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EXHIBIT 1.1
EXECUTION VERSION
AMERICAN EXPRESS CREDIT CORPORATION
€1,000,000,000
0.625% Senior Notes Due 2021
UNDERWRITING AGREEMENT
November 15,
2016
Barclays
Bank PLC
Deutsche Bank AG, London Branch
HSBC Bank plc
Bank of Montreal, London Branch
MUFG Securities EMEA plc
Standard Chartered Bank
Mischler Financial Group, Inc.
Samuel A. Ramirez & Company, Inc.
c/o
Barclays Bank PLC
5 The North Colonnade
Canary Wharf
London E14 4BB, United Kingdom
c/o
Deutsche Bank AG, London Branch
Winchester House
1 Great Winchester Street
London EC2N 2DB, United Kingdom
c/o
HSBC Bank plc
8 Canada Square
London E14 5HQ, United Kingdom
c/o
Bank of Montreal, London Branch
95 Queen Victoria Street
London EC4V 4HG, United Kingdom
United Kingdom
c/o
MUFG Securities EMEA plc
Ropemaker Place, 25 Ropemaker Street
London EC2Y 9AJ, United Kingdom
c/o
Standard Chartered Bank
One Basinghall Avenue
London EC2V 5DD, United Kingdom
c/o
Mischler Financial Group, Inc.
1111 Bayside Drive, Suite 100
Corona Del Mar, CA 92625
c/o
Samuel A. Ramirez & Company, Inc.
61 Broadway, 29th Floor
New York, NY 10019
Ladies
and Gentlemen:
American
Express Credit Corporation, a corporation organized under the laws of Delaware (the "Company"), proposes to sell to the several
underwriters named in Schedule II hereto, acting severally
and
not jointly (the "Underwriters"), for whom Barclays Bank PLC, Deutsche Bank AG, London Branch and HSBC Bank plc (in such capacity, the
"Representatives") are acting as representatives, the principal amount of its securities identified in Schedule I hereto (the "Notes"), to be issued under an indenture (the
"Base Indenture") dated as of June 9, 2006, between the Company and The Bank of New York Mellon, as trustee (the
"Trustee"), as supplemented by the First Supplemental Indenture to be dated as of the Closing Date (the "Supplemental
Indenture" and, together with the Base Indenture, the "Indenture"), pursuant to the terms and conditions of this Underwriting
Agreement (the "Agreement"). To the extent there are no additional Underwriters listed in Schedule II other than the Representatives, the term
Representatives as used herein shall mean the Underwriters, and the terms Representatives
and Underwriters shall mean either the singular or plural as the context requires. Any reference herein to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final
Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 that were filed under the Exchange Act on or before the
Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be; and any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the
filing of any document under the Exchange Act after the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as
the case may be, deemed to be incorporated therein by reference. Certain terms used herein are defined in Section 21 hereof.
1. Representations and Warranties. The Company represents and warrants to, and agrees with, each
Underwriter as set forth below in this Section 1.
(a) The
Company meets the requirements for use of Form S-3 under the Act and has prepared and filed with the Commission an automatic shelf registration statement, as
defined in Rule 405 on Form S-3 (File No. 333-204124), including a related Base Prospectus, for registration under the Act of the offering and sale of the Notes. Such Registration
Statement, including any amendments thereto filed prior to the Execution Time, became effective upon filing. The Company may have filed with the Commission, as part of an amendment to the Registration
Statement or pursuant to Rule 424(b), one or more preliminary prospectus supplements relating to the Notes, each of which has previously been furnished to the Representatives. The Company will
file with the Commission the Final Prospectus relating to the Notes in accordance with Rule 424(b). As filed, the Final Prospectus shall contain all information required by the Act and the
rules thereunder, and, except to the extent the Representatives shall agree in writing to a modification, shall be in all substantive respects in the form furnished to the Representatives prior to the
Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the Base Prospectus and any
Preliminary Prospectus) as the Company has advised the Representatives,
prior to the Execution Time, will be included or made therein. The Registration Statement, at the Execution Time, meets the requirements set forth in Rule 415(a)(1)(x).
(b) On
each Effective Date, the Registration Statement did, and when the Final Prospectus is first filed in accordance with Rule 424(b) and on the Closing Date (as
defined herein), the Final Prospectus (and any supplement thereto) will, comply in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and
the respective rules thereunder; on each Effective Date and at the Execution Time, the Registration Statement did not and will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the statements therein not misleading; on the Effective Date and on the Closing Date, the Indenture did or will comply in all
material respects with the applicable requirements of the Trust Indenture Act and the rules thereunder; and
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on
the date of any filing pursuant to Rule 424(b), as of its date and on the Closing Date, the Final Prospectus (together with any supplement thereto) will not include any untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that
the Company makes no representations or warranties as to (i) that part of the Registration Statement that shall constitute the Statement of Eligibility and Qualification (Form T-1) under
the Trust Indenture Act of the Trustee or (ii) the information contained in or omitted from the Registration Statement or the Final Prospectus (or any supplement thereto) in reliance upon and
in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion in the Registration Statement or the Final
Prospectus (or any supplement thereto), it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8(b) hereof.
(c) As
of the Applicable Time, the Disclosure Package, when considered as a whole, did not contain any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions
from the Disclosure Package based upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion
therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section
8(b) hereof.
(d) (i)
At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Sections 13 or 15(d) of the Exchange Act or form of
prospectus), (iii) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Notes in reliance
on the exemption in Rule 163 and (iv) at the Execution Time (with such date being used as the determination date for purposes of this clause (iv)), the Company was or is (as the
case may be) a Well-Known Seasoned Issuer. The Company agrees to pay the fees required by the Commission relating to the Notes within the time required by Rule 456(b)(1) without regard to the
proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(e) (i)
At the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of
Rule 164(h)(2)) of the Notes and (ii) as of the Execution Time (with such date being used as the determination date for purposes of this clause (ii)), the Company was not and is
not an Ineligible Issuer (as defined in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be
considered an Ineligible Issuer.
(f) Each
Issuer Free Writing Prospectus does not include any information that conflicts with the information contained in the Registration Statement, including any document
incorporated therein by reference and any prospectus supplement deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or
omissions from the Disclosure Package based upon and in conformity with written information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8(b) hereof.
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(g) The
consolidated historical financial statements and schedules of the Company included in each Preliminary Prospectus present fairly, and the consolidated historical
financial statements and schedules of the Company included in the Final Prospectus will present fairly, in all material respects the financial condition, the results of operations and cash flows of
the Company and its consolidated subsidiaries as of the dates and for the periods indicated, comply as to form with the applicable accounting requirements of the Act and have been prepared in
conformity with generally accepted accounting principles, applied on a consistent basis throughout the periods involved (except as otherwise noted therein). The interactive data in the eXtensible
Business Reporting Language included or incorporated by reference in the Registration Statement fairly presents the information called for in all material respects and has been prepared in accordance
with the Commission's rules and guidelines applicable thereto.
(h) PricewaterhouseCoopers LLP
is an independent registered public accounting firm with respect to the Company within the meaning of the Act and the applicable
published rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board.
(i) The
execution and delivery of, and the performance by the Company of its obligations under, this Agreement have been duly and validly authorized by the Company, and this
Agreement has been duly executed and delivered by the Company.
(j) The
Indenture and the Notes have been duly authorized; the Indenture has been duly qualified under the Trust Indenture Act; the Base Indenture has been duly executed and
delivered, and the Indenture, when the Supplemental Indenture has been duly executed and delivered, and the Notes, when duly executed, authenticated, issued and delivered as contemplated hereby and by
the Indenture, 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 Notes and
the Indenture conform in all material respects to the descriptions thereof in the Base Prospectus and any applicable Preliminary Prospectus or Final Prospectus.
(k) Subsequent
to the respective dates as of which information contained in the Registration Statement, the Base Prospectus or any Preliminary Prospectus is given, except as
disclosed in the Disclosure Package, (i) there has not been any material adverse change in the condition (financial or other), earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, (ii) neither the Company nor any of its subsidiaries has entered into any
transaction not in the ordinary course of business material to the Company and its subsidiaries, taken as a whole and (iii) neither the Company nor any of its subsidiaries has incurred any
liabilities or obligations, direct or contingent, not in the ordinary course of business that are material in relation to the Company and its subsidiaries, taken as a whole.
(l) Each
of the Company and its subsidiaries has been duly incorporated or otherwise constituted and is validly existing as a corporation or other legal entity in good
standing under the laws of the jurisdiction in which it is chartered or organized with full corporate or limited liability company power and authority, as the case may be, to own or lease, as the case
may be, and to operate its properties and conduct its business as described in the Disclosure Package, each Preliminary Prospectus and the Final Prospectus; and each of the Company and its
subsidiaries is duly qualified to do business as a foreign corporation or other entity and is in good standing under the laws of each jurisdiction that, in the opinion of counsel for the Company,
requires such qualification, except where the failure to be so qualified would not, individually or in the aggregate, have a material adverse effect on the condition (financial or otherwise),
earnings, business or properties of the Company and its subsidiaries, taken as a whole.
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(m) Neither
the issuance or sale of the Notes, nor the execution, delivery and performance of this Agreement, the Indenture and the consummation of any other transactions
contemplated herein or therein will conflict with, or result in a breach or violation of, or result in the creation or imposition of any lien, charge or encumbrance upon any of the assets of the
Company or any of its subsidiaries pursuant to (i) the charter or by-laws or other constitutive documents of the Company or any of its subsidiaries, (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or any of its subsidiaries is a party or
bound or to which its or their property is subject, or (iii) to the best knowledge of the Company, any statute, law, rule, regulation, judgment, order or decree applicable to the Company, any
of its subsidiaries or any of their respective properties of any court, regulatory body, administrative agency, governmental agency, arbitrator or other authority having jurisdiction over the Company
or any of its subsidiaries or any of its or their properties, except, in the case of (ii) or (iii), where such conflict, breach, violation or creation or imposition of any lien, charge or
encumbrance would not, individually or in the aggregate, have a material adverse effect on the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries,
taken as a whole.
(n) To
the best knowledge of the Company, no material action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving
the Company or any of its subsidiaries or its or their property is pending or threatened that (i) could reasonably be expected to have a material adverse effect on the performance of this
Agreement or the consummation of any of the transactions contemplated hereby or (ii) could reasonably be expected to have a material adverse effect on the condition (financial or otherwise),
earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or
contemplated in the Disclosure Package.
(o) Neither
the Company nor any subsidiary of the Company is in violation or default of (i) any provision of its charter or bylaws or other constitutive documents,
(ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it is a
party or bound or to which its property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction over the Company or such subsidiary or any of its properties, as applicable, except, in the case of (ii) or (iii), where such violation
or default would not, individually or in the aggregate, have a material adverse effect on the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries,
taken as a whole.
(p) No
consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated
herein, except such as have been obtained under the Act and the Trust Indenture Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and distribution of the Notes by the Underwriters in the manner contemplated herein.
(q) The
Company and each of its subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
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(r) There
is and has been no failure on the part of the Company and any of the Company's directors or officers, in their capacities as such, to comply with any provision of
the Sarbanes Oxley Act of 2002 and the rules and regulations promulgated in connection therewith, including Section 402 related to loans and Sections 302 and 906 related to
certifications.
(s) The
Company has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, any stabilization (except as may be permitted under Regulation M of the Exchange Act) or manipulation of the price of any security of the Company to facilitate the
sale or resale of the Notes.
(t) The
Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an "investment company", as
such term is defined in the Investment Company Act.
(u) The
Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of
the Exchange Act; such disclosure controls and procedures have been designed to ensure that material information relating to the Company and its subsidiaries is made known to the Company's principal
executive officer and principal financial officer by others within those entities; and such disclosure controls and procedures are effective and are sufficient to ensure the accuracy of the
interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement.
(v) None
of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee, affiliate or other person acting on behalf of
the Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by the Company or its subsidiaries of the Foreign Corrupt Practices
Act of 1977, as amended, and the rules and regulations thereunder (the "FCPA"), including, without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any "foreign official" (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign
political office, in contravention of the FCPA and the Company and, to the knowledge of the Company, its affiliates have conducted their businesses in compliance with the FCPA and have instituted and
maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith. No part of the proceeds of the offering will be used,
directly or indirectly, in violation of the FCPA.
(w) The
operations of the Company are and have been conducted at all times in compliance in all material respects with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable money laundering statutes and the rules and regulations thereunder, and any applicable related or
similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the "Money Laundering Laws") and no
action, suit or proceeding by or before any governmental entity involving the Company with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(x) None
of the Company, any of its subsidiaries, or, to the knowledge of the Company, any director or officer of the Company or any of its subsidiaries is an individual or
entity ("Person") currently the subject or target of any sanctions administered or enforced by the United States government, including, without
limitation, the U.S. Department of the Treasury's Office of Foreign Assets Control, the United Nations Security Council, the European Union, or Her Majesty's
6
Treasury
(collectively, "Sanctions"), nor is the Company located, organized or resident in a country or territory that is the subject of comprehensive
Sanctions generally prohibiting dealings with such country or territory (presently Cuba, Iran, North Korea, Sudan, Syria or the Crimea region (each, a "Sanctioned
Country")); and the Company will not directly or indirectly use the proceeds of the sale of the Notes, or lend, contribute or otherwise make available such proceeds to any
subsidiaries, joint venture partners or other Person, to fund any activities of or business with any Person, that, at the time of such funding, is the subject of Sanctions, or in any country or
territory that, at the time of such funding, is a Sanctioned Country, in either case, in any manner that will result in a violation by any Person
(including any Person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.
Any
certificate signed by any officer of the Company and delivered to the Underwriters or counsel for the Underwriters in connection with the offering of the Notes shall be deemed a
representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company agrees to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from the Company, at the purchase price set forth in Schedule I hereto, the
principal amount of the Notes set forth opposite such Underwriter's name in Schedule II hereto.
3. Delivery and Payment.
(a) Delivery
of and payment for the Notes shall be made on the date and at the time specified in Schedule I hereto or
at such time on such later date not more than three Business Days after the foregoing date as the Representatives shall designate, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 9 hereof (such date and time of delivery and payment for the Notes being herein called
the "Closing Date"). Delivery of the Notes shall be made by the Company to the Representatives for the respective accounts of the several Underwriters
against payment by the several Underwriters through the Representatives of the purchase price thereof to or upon the order of the Company by wire transfer payable in same-day funds to an account
specified by the Company. Delivery of the Notes shall be made through the facilities of Euroclear and Clearstream unless the Representatives shall otherwise instruct.
4. Offering by Underwriters. It is understood that the several Underwriters propose to offer the Notes
for sale to the public as set forth in the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters that:
(a) Prior
to the termination of the offering of the Notes, the Company will not file any amendment of the Registration Statement or supplement (including the Final
Prospectus or any Preliminary
Prospectus) to the Base Prospectus unless the Company has furnished the Representatives a copy for the Representatives' review prior to filing and will not file any such proposed amendment or
supplement to which the Representatives reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the
Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed. The Company will promptly advise the Representatives (1) when
the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (2) when, prior to termination of the offering of the
Notes, any amendment to the Registration Statement shall have been filed and become effective, (3) prior to the termination of the offering, of any request by the Commission or its staff for
any amendment of the Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (4) prior to the termination of the offering, of the
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issuance
by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice that would prevent its use or the institution or threatening of any proceeding
for that purpose and (5) prior to the termination of the offering, of the receipt by the Company of any notification with respect to the suspension of the qualification of the Notes for sale in
any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will promptly use its best efforts to prevent the issuance of any such stop order or the occurrence
of any such suspension or prevention and, upon such issuance, occurrence or prevention, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or prevention,
including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared
effective as soon as practicable.
(b) To
prepare a final term sheet, containing solely a description of the Notes, in a form approved by the Representatives and substantially in the form attached as Schedule IV hereto and to file such
term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If,
at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b) any event occurs as a result of which the Disclosure Package or any Issuer
Free Writing Prospectus would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the Disclosure Package or any Issuer Free Writing Prospectus may cease until it is amended or
supplemented, and will amend or supplement, at the expense of the Company, the Disclosure Package or any such Issuer Free Writing Prospectus, as the case may be, to correct any such misstatements or
omissions and supply any amendment or supplement to the Representatives in such quantities as the Representatives may reasonably request.
(d) If,
at any time when a prospectus relating to the Notes is required to be delivered under the Act (including in circumstances where such requirement may be satisfied
pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement, file a new
registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final
Prospectus, the Company promptly will (1) notify the Representatives of such event, (2) prepare and file with the Commission, subject to the second sentence of paragraph (a) of
this Section 5, an amendment or supplement or new registration statement that will correct such statement or omission or effect such compliance,
(3) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of
the Final Prospectus and (4) supply any supplemented Final Prospectus to the Representatives in such quantities as the Representatives may reasonably request.
(e) As
soon as practicable, the Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Company
and its subsidiaries (which need not be audited) covering a 12-month period beginning after the date on which the Final Prospectus is filed pursuant to Rule 424 under the Act that will satisfy
the provisions of Section 11(a) of the Act and Rule 158.
(f) The
Company will furnish to the Underwriters copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by an Underwriter
or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final
Prospectus and
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each
Issuer Free Writing Prospectus and any supplement thereto as the Underwriters may reasonably request.
(g) The
Company will arrange, if necessary, for the qualification of the Notes for sale under the laws of such jurisdictions as the Representatives may designate, will
maintain such qualifications in effect so long as required for the distribution of the Notes and will pay any fee of the Financial Industry Regulatory Authority, Inc.
("FINRA"), in connection with its review of the offering; provided, however,
that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in
suits, other than those arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject.
(h) The
Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated, will pay all expenses incident to the performance of
its obligations hereunder, including, without limiting the generality of the foregoing: (i) all costs, taxes and expenses incident to the issue and delivery of the Notes, (ii) all fees
and expenses of the Company's counsel and accountants, (iii) all costs and expenses incident to the preparing, printing, filing and distributing of all documents relating to the offering,
(iv) the registration of the Notes under the Exchange Act; (v) any registration or qualification of the Notes for offer and sale under the securities or blue sky laws of the several
states (including filing fees but excluding fees and expenses of counsel for the Underwriters relating to such registration and qualification); and (vi) will reimburse the Underwriters for any
expenses and disbursements (including fees and disbursements of counsel not exceeding $10,000) incurred by them in connection with the matters referred to in Section
5(g) hereof and the preparation of memoranda relating thereto, for any filing fee of FINRA relating to the Notes, (vii) the listing of the Notes on the NYSE,
(viii) the qualification of the Notes into Euroclear and Clearstream, (ix) for any fees charged by investment rating agencies for rating the Notes and (x) all other costs and
expenses incident to the performance by the Company of its obligations hereunder.
(i) The
Company will use its best efforts to cause an application for the listing of the Notes on the NYSE and for the registration of the Notes under the Exchange Act to
become effective.
(j) The
Company will assist the Underwriters in arranging for the Notes to be eligible for clearance and settlement through Euroclear and Clearstream.
(k) The
Company agrees that, unless it obtains the prior written consent of the Representatives, and each Underwriter, severally and not jointly, agrees with the Company
that, unless it has obtained or will obtain, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Notes that would constitute an
Issuer Free Writing Prospectus or that would otherwise constitute a "free writing prospectus" (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the
Company under Rule 433, other than a free writing prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section
5(b) hereto; provided, however, that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a
"Permitted Free Writing Prospectus." The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing
Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free
Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(l) The
Company will not, without the consent of the Representatives, offer or sell any debt securities denominated in the currency in which the Notes are denominated having
a maturity of
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more
than one year (except under prior contractual commitments or pursuant to bank credit agreements) other than the Notes or publicly announce an intention to effect any such transaction during the
period beginning on the Execution Time and ending on the business day immediately following the Closing Date.
(m) The
Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Notes.
(n) The
Company confirms the appointment of Barclays Bank PLC in its role as stabilizing manager (the "Stabilizing
Manager") as the central point responsible for adequate public disclosure of information, and handling any request from a competent authority, in accordance with
Article 6(5) of Commission Delegated Regulation (EU) 2016/1052 of 8 March 2016 with regard to regulatory technical standards for the conditions applicable to buy-back programmes and
stabilization measures. The Stabilizing Manager for its own account may, to the extent permitted by applicable laws and directives, over-allot and effect transactions with a view to supporting the
market price of the Notes at a level higher than that which might otherwise prevail, but in doing so the Stabilizing Manager shall act as principal and not as agent of the Company and any loss
resulting from overallotment and stabilization shall be borne, and any profit arising therefrom shall be beneficially retained, by the Stabilizing Manager. However, stabilization action may not
necessarily occur. Nothing contained in this paragraph shall be construed so as to require the Company to issue in excess of €1,000,000,000 in aggregate principal amount of the Notes.
Such stabilization, if commenced, may be discontinued at any time and shall be conducted by the Stabilizing Manager in accordance with all applicable laws and rules.
6. Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase
the Notes shall be subject to the accuracy, in all material respects, of the representations and warranties on the
part of the Company contained herein as of the Execution Time and the Closing Date; to the accuracy, in all material respects, of the statements of the Company made in any certificates pursuant to the
provisions hereof; to the performance by the Company in all material respects of its obligations hereunder and to the following additional conditions:
(a) The
Final Prospectus, and any supplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); the final term sheet
contemplated by Section 5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act,
shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration
Statement or any notice that would prevent its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) Subsequent
to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the
Final Prospectus (exclusive of any supplement thereto), there shall not have been (i) any material change or decrease specified in the letter or letters referred to in paragraph (g) of
this Section 6; (ii) any material change, or any development involving a prospective change, in or affecting the condition (financial or
otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in
or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) or (iii) any decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined under Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or
of a possible change in any such rating that does not indicate the direction of the possible change the
10
effect
of which, in any case referred to in clause (i), (ii) or (iii) above, in the judgment of the Representatives, makes it impractical or inadvisable to proceed with the
offering or delivery of the Notes as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any supplement
thereto).
(c) The
Company shall have requested and caused Cleary Gottlieb Steen & Hamilton LLP, counsel for the Company, to have furnished to the Underwriters opinion
and letter, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Underwriters.
(d) The
Underwriters shall have received an opinion of David S. Carroll, Esq., Counsel of the Company dated the Closing Date, in form and substance reasonably satisfactory
to the Underwriters.
(e) The
Underwriters shall have received from Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Underwriters, such opinion and letter, dated the
Closing Date and addressed to the Underwriters, with respect to the issuance and sale of the Notes, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any
supplement thereto) and other related matters as the Underwriters 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 the Underwriters a certificate of the officers of the Company satisfactory to the Representatives , dated the Closing Date, to the
effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, the Disclosure Package and any supplements or amendments thereto and this
Agreement and that:
(i) the
representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as
if made on the Closing Date and the Company has complied in all material respects with all the agreements and satisfied, in all material respects, all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) no
stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have
been instituted or, to the Company's knowledge, threatened; and
(iii) since
the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement
thereto).
(g) The
Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Underwriters, at the Execution Time and at the Closing Date,
letters (which may refer to letters previously delivered to Underwriters), dated respectively as of the Execution Time and as of the Closing Date, in form and substance reasonably satisfactory to the
Underwriters.
(h) The
Notes shall be eligible for clearance and settlement through Euroclear and Clearstream.
(i) Prior
to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may
reasonably request.
11
If
any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of
the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the
Company in writing or by telephone or facsimile confirmed in writing.
The
documents required to be delivered by this Section 6 shall be delivered at the office of Skadden, Arps, Slate, Meagher &
Flom LLP, counsel for the Underwriters, at Four Times Square, New York, New York 10036, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the Notes provided for herein is not
consummated because any condition to the obligations of the Underwriters set forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 9 hereof or
because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provision hereof other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters severally through the Representatives for all out-of-pocket expenses (including reasonable fees and disbursements of counsel) that shall have
been incurred by them in connection with the proposed purchase and sale of the Notes.
8. Indemnification and Contribution.
(a) The
Company agrees to indemnify and hold harmless each Underwriter, the directors, officers, employees, and agents of each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under
the Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the registration statement for the registration of the Notes as originally filed or in
any amendment thereof, or in the Base Prospectus, any Preliminary Prospectus, the Final Prospectus, any Issuer Free Writing Prospectus, any issuer information filed or required to be filed pursuant to
Rule 433(d) or the information contained in the final term sheet required to be prepared and filed pursuant to Section 5(b) hereto, or in
any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon (x) any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion therein or (y) that part of the Registration Statement that shall constitute
the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act.
(b) Each
Underwriter severally and not jointly agrees to indemnify and hold harmless the Company, each of its directors, officers, employees, and agents, and each person who
controls the Company within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to written
information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives specifically for inclusion in the documents referred to in the
foregoing indemnity. The Company acknowledges that the statements set forth (i) in the first,
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second
and third sentences of the third paragraph under the heading "Underwriting" regarding initial sale of the Notes at the initial public offering price, selling concessions and the changing of the
offering price and other selling terms; (ii) the table under the heading "Underwriting" listing the Underwriters and their respective participation in the sale of the Notes; and (iii) in
the fifth and sixth paragraphs under the heading "Underwriting" related to stabilization and syndicate covering transactions and penalty bids in any Preliminary Prospectus and the Final Prospectus
constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in any Preliminary Prospectus, the Final Prospectus, any Issuer Free Writing Prospectus.
..
(c) Promptly
after receipt by an indemnified party under this Section 8 of notice of the commencement of any action,
such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or
(b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and
(ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or
(b) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying party's choice at the indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or
parties except as set forth below); provided, however, that such counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable
fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and does not include a statement as to, or an admission of,
fault, culpability or a failure to act by or on behalf of an indemnified party.
(d) In
the event that the indemnity provided in paragraph (a), (b) or (c) of this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company and the Underwriters severally agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending the same) (collectively "Losses") to
which the Company and one or more of the Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and by the
Underwriters on the other from the offering of the Notes; provided, however, that in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the
offering of the Notes) be responsible for any
13
amount
in excess of the underwriting discount or commission applicable to the Notes purchased by such Underwriter hereunder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Underwriters severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of
the Company on the one hand and of the Underwriters on the other in connection with the statements or omissions that resulted in such Losses as well as any other relevant equitable considerations.
Benefits received by the Company shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by it, and benefits received by the Underwriters shall be
deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the Final Prospectus. Relative fault shall be determined by reference to, among
other things, whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Company on the
one hand or the Underwriters on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The
Company and the Underwriters agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation that does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each person who controls an Underwriter within
the meaning of either the Act or the Exchange Act and each director, officer, employee
and agent of an Underwriter shall have the same rights to contribution as such Underwriter, and each person who controls the Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
(e) The
obligations of the Company under this Section 8 shall be in addition to any liability that the Company may
otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter within the meaning of the Act or the Exchange Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability that the respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each director of the Company (including any person who, with his consent, is named in the Registration Statement as about to become a director of the Company), to each
officer of the Company who has signed the Registration Statement and to each person, if any, who controls the Company within the meaning of the Act or the Exchange Act.
9. Default by an Underwriter. If any one or more Underwriters shall fail to purchase and pay for any
of the Notes agreed to be purchased by such Underwriter or Underwriters hereunder and such
failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in
the respective proportions that the principal amount of Notes set forth opposite their names in Schedule II hereto bears to the aggregate
principal amount of Notes set forth opposite the names of all the remaining Underwriters) the Notes that the defaulting Underwriter or Underwriters agreed but failed to purchase; provided, however,
that in the event that the aggregate principal amount of Notes that the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate principal amount of Notes
set forth in Schedule II hereto, the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to
purchase any, of the Notes, and if arrangements satisfactory to the Representatives and the Company for the purchase of such Notes by other persons are not made within 36 hours after such
failure, this Agreement will terminate without liability to any non-defaulting Underwriter or the Company. In the event of a default by any
14
Underwriter
as set forth in this Section 9, the Closing Date shall be postponed for such period, not exceeding five Business Days, as the
Representatives shall determine in order that the required changes in the Registration Statement and the Final Prospectus or in any other documents or arrangements may be effected. Nothing contained
in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company and any non-defaulting Underwriter for damages occasioned by its default hereunder. For purposes of
this Section 9, if more than one series of Notes is specified in Schedule I hereto, this Section 10 shall apply to each series of Notes as if this Agreement applied solely to such series.
10. Termination. This Agreement shall be subject to termination by the Representatives, by notice
given to the Company prior to delivery of and payment for the Notes, if at any
time prior to such time (i) trading in the Company's common stock shall have been suspended by the Commission or the NYSE or trading in securities generally shall have been suspended or
materially limited or minimum prices shall have been established on the NYSE, (ii) a banking moratorium shall have been declared either by federal or New York State authorities or a material
disruption in securities settlement or clearance services in the United States or (iii) there shall have occurred any outbreak of major hostilities in which the United States is involved,
declaration by the United States of a national emergency or war, or other substantial national or international calamity or crisis the effect of which on financial markets is such as to make it, in
the reasonable judgment of the Representatives, impractical or inadvisable to proceed with the offering or delivery of the Notes as contemplated by the Final Prospectus (exclusive of any amendment or
supplement thereto). Any such termination shall be without liability of any party to any other party except that the provisions of Section 5(h) and Section 8 shall at all times be effective. If the Representatives elect to terminate this Agreement as provided in this Section 10, the Company shall be notified promptly by the Representatives by
telephone or facsimile, confirmed by letter.
11. Representations and Indemnities to Survive. The respective agreements, representations,
warranties, indemnities and other statements of the Company or its officers, and of the Underwriters, set forth in or
made pursuant to this Agreement will remain in full force and effect regardless of any investigation made by or on behalf of any Underwriter or the Company or any of the officers, directors,
employees, agents or controlling persons referred to in Section 8 hereof, and will survive delivery of and payment for the Notes. The provisions
of Sections 7 and 8 hereof shall survive the termination or cancellation of this Agreement.
12. Notices. All notices or communications hereunder shall be in writing and if sent to the
Representatives will be mailed, delivered or telefaxed as set forth:
Barclays
Bank PLC
Attn: Debt Syndicate
5 The North Colonnade
Canary Wharf
London E14 4BB, United Kingdom
Fax: +44 (0) 20 7516 7548
Deutsche
Bank AG, London Branch
Attn: Syndicate Desk
Winchester House
1 Great Winchester Street
London EC2N 2DB, United Kingdom
Fax: + 44 (0) 20 7545 4455
15
HSBC
Bank plc
Attn: Transaction Management Group
8 Canada Square
London E14 5HQ, United Kingdom
Fax: + 44 (0) 20 7992 4973
Bank
of Montreal, London Branch
95 Queen Victoria Street
London EC4V 4HG, United Kingdom
United Kingdom
Fax: + 44 (0) 20 7664 8109
MUFG
Securities EMEA plc
Ropemaker Place, 25 Ropemaker Street
London EC2Y 9AJ, United Kingdom
Fax: + 44 (0) 20 7628 2872
Standard
Chartered Bank
One Basinghall Avenue
London EC2V 5DD, United Kingdom
Fax: + 44 (0) 20 7885 8095
Mischler
Financial Group, Inc.
1111 Bayside Drive, Suite 100
Corona Del Mar, CA 92625
Fax: + 1 (949) 720 0640
Samuel
A. Ramirez & Company, Inc.
61 Broadway, 29th Floor
New York, NY 10019
Fax: +1 (212) 248 3856
or
if sent to the Company, will be mailed, delivered or telefaxed to fax no.: (212) 640 2405 and confirmed to it at American Express Credit Corporation, 200 Vesey Street, New York, New York
10285, Attention of the Treasurer. Any party to this Agreement may change such address for notices by sending to the parties to this Agreement written notice of a new address for such purpose.
13. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the officers, directors, employees, agents
and controlling persons referred to in Section 8 hereof, and no other person will have any right or obligation hereunder.
14. No Fiduciary Duty. The Company hereby acknowledges that (a) the purchase and sale of the
Notes pursuant to this Agreement is an arm's-length commercial transaction between
the Company, on the one hand, and the Underwriters and any affiliate through which it may be acting, on the other, (b) the Underwriters are acting as principal and not as an agent or fiduciary
of the Company and (c) the Company's engagement of the Underwriters in connection with the offering and the process leading up to the offering is as independent contractors and not in any other
capacity. Furthermore, the Company agrees that it is solely responsible for making its own judgments in connection with the offering (irrespective of whether any of the Underwriters has advised or is
currently advising the Company on related or other matters). The Company agrees that it will not claim that the Underwriters have rendered advisory services of any nature or respect, or owe an agency,
fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto.
16
15. Agreement among Managers. The execution of this Agreement by all parties will constitute the
Underwriters' acceptance of the ICMA Agreement Among Managers Version 1/New York Schedule
subject to any amendment notified to the Underwriters in writing at any time prior to the execution of this Agreement. References to the "Managers" shall be deemed to refer to the Underwriters,
references to the "Lead Manager" shall be deemed to refer to each of Barclays Bank PLC, Deutsche Bank AG, London Branch and HSBC Bank plc and references to "Settlement Lead Manager"
shall be deemed to refer to Barclays Bank PLC. As applicable to the Underwriters, Clause 3 of the ICMA Agreement Among Managers Version 1/New York Schedule shall be deemed to be deleted
in its entirety and replaced with Section 9 of this Agreement.
16. Integration. This Agreement supersedes all prior agreements and understandings (whether written
or oral) between the Company and the Underwriters, or any of them, with respect
to the subject matter hereof.
17. Applicable Law. This Agreement will be governed by and construed in accordance with the laws of
the State of New York applicable to contracts made and to be performed within the
State of New York.
18. Counterparts. This Agreement may be signed in one or more counterparts, each of which shall
constitute an original and all of which together shall constitute one and the same
agreement.
19. Headings. The section headings used herein are for convenience only and shall not affect the
construction hereof.
20. Bail-in Powers. Notwithstanding and to the exclusion of any other term of this Agreement or any
other agreements, arrangements, or understanding between any of the Underwriters
and the Company, the Company acknowledges and accepts that a BRRD Liability arising under this Agreement may be subject to the exercise of Bail-in Powers by the Relevant Resolution Authority, and
acknowledges, accepts, and agrees to be bound by:
(a) The
effect of the exercise of Bail-in Powers by the Relevant Resolution Authority in relation to any BRRD Liability of any of the Underwriters to the Company under this
Agreement, that (without limitation) may include and result in any of the following, or some combination thereof:
- (i)
- the
reduction of all, or a portion, of the BRRD Liability or outstanding amounts due thereon;
- (ii)
- the
conversion of all, or a portion, of the BRRD Liability into shares, other debt securities or other obligations of any of the Underwriters or another person (and
the issue to or conferral on the Company of such shares, securities or obligations);
- (iii)
- the
cancellation of the BRRD Liability; and
- (iv)
- the
amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a
temporary period.
(b) The
variation of the terms of this Agreement, as deemed necessary by the Relevant Resolution Authority, to give effect to the exercise of Bail-in Powers by the Relevant
Resolution Authority.
(c) As
used in this Section 20, "Bail-in Legislation" means in relation to a member state of the European Economic Area which
has implemented, or which at any time implements, the BRRD, the relevant implementing law, regulation, rule or requirement as described in the EU Bail-in Legislation Schedule from time to time;
"Bail-in Powers" means any Write Down and Conversion Powers as defined in the EU Bail-in Legislation Schedule, in relation to the relevant
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Bail-in
Legislation; "BRRD" means Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms; "EU Bail-in Legislation Schedule" means the
document described as such, then in effect, and published by the Loan Market Association (or any successor person) from time to time at http://www.lma.eu.com/; "BRRD Liability" means a liability in
respect of which the relevant Write Down and Conversion Powers in the applicable Bail-in Legislation may be exercised; and "Relevant Resolution Authority" means the resolution authority with the
ability to exercise any Bail-in Powers in relation to the Underwriters.
21. Definitions. The terms that follow, when used in this Agreement, shall have the meanings
indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
"Applicable Time" shall mean 11:30 a.m., New York City time, on the date hereof.
"Base Prospectus" shall mean the prospectus referred to in Section 1(a) above contained in
the Registration Statement at the Effective Date.
"Business Day" shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in New York City.
"Clearstream" shall mean Clearstream Banking, société
anonyme.
"Commission" shall mean the Securities and Exchange Commission.
"Disclosure Package" shall mean (i) the Base Prospectus, (ii) the Preliminary Prospectus used most recently prior to the
Execution Time, (iii) the Issuer Free Writing Prospectus identified in Schedule III hereto, including the final term sheet prepared and
filed pursuant to Section 5(b) hereto, and (iv) any other Free Writing Prospectus that the parties hereto shall hereafter expressly agree in
writing to treat as part of the Disclosure Package.
"Effective Date" shall mean each date and time that the Registration Statement and any post-effective amendment or amendments thereto
became or becomes effective.
"Euroclear" shall mean Euroclear Bank S.A./N.V.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to the Notes that was first filed pursuant to Rule 424(b) after
the Execution Time, together with the Base Prospectus.
"Free Writing Prospectus" shall mean a free writing prospectus, as defined in Rule 405.
"Investment Company Act" shall mean the Investment Company Act of 1940, as amended.
"Issuer Free Writing Prospectus" shall mean an issuer free writing prospectus, as defined in Rule 433.
"NYSE" shall mean the New York Stock Exchange.
"Preliminary Prospectus" shall mean any preliminary prospectus supplement to the Base Prospectus referred to in Section 1(a) above which is used prior to the filing of
the Final Prospectus, together with the Base Prospectus.
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"Registration Statement" shall mean the registration statement referred to in Section 1(a)
above, including exhibits and financial statements but excluding all Forms T-1 and any prospectus supplement relating to the Notes that is filed with the Commission pursuant to
Rule 424(b) and deemed part of such registration statement pursuant to Rule 430B, as amended on each Effective Date.
"Rule 158," "Rule 163,"
"Rule 164," "Rule 172," "Rule 405,"
"Rule 415," "Rule 424", "Rule 430B"
and "Rule 433" refer to such rules under the Act.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as amended and the rules and regulations of the Commission promulgated
thereunder.
"Well-Known Seasoned Issuer" shall mean a well-known seasoned issuer, as defined in Rule 405.
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If
the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Company and the several Underwriters.
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Very truly yours, |
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AMERICAN EXPRESS CREDIT CORPORATION |
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By: |
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/s/ KERRI BERNSTEIN
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Name: |
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Kerri Bernstein |
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Title: |
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Treasurer |
[Signature Page to AECC Underwriting Agreement]
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The foregoing Agreement is hereby confirmed and accepted, as of the date specified in Schedule I hereto. |
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BARCLAYS BANK PLC |
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By: |
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/s/ SEAN WHITE
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Name: |
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Sean White |
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Title: |
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Legal UK & Europe,
Authorised to Sign |
[Signature Page to AECC Underwriting Agreement]
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DEUTSCHE BANK AG, LONDON BRANCH |
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By: |
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/s/ JARED BIRNBAUM
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Name: |
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Jared Birnbaum |
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Title: |
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Managing Director |
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By: |
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/s/ ANGUEL ZAPRIANOV
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Name: |
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Anguel Zaprianov |
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Title: |
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Managing Director |
[Signature Page to AECC Underwriting Agreement]
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HSBC BANK PLC |
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By: |
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/s/ KAREN WARNER
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Name: |
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Karen Warner |
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Title: |
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Director |
[Signature Page to AECC Underwriting Agreement]
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BANK OF MONTREAL, LONDON BRANCH |
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By: |
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/s/ ROBERT YEUNG
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Name: |
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Robert Yeung |
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Title: |
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Managing Director |
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By: |
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/s/ EDWARD MIZUHARA
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Name: |
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Edward Mizuhara |
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Title: |
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Director |
[Signature Page to AECC Underwriting Agreement]
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MUFG SECURITIES EMEA PLC |
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By: |
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/s/ TREVOR KEMP
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Name: |
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Trevor Kemp |
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Title: |
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Authorised Signatory |
[Signature Page to AECC Underwriting Agreement]
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STANDARD CHARTERED BANK |
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By: |
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W. M. Llewellyn
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Name: |
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W. M. Llewellyn |
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|
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Title: |
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Executive Director |
[Signature Page to AECC Underwriting Agreement]
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MISCHLER FINANCIAL GROUP, INC. |
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By: |
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/s/ DOYLE L. HOLMES
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Name: |
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Doyle L. Holmes |
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Title: |
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President |
[Signature Page to AECC Underwriting Agreement]
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SAMUEL A. RAMIREZ & COMPANY, INC. |
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By: |
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/s/ ROBERT W. HONG
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Name: |
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Robert W. Hong |
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Title: |
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Managing Director |
[Signature Page to AECC Underwriting Agreement]
SCHEDULE I
Underwriting
Agreement dated November 15, 2016
Registration
Statement File No.: 333-204124
Representatives:
Barclays Bank PLC, Deutsche Bank AG, London Branch and HSBC Bank plc
Title,
Purchase Price and Description of the Notes.
Title:
0.625% Senior Notes due 2021
Principal amount: €1,000,000,000
Purchase price (include accrued interest or amortization, if any): 99.234%
Optional Redemption:
Prior
to October 22, 2021 (the date that is 31 days prior to the maturity date), the Notes may be redeemed at a "make-whole" redemption price calculated as described in the preliminary
prospectus supplement dated November 15, 2016 related to this offering), at a discount rate of the Comparable Government Bond Rate (as defined therein) plus 0.20% (or 20 bps), plus accrued and
unpaid interest thereon to, but excluding, the date fixed for redemption. On or after October 22, 2021 (the date that is 31 days prior to the maturity date), the Notes may be redeemed at
a redemption price equal to the principal amount of the Notes being redeemed plus accrued and unpaid interest thereon to, but excluding, the date fixed for redemption. In addition, the Notes may be
redeemed upon the occurrence of a Tax Event (as defined in the preliminary prospectus supplement dated November 15, 2016 related to this offering) at a redemption price equal to the principal
amount of the Notes being redeemed plus accrued and unpaid interest thereon to, but excluding, the date fixed for redemption.
Closing
Date, Time and Location: November 22, 2016 at 10:00 a.m. at Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, New York 10036
Type
of Offering: Non-delayed
Sch. I-1
SCHEDULE II
|
|
|
|
|
Name of Underwriter
|
|
Principal Amount
of Notes to be
Purchased |
|
Barclays Bank PLC |
|
€ |
295,200,000 |
|
Deutsche Bank AG, London Branch |
|
252,400,000 |
|
HSBC Bank plc |
|
252,400,000 |
|
Bank of Montreal, London Branch |
|
63,400,000 |
|
MUFG Securities EMEA plc |
|
63,300,000 |
|
Standard Chartered Bank |
|
63,300,000 |
|
Mischler Financial Group, Inc. |
|
5,000,000 |
|
Samuel A. Ramirez & Company, Inc. |
|
5,000,000 |
|
Total |
|
€ |
1,000,000,000 |
|
Sch. II-1
SCHEDULE III
Schedule
of Free Writing Prospectuses included in the Disclosure Package
- 1.
- Issuer
Free Writing Prospectus relating to the terms of the Notes, filed with the Commission on November 15, 2016.
Sch. III-1
SCHEDULE IV
AMERICAN EXPRESS CREDIT CORPORATION
PRICING TERM SHEET
November 15, 2016
€1,000,000,000
0.625% Senior Notes due 2021
|
|
|
Issuer: |
|
American Express Credit Corporation |
Offered Securities: |
|
0.625% Senior Notes due November 22, 2021 (the "Notes") |
Ranking: |
|
The Notes will be general unsecured obligations that rank on an equal basis with all other unsubordinated debt of American Express Credit
Corporation. |
Expected Ratings* (Moody's / S&P / Fitch): |
|
** / ** / ** |
Trade Date: |
|
November 15, 2016 |
Settlement Date: |
|
November 22, 2016 (T + 5 (London)) |
Format: |
|
SEC Registered Senior Unsecured Notes |
Principal Amount: |
|
€1,000,000,000 |
Maturity Date: |
|
November 22, 2021 |
Price to Public: |
|
99.584% |
Underwriters' Discounts and Commissions: |
|
0.35% |
Proceeds to Issuer (Net before Expenses): |
|
€992,340,000 |
Coupon: |
|
0.625% |
Benchmark Security: |
|
OBL #174 0.000% due October 8, 2021 |
Benchmark Security Price: |
|
101.652% |
Benchmark Security Yield: |
|
–0.334% |
Spread to Benchmark Security: |
|
+104.4 bps |
Yield to Maturity: |
|
0.710% |
Mid-Swap Yield: |
|
0.140% |
Spread to Mid-Swap: |
|
+57 bps |
Interest Payment Dates: |
|
Paid annually on November 22, commencing November 22, 2017 |
Sch. IV-1
|
|
|
Optional Redemption: |
|
Prior to October 22, 2021 (the date that is 31 days prior to the maturity date), the Notes may be redeemed at a "make-whole" redemption price
calculated as described in the preliminary prospectus supplement dated November 15, 2016 related to this offering), at a discount rate of the Comparable Government Bond Rate (as defined therein) plus 0.20% (or 20 bps), plus accrued and unpaid
interest thereon to, but excluding, the date fixed for redemption. On or after October 22, 2021 (the date that is 31 days prior to the maturity date), the Notes may be redeemed at a redemption price equal to the principal amount of the
Notes being redeemed plus accrued and unpaid interest thereon to, but excluding, the date fixed for redemption. In addition, the Notes may be redeemed upon the occurrence of a Tax Event (as defined in the preliminary prospectus supplement dated
November 15, 2016 related to this offering) at a redemption price equal to the principal amount of the Notes being redeemed plus accrued and unpaid interest thereon to, but excluding, the date fixed for redemption. |
Day Count Convention: |
|
Actual/Actual (ICMA) |
Denominations: |
|
€100,000 and integral multiples of €1,000 in excess thereof |
CUSIP: |
|
025818KC8 |
ISIN: |
|
XS1521058518 |
Common Code: |
|
152105851 |
Listing: |
|
Application will be made to list the Notes on the New York Stock Exchange |
Settlement: |
|
Euroclear/Clearstream |
Joint Book-Running Managers: |
|
Barclays Bank PLC
Deutsche Bank AG, London Branch
HSBC Bank plc |
Co-Managers: |
|
Bank of Montreal, London Branch
MUFG Securities EMEA plc
Standard Chartered Bank
Mischler Financial Group, Inc.
Samuel A. Ramirez & Company, Inc. |
Sch. IV-2
|
|
|
Stabilization: |
|
Barclays Bank PLC as the stabilization manager may over-allot Notes or effect transactions with a view to supporting the market price of the Notes at a
level higher than that which might otherwise prevail. However, stabilization may not necessarily occur. Any stabilization action may being on or after the date on which adequate public disclosure of the terms of the offer of the Notes is made and may
cease at any time, but it must end no later than the earlier of the 30 days after the issue date of the Notes and 60 days after the date of the allotment of the Notes. Any stabilization action or over-allotment must be conducted by the
stabilizing manager in accordance with the applicable laws and rules. |
- *
- Note: An explanation of the significance of ratings may be obtained from the ratings agencies. Generally, rating agencies base their ratings on
such material and information, and such of their own investigations, studies and assumptions, as they deem appropriate. The rating of the Notes should be evaluated independently from similar ratings
of other securities. A credit rating of a security is not a recommendation to buy, sell or hold securities and may be subject to review, revision, suspension, reduction or withdrawal at any time by
the assigning rating agency.
The issuer has filed a registration statement (including a base prospectus dated May 13, 2015) and a preliminary prospectus supplement, dated November 15, 2016,
with the U.S. Securities and Exchange Commission for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement, the preliminary
prospectus supplement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering. You may get these documents for free by visiting EDGAR on
the SEC's website at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus and related preliminary prospectus
supplement if you request them by calling toll free: Barclays Bank PLC, at +44 (0) 20 7773 9098, Deutsche Bank AG, London Branch, at +1 800 503 4611 and HSBC
Bank plc, at +1 866 811 8049.
Sch. IV-3
QuickLinks
AMERICAN EXPRESS CREDIT CORPORATION
SCHEDULE I
SCHEDULE II
SCHEDULE III
