August 25, 1995.
BANKAMERICA NATIONAL TRUST COMPANY
By /s/ John P. McGurn
John P. McGurn
Assistant Vice President
-3-
Exhibit 6 Consents of BankAmerica National
Trust Company formerly Security Pacific
National Trust Company (New York)
required by Section 321 (b) of the
Trust Indenture Act of 1939;
incorporated herein by reference to
Exhibit 6, filed with Form T-1
Statement, Registration No. 2-97868.
Exhibit 7 A copy of the latest report of the
Trustee published pursuant to the
laws or the requirements of its
supervising or examining authority.
Exhibit 8 A copy of any order pursuant to which
the foreign trustee is authorized to
act as sole trustee under indentures
qualified or to be qualified under
the Act.
Not Applicable.
Exhibit 9 Foreign trustees are required to file a
consent to service of process on
Form F-X.
Not Applicable.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base responsive answers to Item 2 the
answer to said Item is based on incomplete information.
Item 2 may be considered correct unless amended by an amendment to
this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, BankAmerica National Trust Company, a national banking association
organized and existing under the laws of the United States of America, 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 25th day of August, 1995.
BANKAMERICA NATIONAL TRUST COMPANY
By /s/ John P. McGurn
John P. McGurn
Assistant Vice President
-3-
BANKAMERICA NATIONAL TRUST COMPANY Exhibit 7 to Form T-1 One World Trade
Center, 18th Floor
New York City, NY 10048
FDIC Certificate Number 24430
Consolidated Report of Condition for
Insured Commercial Banks for June 30, 1995
All schedules are to be reported in thousands of dollars. Unless
otherwise indicated, report the amount outstanding as of the last
business day of the quarter.
SCHEDULE RC - BALANCE SHEET
Dollar Amounts in Thousands
_________________________________________________________________Assets
1. Cash and balances due from depository
institutions (from Schedule RC-A):
a. Noninterest-bearing balances and
currency and coin [1]............................202,209
b. Interest-bearing balances [2].................... 97,788
2. Securities:
a. Held-to-maturity securities
(from Schedule RC-B, column A).....................2,011
b. Available-for-sale securities
(from Schedule RC-B, column D).....................4,749
3. Federal funds sold and securities
purchases under agreements to resell:
a. Federal funds sold...............................
b. Securities purchased under
agreements to resell..............................
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned
income (from Schedule RC-C).............129,742
b. LESS: Allowance for loan and
lease losses................................338
c. LESS: Allocated transfer risk
reserve................................
d. Loans and leases, net of
unearned income, allowance,
and reserve (item 4.a minus
4.b and 4.c)....................................129,404
5. Assets held in trading accounts (from
Schedule RC-D)........................................... 887
6. Premises and fixed assets (including
capitalized leases).......................................
7. Other real estate owned...............................
8. Investments in unconsolidated subsidiaries and
associated companies..................................
9. Customer's liability to this bank on
acceptances outstanding...............................
10. Intangible assets (from Schedule RC-M)................. 8,833
11. Other assets (from Schedule RC-F)..................... 47,531
12. Total assets (sum of items 1 through 11............. 493,412
_______________
[1] Includes cash items in process of collection and unposted debits.
[2] Includes time certificates of deposit not held in trading ccounts.
SCHEDULE RC-CONTINUED
Dollar Amounts in Thousands
_________________________________________________________________Liabilities
13. Deposits:
a. In domestic offices (sum of totals of columns
A and C from Schedule RC-E)....................... 331,041
(1) Noninterest-bearing [1].........................331,041
(2) Interest-bearing.....................
b. In foreign offices, Edge and Agreement
subsidiaries, and IBFs............................
(1) Noninterest-bearing...........................
(2) Interest-bearing..............................
14. Federal funds purchased and securities
sold under agreements to repurchase:
a. Federal funds purchased...........................
b. Securities sold under agreements to repurchase....
15. Demand notes issued to the U.S. Treasury.............
16. Other borrowed money................................. 6,046
17. Mortgage indebtedness and obligations
under capitalized leases.............................
18. Bank's liability on acceptances executed
and outstanding......................................
19. Notes and debentures subordinated to deposits........
20. Other liabilities (from Schedule RC-G)............... 35,986
21. Total liabilities (sum of items 13 through 20).........373,073
22. Limited-life preferred stock.........................
EQUITY CAPITAL
23. Perpetual preferred stock............................
24. Common Stock......................................... 500
25. Surplus.............................................. 137,410
26(a)Undivided profits and capital reserves............... (17,585)
26(b)Net unrealized holding gains (losses) on available for sale
securities........................................... 14
27. Cumulative foreign currency translation adjustments..
28. Total equity capital (sum of items 23 through 27).... 120,339
29. Total liabilities, limited-life preferred stock,
and equity capital (sum of items 21,22 and 28)....... 493,412
_______________
1] Includes total demand deposits and noninterest-bearing time and
savings deposits.
