EXHIBIT 10.1
Execution Copy
AMENDMENT NO. 1 (this “Amendment”) dated as of July 19, 2013 TO THE SUBSCRIPTION AGREEMENT, among AMERICAN EXPRESS CREDIT CORPORATION, a Delaware corporation, as Borrower (the “Borrower”); CITIBANK N.A., SYDNEY BRANCH, COMMONWEALTH BANK OF AUSTRALIA, NATIONAL AUSTRALIA BANK LIMITED and WESTPAC BANKING CORPORATION, as Mandated Lead Arrangers and Bookrunners; the BANKS party to the Subscription Agreement referenced below; and CITISECURITIES LIMITED, as facility agent (in such capacity, the “Facility Agent”).
WHEREAS, the parties have entered into a Subscription Agreement dated as of August 3, 2011 (the “Subscription Agreement”);
WHEREAS, the Borrower has requested that the Subscription Agreement be amended in certain respects as provided in this Amendment; and
WHEREAS, pursuant to Section 9.5 of the Subscription Agreement, the Banks are, on terms and conditions stated below, willing to grant the request of the Borrower, and the Borrower and the Banks have agreed to amend the Subscription Agreement as set forth in this Amendment;
Section 1. Definitions. Except as otherwise defined herein, terms defined in the Subscription Agreement are used herein as defined therein.
Section 2. Amendments. Subject to the satisfaction of the conditions precedent specified in Section 4 below, but effective as of the date hereof, the Subscription Agreement is hereby amended as follows:
2.01. The reference to “August 3, 2014” in the definition of “Tranche A Termination Date” in Section 1.1 of the Subscription Agreement is amended to read “August 3, 2015”.
2.02. The pricing grid applicable to Tranche A Loans set forth immediately under the heading “Tranche A” in the definition of “Applicable Margin” in Schedule 1.1(b) of the Subscription Agreement is hereby amended to read as follows:
| | Level I | Level II | Level III | Level IV | Level V | Level VI | Level VII |
| Applicable Margin | 0.475% | 0.525% | 0.575% | 0.625% | 0.725% | 0.825% | 1.025% |
| Facility Fee Rate | 0.475% | 0.525% | 0.575% | 0.625% | 0.725% | 0.825% | 1.025% |
2.03. Article IV of the Subscription Agreement is hereby amended to insert Section 4.13 to read as follows:
SECTION 4.13 Sanctioned Persons. Neither the Borrower nor any of its Significant Subsidiaries, and, to the knowledge of the Borrower, none of their respective directors, officers or employees (i) is currently the subject of Sanctions, (ii) is located or organized or residing in any Designated Jurisdiction or (iii) is or has been (within the previous five (5) years) engaged in any transaction with any Person who is now or was the subject of Sanctions or who is located, organized or residing in any Designated Jurisdiction. No Loan, nor the proceeds of any Loan, has been used, directly or indirectly, to lend, contribute, provide or has otherwise been made available to fund any activity or business in any Designated Jurisdiction or any Person who is the subject of any Sanctions, or in any other manner that will result in any violation by any Person (including any Bank, the Mandated Lead Arrangers or the Facility Agent) of Sanctions.
As used in this Section 4.13: “Designated Jurisdiction” means any country or territory to the extent that such country or territory itself is the subject of any Sanction; and “Sanctions” means any international economic sanction administered or enforced by the Office of Foreign Assets Control of the United States Department of the Treasury, the United Nations Security Council, the European Union, Her Majesty’s Treasury or other relevant sanctions authority.
Section 3. Representations and Warranties. The Borrower represents and warrants as to itself that the representations and warranties set forth in Article IV of the Subscription Agreement are true and complete on the date hereof as if made on and as of the date hereof and as if each reference in said Article IV to “this Agreement” included reference to this Amendment.
Section 4. Conditions Precedent. As provided in Section 2 above, the amendment of the Subscription Agreement contemplated hereby shall become effective, as of the date hereof, upon the satisfaction of the following conditions precedent:
4.01. Execution by All Parties. This Amendment shall have been executed and delivered by the Borrower and each of the Banks.
4.02. Fees. The Borrower shall have paid all accrued fees and expenses of the Facility Agent (including the reasonable fees and expenses of counsel to the Facility Agent in connection with this Amendment), and the Facility Agent shall have received for the account of each extending Bank the extension fee in an amount that shall have been agreed between the Borrower and the Facility Agent.
4.03. Tranche A Commitments. Each of the actions set forth in Section 5 shall have occurred.
Section 5. Assignment of Certain Tranche A Commitments. Immediately and automatically upon the effectiveness of this Amendment, each of the Banks listed on Schedule 1 hereto in its capacity as a Tranche A Bank (collectively, the “Dropping Tranche A Banks”) shall no longer be a Tranche A Bank and, in connection therewith, (i) the Dropping Tranche A Banks shall assign and sell at par to the Banks listed on Schedule 2 hereto (collectively, the “Upsizing Tranche A Banks”) all of their Tranche A Commitments, together with their outstanding Tranche A Loans and all of the related rights under the Credit Documents, and (ii) the Upsizing Tranche A Banks shall purchase and assume at par all of the Tranche A Commitments of the Dropping Tranche A Banks, together with all of the outstanding Tranche A Loans held by the Dropping Tranche A Banks and all of the related rights under the Credit Documents, and shall pay accrued and unpaid interest and Facility Fees thereon, in each case such that Tranche A Commitments and Tranche A Loans shall be held by the Upsizing Tranche A Banks as set forth on Schedule 2 hereto. To effect the foregoing payments, the related transfers of funds shall be netted to the extent necessary to minimize the actual flows of funds between the relevant parties. The parties hereto waive any other actions required by Section 9.6(d) of the Subscription Agreement to effect the foregoing assignments.
Section 6. Miscellaneous. Except as herein provided, the Subscription Agreement shall remain unchanged and in full force and effect. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by electronic transmission shall be effective as delivery of a manually executed counterpart of this Amendment. This Amendment shall be governed by, and construed in accordance with, the law of the State of New York.
[Signature pages to follow]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered as of the day and year first above written.
| | AMERICAN EXPRESS CREDIT CORPORATION |
| | |
| | | | |
| | By: | /s/ Vivian Zhou | |
| | | Name: Vivian Zhou |
| | | Title: Treasurer |
CITIBANK, N.A., SYDNEY BRANCH
By: /s/ Lachlan Tracey
Name: Lachlan Tracey
Title: Director
By: /s/ Glenn Phillips
Name: Glenn Phillips
Title: Director
WESTPAC BANKING CORPORATION
By: /s/ Robert Cameron
Name: Robert Cameron
Title: Associate Director
COMMONWEALTH BANK OF AUSTRALIA
By: /s/ Matthew Lever
Name: Matthew Lever
Title: Director
NATIONAL AUSTRALIA BANK LIMITED
By: /s/ Rosemarie DiCanto
Name: Rosemarie DiCanto
Title: Director
SUMITOMO MITSUI BANKING CORPORATION
By: /s/ Alan Krouk
Name: Alan Krouk
Title: Managing Director
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
By: /s/ Robert Grillo
Name: Robert Grillo
Title: Director
BANK OF AMERICA, N.A.
By: /s/ Scott W. Reynolds
Name: Scott W. Reynolds
Title: Director
DEUTSCHE BANK AG NEW YORK BRANCH
By: /s/ Virginia Cosenza
Name: Virginia Cosenza
Title: Vice President
By: /s/ Ming K. Chu
Name: Ming K. Chu
Title: Vice President
JPMORGAN CHASE BANK, N.A.
By: /s/ Lorenzo Melendez
Name: Glenn Phillips
Title: Executive Director
MIZUHO BANK, LTD.
By: /s/ Debra Anne Hazelton
Name: Debra Anne Hazelton
Title: General Manager
CREDIT SUISSE AG, CAYMAN ISLAND BRANCH
By: /s/ Doreen Barr
Name: Doreen Barr
Title: Authorized Signatory
By: /s/ Alex Verdone
Name: Alex Verdone
Title: Associate
LLOYDS TSB BANK PLC
By: /s/ Dennis McClellan
Name: Dennis McClellan
Title: Assistant Vice President
By: /s/ Karen Weich
Name: Karen Weich
Title: Vice President
ROYAL BANK OF CANADA
By: /s/ Nicole Fawkner
Name: Nicole Fawkner
Title: Director, Corporate Banking
THE ROYAL BANK OF SCOTLAND PLC
By: /s/ Fergus Smail
Name: Fergus Smail
Title: Director
UBS AG, AUSTRALIA BRANCH
By: /s/ Luke Goldsworthy
Name: Luke Goldsworthy
Title: Director
By: /s/ Celle Raguine
Name: Celle Raguine
Title: Associate Director
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., SYDNEY BRANCH
By: /s/ Shunsuke Suzuki
Name: Shunsuke Suzuki
Title: Deputy General Manager
GOLDMAN SACHS LENDING PARTNERS LLC
By: /s/ Michelle Latzoni
Name: Michelle Latzoni
Title: Authorized Signatory
HSBC BANK AUSTRALIA LIMITED
By: /s/ Charlotte Middleton
Name: Charlotte Middleton
Title: Attorney, Chief Risk Officer
STANDARD CHARTERED BANK
By: /s/ James P. Hughes
Name: James P. Hughes
Title: Director
By: /s/ Andrew Y. Ng
Name: Andrew Y. Ng
Title: Director
TORONTO DOMINION (TEXAS) LLC
By: /s/ Masood Fikree
Name: Masood Fikree
Title: Authorized Signatory
THE NORTHERN TRUST COMPANY
By: /s/ Sophia E. Love
Name: Sophia E. Love
Title: Vice President
KEB AUSTRALIA LTD.
By: /s/ Jong Min Jeong
Name: Jong Min Jeong
Title: Managing Director
TAIWAN COOPERATIVE BANK, LTD.
By: /s/ Wen-Ching Wang
Name: Wen-Ching Wang
Title: VP & General Manager
BANK OF TAIWAN, OFFSHORE BANKING BRANCH
By: /s/ Li-Fen Jane
Name: Li-Fen Jane
Title: SVP & General Manager
THE SHANGHAI COMMERCIAL & SAVINGS BANK, LTD. OFFSHORE BANKING BRANCH
By: /s/ Wen-Chen Chang
Name: Wen-Chen Chang
Title: Deputy Executive Vice President
By: /s/ Kevin Shiao
Name: Kevin Shiao
Title: Senior Vice President
DROPPING TRANCHE A BANKS
1. Taiwan Cooperative Bank, Ltd.
2. Bank of Taiwan, Offshore Banking Branch
3. The Shanghai Commercial & Savings Bank, Ltd. Offshore Banking Branch
SCHEDULE 2
UPSIZING TRANCHE A BANKS
| Bank | | Tranche A Commitments immediately after the effectiveness of this Amendment | | | Tranche A Loans immediately after the effectiveness of this Amendment | |
| Citibank, N.A., Sydney Branch | | $ | A141,250,000 | | | $ | A141,250,000 | |
| Westpac Banking Corporation | | $ | A197,250,000 | | | $ | A197,250,000 | |
| Commonwealth Bank of Australia | | $ | A141,250,000 | | | $ | A141,250,000 | |
| National Australia Bank Limited | | $ | A141,250,000 | | | $ | A141,250,000 | |
