<PAGE>
REGISTRATION NO. 33-62485
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PITNEY BOWES CREDIT CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 06-0946476
(STATE OR OTHER JURISDICTION (IRS EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
201 MERRITT SEVEN
NORWALK, CONNECTICUT 06856-5151
(203) 846-5600
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
KEITH H. WILLIAMSON
VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
PITNEY BOWES CREDIT CORPORATION
201 MERRITT SEVEN
NORWALK, CONNECTICUT 06856-5151
(203) 846-5600
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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COPIES TO:
SARAH JONES BESHAR, ESQ. ROBERT S. RISOLEO, ESQ.
DAVIS POLK & WARDWELL SULLIVAN & CROMWELL
450 LEXINGTON AVENUE 125 BROAD STREET
NEW YORK, NEW YORK 10017 NEW YORK, NEW YORK 10004
(212) 450-4000 (212) 558-4000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of this Registration Statement as determined in
light of market conditions and other factors.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED NOVEMBER 2, 1995
PITNEY BOWES CREDIT CORPORATION
DEBT SECURITIES
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Pitney Bowes Credit Corporation (the "Company" or "PBCC") from time to time
may offer in one or more series its unsecured debt securities consisting of
notes or debentures (the "Debt Securities") for issuance and sale at an
aggregate initial offering price not to exceed $750,000,000 (or the equivalent
at the time of offering in non-U.S. dollar denominated currencies or units). As
used herein, Debt Securities shall include securities denominated, or whose
principal is payable, in United States dollars, or, at the option of the
Company, in any other currency or in composite currencies or in amounts
determined by reference to an index. Debt Securities will be offered in
amounts, at prices and on the terms to be determined at the time of sale and to
be set forth in supplements to this Prospectus. The Company may sell Debt
Securities to underwriters, to or through dealers, acting as principals for
their own account or acting as agents, or directly to other purchasers. See
"Plan of Distribution".
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
-----------
The terms of the Debt Securities, including, where applicable, the specific
designation, aggregate principal amount, denominations, maturity, interest rate
or rates (which may be fixed or variable), if any, and time of payment of any
such interest, terms for redemption at the option of the Company or any
holders, if any, terms for sinking fund payments, if any, the initial public
offering price or prices, the names of any underwriters or agents, the
principal amounts, if any, to be purchased by underwriters and the compensation
of such underwriters or agents and the other terms in connection with the
offering and sale of the Debt Securities in respect of which this Prospectus is
being delivered, will be set forth in an accompanying Prospectus Supplement
(the "Prospectus Supplement").
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THE DATE OF THIS PROSPECTUS IS , 1995.
<PAGE>
ADDITIONAL INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "Exchange Act") and, in accordance therewith, files
reports and other information with the Securities and Exchange Commission (the
"Commission"). Such reports and other information can be inspected and copied
at the public reference facilities maintained by the Commission at Room 1024,
450 Fifth Street, N.W., Washington, D.C. 20549 and at the following Regional
Offices of the Commission: New York Regional Office, Seven World Trade Center,
New York, New York 10048 and Chicago Regional Office, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661. Copies of such material can be obtained
at prescribed rates by writing to the Commission, Public Reference Section,
450 Fifth Street, N.W., Washington, D.C. 20549.
This Prospectus constitutes a part of a Registration Statement filed by the
Company with the Commission under the Securities Act of 1933. This Prospectus
omits certain of the information contained in the Registration Statement, and
reference is hereby made to the Registration Statement and to the exhibits
relating thereto for further information with respect to the Company and the
Debt Securities. Any statements contained herein concerning the provisions of
any document are not necessarily complete, and in each instance, reference is
made to the copy of such document filed as an exhibit to the Registration
Statement or otherwise filed with the Commission. Each such statement is
qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There is hereby incorporated in this Prospectus by reference the following
documents which have been filed with the Commission (File No. 2-97411):
(1) The Company's Annual Report on Form 10-K for the year ended December
31, 1994
(2) The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1995 and June 30, 1995; and
(3) The Company's Current Reports on Form 8-K dated June 28, 1995 and
July 11, 1995.
All documents filed with the Commission pursuant to sections 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Debt Securities shall be
deemed to be incorporated by reference into this Prospectus and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this Prospectus to the
extent that any statement contained herein or in any subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, on written or oral request of such person, a
copy of any or all of the foregoing documents which have been or may be
incorporated in this Prospectus by reference, other than exhibits to such
documents, unless such exhibits shall have been specifically incorporated by
reference into such documents. Requests for such copies should be directed to
the Secretary, Pitney Bowes Credit Corporation, 201 Merritt Seven, Norwalk,
Connecticut 06856-5151, telephone (203) 846-5600.
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THE COMPANY
Pitney Bowes Credit Corporation (the "Company" or "PBCC") operates primarily
in the United States and is a wholly-owned subsidiary of Pitney Bowes Inc.
("PBI" or "Pitney Bowes"). The Company is principally engaged in the business
of providing lease financing for PBI products as well as other financial
services for the commercial and industrial markets.
PBI, a Delaware corporation organized in 1920, is listed on the New York
Stock Exchange. Headquartered in Stamford, Connecticut, PBI and its affiliates
employ approximately 28,800 people throughout the United States, Europe,
Canada and other countries. PBI manufactures and markets products, and
provides services in two industry segments: business equipment and services,
and financial services.
The Internal Financing Division of PBCC provides marketing support to PBI
and PBI divisions. Equipment leased or financed for these Internal Division
programs include mailing, paper handling and shipping equipment, scales,
copiers, facsimile units and other office and business equipment. The
transaction size for this equipment generally ranges from $500 to $500,000
although historically most transactions have occurred in the $1,000 to $10,000
range, with lease terms generally from 36 to 60 months.
PBCC's External Financing Division operates in the large-ticket external
market by offering financial services to its customers for products not
manufactured or sold by PBI or its subsidiaries. Products financed through
these External Division programs include both commercial and non-commercial
aircraft, over-the-road trucks and trailers, railcars and locomotives, and
high-technology equipment such as data processing and communications
equipment. Transaction sizes (other than aircraft leases) range from $50,000
to several million dollars, with lease terms generally from 36 to 180 months.
Aircraft transaction sizes range from $1 million to $27 million for non-
commercial aircraft and up to $43 million for commercial aircraft. Lease terms
are generally between two and 12 years for non-commercial aircraft and from 10
to 25 years for commercial aircraft. The Company has also participated in nine
commercial aircraft leveraged lease transactions. The Company's investment in
these transactions totaled $227.4 million as of December 31, 1994. The
Company's External Financing Division has also participated, on a select
basis, in certain other types of financial transactions including syndication
of certain lease transactions, senior secured loans in connection with
acquisition, leveraged buyout and recapitalization financing, and certain
project financings.
PBCC's External Financing Division is also responsible for managing Pitney
Bowes Real Estate Financing Corporation ("PREFCO"), a wholly-owned subsidiary
of PBCC providing lease financing for commercial real estate properties. Both
PBCC and Pitney Bowes provide capital for PREFCO's investments.
The Company's External Financing Division is also responsible for managing
the Custom Vendor Finance ("CVF") programs. CVF provides funding source
financing programs for non-affiliated vendors selling equipment with a cost
generally in the range of $5,000 to $250,000.
Colonial Pacific Leasing Corporation ("Colonial Pacific"), a wholly-owned
subsidiary of PBCC, operates in the small-ticket external market and is
located near Portland, Oregon. Colonial Pacific provides lease financing
services to small- and medium-sized businesses throughout the United States,
marketing exclusively through a nationwide network of brokers and independent
lessors. Transaction size ranges from $2,000 to $250,000, with lease terms
generally from 24 to 60 months.
Atlantic Mortgage & Investment Corporation ("AMIC"), a wholly-owned
subsidiary of PBCC, located in Jacksonville, Florida, specializes in servicing
residential first mortgages for a fee. AMIC does not generally originate,
hold, or assume the credit risk on mortgages it services. In return for a
servicing
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fee, AMIC provides billing services and collects principal, interest, and tax
and insurance escrow payments for mortgage investors such as the Federal
National Mortgage Association, Federal Home Loan Mortgage Corporation,
Government National Mortgage Association and private investors.
Substantially all lease financing is done through full payout leases or
security agreements whereby PBCC recovers its costs plus a return on
investment over the initial, noncancelable term of the contract. The Company
has also entered into a limited amount of leveraged and operating lease
structures.
Pursuant to an Amended and Restated Finance Agreement (the "Finance
Agreement") between PBI and PBCC, PBI has agreed to retain, directly or
indirectly, ownership of the majority of the outstanding shares of capital
stock of the Company having voting power in the election of directors, to make
payments, if necessary, to enable the Company to maintain a ratio of income
available for fixed charges to fixed charges of 1.25 as of the end of each
fiscal quarter, and to provide or cause to be provided funds sufficient to
make timely payment of any principal, interest or premium in respect of any of
the Company's indebtedness for borrowed money that has the benefit of the
Finance Agreement if the Company is unable to make such payment. The Finance
Agreement may not be amended, in any material respect, or terminated while the
Company has any series of Debt Securities or any series of other debt
outstanding that is, by its express terms, entitled to the provisions of the
Finance Agreement unless at least two nationally recognized statistical rating
agencies that have been rating such series of debt, confirm that their ratings
for such series of debt will not be downgraded as a result or the holders of
at least a majority of the outstanding principal amount of such series of debt
have consented in writing. See "Description of Debt Securities-Certain
Restrictions-Finance Agreement".
PBCC, incorporated in Delaware in 1976, began business in 1977. Its
executive offices are located at 201 Merritt Seven, Norwalk, Connecticut
06856-5151 (telephone 203-846-5600).
USE OF PROCEEDS AND FUNDING POLICY
Except as may be set forth in the Prospectus Supplement, the Company intends
to use the net proceeds from the sales of the Debt Securities to repay short-
term debt, to acquire finance contracts, to reduce or retire from time to time
other indebtedness and for other general corporate purposes including possible
acquisitions. The precise amount and timing of sales of the Debt Securities
will be dependent on the level of finance contracts acquired by the Company,
market conditions and the availability and cost of other funds to the Company.
PBCC's borrowing strategy is to use a balanced mix of maturities, variable
and fixed rate debt and interest rate swaps to control its sensitivity to
interest rate volatility. The Company may borrow through the sale of
commercial paper, under its confirmed bank lines of credit, and by private and
public offers of intermediate or long-term debt securities. The Company may
also issue up to $500 million in Debt Securities having maturities ranging
from nine months to 30 years.
While the Company's funding strategy of balancing short-term and long-term
borrowings and variable- and fixed-rate debt may reduce sensitivity to
interest rate changes over the long-term, effective interest costs have been
and will continue to be impacted by interest rate changes. The Company
periodically adjusts prices on its new leasing and financing transactions to
reflect changes in interest rates; however, the impact of these rate changes
on revenue is usually less immediate than the impact on borrowing costs.
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RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of the Company's earnings to fixed
charges, for the periods indicated:
<TABLE>
<CAPTION>
THREE MONTHS
ENDED JUNE 30 YEARS ENDED DECEMBER 31,
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1995 1994 1994 1993 1992 1991 1990
----- ----- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C>
2.08x 2.43x 2.43x 2.37x 2.25x 1.88x 1.79x
</TABLE>
For the purpose of computing the ratio of earnings to fixed charges,
earnings have been calculated by adding to earnings before income taxes the
amount of fixed charges. Fixed charges consist of interest on debt and a
portion of net rental expense deemed to represent interest.
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and provisions of
the Debt Securities to which any Prospectus Supplement may relate. The
particular terms of the Debt Securities offered by any Prospectus Supplement
and the extent, if any, to which such general provisions may apply to the Debt
Securities so offered will be described in the Prospectus Supplement relating
to such Debt Securities.
Offered Debt Securities (as defined below) are to be issued under an
Indenture dated as of November 1, 1995 (the "Indenture"), between the Company
and Chemical Bank, as Trustee. A copy of the form of Indenture is filed as an
exhibit to the Registration Statement of which this Propectus is a part. The
statements under this caption relating to the Debt Securities and the
Indenture are summaries and do not purport to be complete. Such summaries make
use of terms defined in the Indenture and are qualified in their entirety by
express reference to the Indenture and the cited provisions thereof, the form
of which is filed as an exhibit to the Registration Statement or otherwise
incorporated by reference herein. The term "Securities" as used under this
caption, refers to all Securities which may be issued under the Indenture and
includes the Debt Securities.
GENERAL
The Debt Securities will be unsecured obligations of the Company and will
rank on a parity with all other unsecured unsubordinated indebtedness of the
Company. As of the date of this Prospectus, no Securities have been issued
under the Indenture. The Indenture does not limit the aggregate principal
amount of Securities which may be issued thereunder and provides that
Securities may be issued thereunder from time to time in one or more series.
Reference is made to the Prospectus Supplement relating to the particular
Debt Securities offered thereby (the "Offered Debt Securities") for the
following terms of the Offered Debt Securities: (1) the title of the Offered
Debt Securities; (2) any limit on the aggregate principal amount of the
Offered Debt Securities; (3) the date or dates on which the Offered Debt
Securities will mature; (4) the rate or rates (which may be fixed or variable)
per annum at which the Offered Debt Securities will bear interest, if any, and
the date or dates from which any such interest will accrue; (5) the dates on
which any such interest will be payable and the regular record dates for such
interest payment dates; (6) the place or places where principal of (and
premium, if any) and any interest on Offered Debt Securities shall be payable;
(7) any mandatory or optional sinking fund or analogous provisions; (8) if
applicable, the price at which, the periods within which, and the terms and
conditions upon which the Offered Debt Securities may, pursuant to any
optional or mandatory redemption provisions, be redeemed at the option of the
Company; (9) if applicable, the terms and conditions upon which the Offered
Debt
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Securities may be repayable prior to the final maturity at the option of the
holders thereof (which option may be conditional); (10) whether the Offered
Debt Securities are to be issued in whole or in part in permanent global form,
without coupons, the Depositary for the permanent global security and the
circumstances under which such global security may be exchanged for Securities
registered, and any transfer of such global security may be registered in the
name of persons other than the Depositary; (11) the denominations in which
Offered Debt Securities shall be issuable if other than $1,000 and any
integral multiple thereof; (12) the portion of the principal amount of the
Offered Debt Securities, if other than the principal amount thereof, payable
upon acceleration of maturity thereof; (13) the currency or composite
currencies of payment of principal of and premium, if any, and any interest on
the Offered Debt Securities; (14) if the principal of or any premium or
interest on any of the Offered Debt Securities is to be payable, at the
election of the Company or the Holder thereof, in one or more currencies or
currency units other than those in which such Securities are stated to be
payable, the currency, currencies or currency units in which payment of any
such amount as to which such election is made will be payable, the periods
within which and the terms and conditions upon which such election is to be
made and the amount so payable (or the manner in which such amount is to be
determined); (15) if the principal amount payable at the Stated Maturity of
any of the Offered Debt Securities will not be determinable as of any one or
more dates prior to the Stated Maturity, the amount which will be deemed to be
such principal amount as of any such date for any purpose, including the
principal amount thereof which will be due and payable upon any Maturity other
than the Stated Maturity or which will be deemed to be Outstanding as of any
such date (or, in any such case, the manner in which such deemed principal
amount is to be determined); (16) any index or formula used to determine the
amount of payments of principal of and premium, if any, and any interest on
the Offered Debt Securities; (17) the application, if any, of Section 402 or
Section 1008, relating to defeasance and discharge, defeasance of certain
covenants, and certain conditions thereto; and (18) any other terms of the
Offered Debt Securities. (Section 301)
Unless otherwise indicated in the Prospectus Supplement relating thereto,
the Offered Debt Securities are to be issued as registered securities without
coupons in denominations of $1,000 or any integral multiple of $1,000.
(Section 302) No service charge will be made for any transfer or exchange of
such Offered Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. (Section 305)
Securities may be issued under the Indenture as Original Issue Discount
Securities to be sold at a substantial discount below their stated principal
amount. Federal income tax consequences and other consideration applicable to
Offered Debt Securities will be described in the Prospectus Supplement
relating thereto. (Section 301)
CERTAIN DEFINITIONS
The term "Secured Debt" means indebtedness for money borrowed which is
secured by a mortgage, pledge, lien, security interest or encumbrance on any
property of any character of the Company or any Subsidiary.
The term "Subsidiary" means (i) with respect to the Company, any corporation
of which more than 50% of the outstanding voting stock is owned, directly or
indirectly, by the Company or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries, and (ii) with respect to PBI, any
corporation of which more than 50% of the outstanding voting stock is owned,
directly or indirectly, by PBI or by one or more other Subsidiaries, or by PBI
and one or more other Subsidiaries. For the purposes of such definition,
"voting stock" means stock which ordinarily has voting power for
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the election of directors, whether at all times or only so long as no senior
class of stock has such voting power by reason of any contingency.
The term "Wholly-owned Subsidiary" means any Subsidiary of which, at the
time of determination, all of the outstanding voting stock (other than
directors' qualifying shares) is owned by the Company or PBI, as the case may
be, directly and/or indirectly. For purposes of this definition, "voting
stock" has the same meaning as under the definition of "Subsidiary".
The term "Consolidated Net Tangible Assets" means as of any particular time
the aggregate amount of assets after deducting therefrom (a) all current
liabilities (excluding any such liability that by its terms is extendable or
renewable at the option of the obligor thereon to a time more than 12 months
after the time as of which the amount thereof is being computed) and (b) all
goodwill, excess of cost over assets acquired, patents, copyrights,
trademarks, trade names, unamortized debt discount and expense and other like
intangibles, all as shown in the most recent consolidated financial statements
of the Company and its Subsidiaries prepared in accordance with generally
accepted accounting principles.
The term "U.S. Government Obligations" means securities which are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in either case
are not callable or redeemable at the option of the issuer thereof, and shall
also include a depository receipt issued by a bank or trust company as
custodian with respect to any such U.S. Government Obligations or a specific
payment of interest on or principal of any such U.S. Government Obligation
held by such custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of interest on or principal of
the U.S. Government Obligation evidenced by such depository receipt. (Section
101)
CERTAIN RESTRICTIONS
Finance Agreement. The Indenture provides that the Company (1) will observe
and perform in all material respects all covenants or agreements of the
Company contained in the Finance Agreement; and (2), without the consent of
the holders of not less than a majority in principal amount of outstanding
Securities affected, will not waive compliance under, amend or terminate the
Finance Agreement; provided, however, that the Finance Agreement may be
amended or terminated if such amendment or termination would not have a
material adverse effect on the holders of any outstanding Securities of any
series or if at least two nationally recognized statistical rating agencies
that have rated any outstanding Securities confirm that their ratings for such
Securities will not be downgraded as a result. (Section 1006)
Restrictions on Liens and Encumbrances. The Company will not create, assume
or guarantee any Secured Debt and will not permit any Subsidiary to create,
assume, or guarantee any Secured Debt without, in any such case, making, or
causing such Subsidiary to make, effective provision for securing the
Securities (and, if the Company shall so determine, any other indebtedness of
or guaranteed by the Company or such Subsidiary), equally and ratably with
such Secured Debt.
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This covenant will not apply to debt secured by (i) certain mortgages,
pledges, liens, security interests or encumbrances in connection with the
acquisition, construction or improvement of any fixed asset or other physical
or real property by the Company or any Subsidiary, (ii) mortgages, pledges,
liens, security interests or encumbrances on property existing at the time of
acquisition thereof, whether or not assumed by the Company or any Subsidiary,
(iii) mortgages, pledges, liens, security interests or encumbrances on
property of a corporation existing at the time such corporation is merged into
or consolidated with the Company or any Subsidiary, or at the time of a sale,
lease or other disposition of the properties of a corporation or firm as an
entirety or substantially as an entirety to the Company or any Subsidiary,
(iv) mortgages, including mortgages, pledges, liens, security interests or
encumbrances, on property of the Company or any Subsidiary in favor of the
United States of America, any State thereof, or any other country, or any
agency, instrumentality or political subdivision thereof, to secure certain
payments pursuant to any contract or statute or to secure indebtedness
incurred for the purpose of financing all or any part of the purchase price or
the cost of construction or improvement of the property subject to such
mortgages, (v) certain extensions, renewals or replacements (or successive
extensions, renewals or replacements), in whole or in part, of any mortgage,
pledge, lien or encumbrance referred to in the foregoing clauses (i) to (iv),
inclusive, (vi) any mortgage, pledge, lien, security interest or encumbrance
securing indebtedness owing by the Company to one or more Wholly-owned
Subsidiaries, (vii) any lien, chattel mortgage, security agreement, and other
title retention agreement on tangible personal property, resulting from the
Company, any Subsidiary, or an owner-trustee representing either of the
foregoing acquiring or agreeing to acquire the same property for substantially
concurrent leasing or financing to third parties in Leveraged Leases (as
defined), or Partnerships (as defined), or (viii) any liens to secure non-
recourse obligations in connection with the Company's or a Subsidiary's
engaging in Leveraged Lease or single-investor lease transactions.
Notwithstanding the above, the Company may, without securing the Debt
Securities, create, assume or guarantee Secured Debt which would otherwise be
subject to the forgoing restrictions, provided that, after giving effect
thereto, the aggregate amount of all Secured Debt then outstanding (not
including Secured Debt permitted under the foregoing exceptions) at such time
does not exceed 10% of Consolidated Net Tangible Assets. (Sections 101 and
1007)
RESTRICTIONS ON CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
The Indenture provides that no consolidation or merger of the Company with
or into any other corporation and no conveyance or transfer of its property
substantially as an entirety to another corporation may be made (1) unless (i)
the surviving corporation or acquiring Person shall be a corporation organized
and existing under the laws of the United States of America, any State
thereof, or the District of Columbia and shall expressly assume the payment of
principal and any premium and interest on all the Securities and the
performance of every covenant in the Indenture; (ii) immediately after giving
effect to such transaction, no Event of Default, and no event which after
notice or lapse of time would become an Event of Default, shall have happened
and be continuing; and (iii) the Company has delivered the required Officers'
Certificate and Opinion of Counsel to the Trustee; or (2) if, as a result
thereof, any assets of the Company would become subject to a mortgage or other
encumbrance which is not expressly excluded from the restrictions or permitted
by the provisions of the Indenture (see "Certain Restrictions-Restrictions on
Liens and Encumbrances") unless all the outstanding Securities are secured by
a lien upon such assets equal with (or, at the Company's option, prior to)
that of the indebtedness secured by such mortgage or encumbrance. (Section
801)
THE TRUSTEE
The Indenture contains certain limitations on the right of the Trustee, as a
creditor of the Company, to obtain payment or claims in certain cases, or to
realize on certain property received in respect of any such claim as security
or otherwise. (Section 613)
8
<PAGE>
Chemical Bank, the Trustee under the Indenture, maintains a banking
relationship with the Company and PBI.
EVENTS OF DEFAULT AND NOTICES THEREOF
The following events are defined in the Indenture as "Events of Default"
with respect to Securities of any series: (a) failure to pay principal of or
premium, if any, on any Security of that series when due; (b) failure to pay
any interest on any Security of that series when due, continued for 30 days;
(c) failure to deposit any sinking fund payment, when due, in respect of any
Security of that series; (d) failure to perform any other covenant of the
Company in the Indenture (other than a covenant included in the Indenture
solely for the benefit of a series of Securities other than that series),
continued for 90 days after written notice given to the Company by the Trustee
or the holders of at least 25% in principal amount of the Securities
outstanding and affected thereby; (e) certain events in bankruptcy, insolvency
or reorganization of the Company; and (f) any other Event of Default provided
with respect to Securities of such series. (Section 501)
If an Event of Default under clause (a), (b), (c), (d) (if less than all
series of Securities are affected thereby) or (f) above with respect to
Securities of any series at the time outstanding shall occur and be
continuing, either the Trustee or the holders of at least 25% in principal
amount of the outstanding Securities of each such series voting separately, in
the case of clause (a), (b), (c) or (f), or of all such series effected
thereby, voting as one class, in the case of (d) above, may declare the
principal amount (or, if the Securities of any such series are Original Issue
Discount Securities, such portion of the principal amount as may be specified
in the terms of such series) of all Securities of such series to be due and
payable immediately. If an Event of Default under clause (d) (if all series of
Securities are affected thereby) or (e) above shall occur and be continuing,
either the Trustee or the holders of at least 25% in principal amount of all
of the outstanding Securities may declare the principal amount (or, if the
Securities of any series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of such series) of
all outstanding Securities to be due and payable immediately. Under certain
circumstances the holders of a majority in aggregate principal amount of
outstanding Securities of each series or of all series of Securities, voting
as a class, as the case may be, may rescind or annul such declaration and its
consequences. (Section 502) In the event the Company takes the necessary
action to enable it to omit to comply with certain covenants of the Indenture
as described under "Defeasance of Certain Covenants" and the Securities are
declared due and payable because of the occurrence of an Event of Default, the
amount of money and U.S. Government Obligations on deposit with the Trustee
will be sufficient to pay amounts due on the Securities at the time of their
Stated Maturity but may not be sufficient to pay amounts due on the Securities
at the time of the acceleration resulting from such Event of Default. (Section
1008) However, the Company shall remain liable for such payments.
Reference is made to the Prospectus Supplement relating to any series of
Offered Debt Securities which are Original Issue Discount Securities for the
particular provisions relating to the principal amount of such Original Issue
Discount Securities due on acceleration upon the occurrence of an Event of
Default and the continuation thereof.
The Indenture provides that the Trustee, within 90 days after the occurrence
of a default with respect to any series of Securities shall give to the
holders of Securities of that series, notice of all uncured defaults known to
it (the term default to mean the Events of Default specified above without
grace periods), provided that, except in the case of default in the payment of
principal of (or premium, if any) or any interest, or sinking fund
installment, if any, on any Security, the Trustee shall be protected in
withholding such notice if it in good faith determines that the withholding of
such notice is in the interest of the holders of Securities. (Section 602)
9
<PAGE>
The Company will be required to furnish to the Trustee annually a statement
by certain officers of the Company to the effect that to the best of their
knowledge the Company is not in default in the fulfillment of any of its
obligations under the Indenture or, if there has been a default in the
fulfillment of any such obligation, specifying each such default. (Section
1009)
The holders of a majority in principal amount of the outstanding Securities
of any series will have the right, subject to certain limitations, to direct
the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee with respect to the Securities of such series, and, in certain
circumstances, the holders of not less than a majority in aggregate principal
amount of outstanding Securities of any series (voting as a separate class) or
the holders of not less than a majority in aggregate principal amount of
outstanding Securities of all Series (voting as a class), may waive certain
defaults. (Sections 512 and 513)
The Indenture provides that in case an Event of Default shall occur and be
continuing, the Trustee shall exercise such of its rights and powers under the
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of
his own affairs. (Section 601) Subject to such provisions, the Trustee will be
under no obligation to exercise any of its rights or powers under the
Indenture at the request of any of the holders of Securities unless they shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request. (Section 603)
MODIFICATION OF THE INDENTURE
Modifications and amendments of the Indenture may be made by the Company and
the Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the outstanding Securities issued under the
Indenture which are affected by the modification or amendment, provided that
no such modification or amendment may, without the consent of each holder of
each such outstanding Security affected thereby, (1) change the stated
maturity date of the principal of (or premium, if any) or any installment of
interest, if any, on any such Security; (2) reduce the principal amount of (or
premium, if any) or the interest, if any, on any such Security or the
principal amount due upon acceleration of an Original Issue Discount Security;
(3) change the place or currency of payment of principal (or premium, if any)
or interest, if any, on any such Security; (4) impair the right to institute
suit for the enforcement of any such payment on or with respect to any such
Security; (5) reduce the above-stated percentage of holders of Securities
necessary to modify or amend the Indenture; or (6) modify the foregoing
requirements or reduce the percentage of holders of outstanding Securities
necessary to waive compliance with certain provisions of the Indenture or for
waiver of certain defaults. (Section 902)
DEFEASANCE AND DISCHARGE
The Indenture provides that the Company may specify that, with respect to
the Securities of a certain series, it will be discharged from any and all
obligations in respect of such Securities (except for certain obligations to
register the transfer or exchange of Securities, to replace stolen, lost or
mutilated Securities, to maintain paying agencies and hold monies for payment
in trust) upon the deposit with the Trustee, in trust, of money and/or U.S.
Government Obligations which through the payment of interest and principal
thereof in accordance with their terms will provide money in an amount
sufficient to pay any installment of principal (and premium, if any) and any
interest on and any mandatory sinking fund payments in respect of such
Securities on the stated maturity of such payments in accordance with the
terms of the Indenture and such Securities. Such a trust may only be
established if the Company has delivered to the Trustee an Opinion of Counsel
acceptable to the Trustee (who may be counsel to the Company) to the effect
that, among other things, establishment of the trust would not cause the
Securities of any such series listed on any nationally-recognized
10
<PAGE>
securities exchange to be de-listed as a result thereof and an Officer's
Certificate or Opinion of Counsel to the effect that the Company has received
from or there has been published by, the United States Internal Revenue
Service a ruling to the effect that such a defeasance and discharge will not
be deemed, or result in, a taxable event with respect to holders of such
Securities. (Section 402) The designation of such provisions, Federal income
tax consequences and other considerations applicable thereto will be described
in the Prospectus Supplement relating thereto.
DEFEASANCE OF CERTAIN COVENANTS
The Indenture provides that the Company may specify that, with respect to
the Securities of a certain series, the Company may omit to comply with
certain restrictive covenants described in Sections 1006 (Maintenance of
Finance Agreement) and 1007 (Restriction on Creation of Secured Debt) of the
Indenture and with any other negative or restrictive covenant of the Company
(other than those contained in the Indenture) applicable to the Securities of
any series if the Company deposits with the Trustee money and/or U.S.
Government Obligations (as defined) which through the payment of interest and
principal thereof in accordance with their terms will provide money in an
amount sufficient to pay principal (and premium, if any) and any interest on
and any mandatory sinking fund payments in respect of such Securities on the
stated maturity of such payments in accordance with the terms of the Indenture
and such Securities. The obligations of the Company under the Indenture other
than with respect to the covenants referred to above shall remain in full
force and effect. The Company will also be required to deliver to the Trustee
an Opinion of Counsel (who may be counsel to the Company) to the effect that
the deposit and related covenant defeasance will not be deemed, or result in,
a taxable event with respect to holders of the Securities. (Section 1008) The
designation of such provisions, Federal income tax consequences and other
considerations applicable thereto will be described in the Prospectus
Supplement relating thereto.
PLAN OF DISTRIBUTION
The Company may sell Debt Securities to one or more underwriters for public
offering and sale by them or may sell Debt Securities to investors directly or
through agents. The Prospectus Supplement with respect to any sale of Debt
Securities will set forth the terms of the offering of such Debt Securities,
including the name or names of any underwriters, the purchase price of the
Debt Securities and the proceeds to the Company from such sale, any
underwriting discounts and other items constituting underwriters'
compensation, any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers and any securities
exchanges on which the Debt Securities may be listed.
If underwriters are used in a sale of any Debt Securities, such Debt
Securities will be acquired by the underwriters for their own account and may
be resold from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. The Debt Securities may be offered to the public through
underwriting syndicates represented by managing underwriters. Unless otherwise
set forth in the Prospectus Supplement, the obligations of the underwriters to
purchase the Debt Securities will be subject to certain conditions precedent
and the underwriters will be obligated to purchase all the Debt Securities if
any are purchased. Any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers may be changed from time
to time.
The Debt Securities may be sold directly by the Company or through agents
designated by the Company from time to time. Any such agent involved in the
offer or sale of the Debt Securities will be
11
<PAGE>
named, and any commissions payable by the Company to such agent will be set
forth, in the Prospectus Supplement. Unless otherwise indicated in the
Prospectus Supplement, any such agent will be acting on a best efforts basis
for the period of its appointment.
If so indicated in the Prospectus Supplement, the Company will authorize
agents, underwriters or dealers to solicit offers by certain specified
institutions to purchase Debt Securities from the Company at the public
offering price set forth in the Prospectus Supplement pursuant to delayed
delivery contracts providing for payment and delivery on a specified date in
the future. Such contracts will be subject only to those conditions set forth
in the Prospectus Supplement and the Prospectus Supplement will set forth the
commission payable for solicitation of such contracts.
Agents and underwriters may be entitled, under agreements entered into with
the Company, to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act of 1933, or to
contribution with respect to payments which the agents or underwriters may be
required to make in respect thereof. Agents and underwriters may be customers
of, engage in transactions with, or perform services for, the Company in the
ordinary course of business.
Each issue of Offered Debt Securities will be a new issue of securities with
no established trading market. Any underwriters to whom Offered Debt
Securities are sold by the Company for public offering and sale may make a
market in such Offered Debt Securities, but such underwriters will not be
obligated to do so and may discontinue any market making at any time without
notice. No assurance can be given as to the liquidity of the trading market
for any Offered Debt Securities.
VALIDITY OF DEBT SECURITIES
The validity of the Debt Securities will be passed upon for the Company by
Keith H. Williamson, Vice President, Secretary and General Counsel of the
Company and by Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York
10017, and, unless otherwise indicated in a Prospectus Supplement relating to
Offered Debt Securities, for the underwriters or agents by Sullivan &
Cromwell, 125 Broad Street, New York, New York 10004.
EXPERTS
The financial statements incorporated in this Prospectus by reference to the
Annual Report on Form 10-K of Pitney Bowes Credit Corporation for the year
ended December 31, 1994 have been so incorporated in reliance on the report of
Price Waterhouse LLP, independent accountants, given on the authority of said
firm as experts in auditing and accounting.
12
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee............... $215,517
Trustee's Fees and Expenses....................................... 45,000
Printing and Engraving Expenses................................... 160,000
Rating Agency Fees................................................ 210,000
Accounting Fees and Expenses...................................... 70,000
Legal Fees and Expenses........................................... 280,000
Blue Sky and Legality Fees and Expenses........................... 20,000
Miscellaneous Expenses............................................ 20,000
----------
Total........................................................... $1,020,517
==========
</TABLE>
- --------
The above items are estimates except the registration fee.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware allows
for indemnification of any person who has been made, or threatened to be made,
a part to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative by reason of the fact
that he is or was serving as a director, officer, employee or agent of the
registrant or by reason of the fact that he is or was serving at the request of
the registrant as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise. In certain
circumstances, indemnity may be provided against expenses (including attorney's
fees), judgments, fines and amounts paid in settlement if the person acted in
good faith and in the manner reasonably believed by him to be in, or not
opposed to, the best interests of the registrant and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. In any proceeding by or in the right of the registrant, no
indemnification may be made if the person is found to be liable to the
corporation, unless and only to the extent the court in which the proceeding is
brought or the Delaware Court of Chancery orders such indemnification.
Section 102(b)(7) of the General Corporation Law of the State of Delaware
provides that a certificate of incorporation may contain a provision
eliminating or limiting the personal liability of a director to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director provided that such provision shall not eliminate or limit the
liability of a director (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 (relating to liability for unauthorized acquisitions or
redemptions of, or dividends on, capital stock) of the Delaware General
Corporation Law, or (iv)for any transaction from which the director derived an
improper personal benefit. The Company's Certificate of Incorporation does not
currently contain such a provision.
The foregoing statements are specifically made subject to the detailed
provisions of the General Corporation Law of Delaware.
The By-Laws of PBCC provide that PBCC shall indemnify to the full extent
permitted by law any person made or threatened to be made a party to any
action, suit or proceeding whether criminal, civil, administrative or
investigative, by reason of the fact that he, his testator or intestate is or
was a director, officer or employee of PBCC or any predecessor of PBCC or
serves or served any other enterprise as a director, officer or employee at the
request of PBCC or any predecessor of PBCC.
II-1
<PAGE>
PBI has a directors and officers liability insurance policy that will
reimburse PBCC for any payments that it shall make to directors and officers
pursuant to law or the indemnification provisions of its By-Laws and that will,
subject to certain exclusions contained in the policy, further pay any other
costs, charges and expenses and settlements and judgments arising from any
proceeding involving any director or officer of PBCC in his past or present
capacity as such, and for which he may be liable, except as to any liabilities
arising from acts that are deemed to be uninsurable.
The provisions contained in the Underwriting Agreement and Distribution
Agreement pursuant to which the registrant agrees to indemnify underwriters and
agents, as the case may be, and each person, if any, who controls any
underwriters or agents and filed as part of Exhibit 1, are incorporated herein
by reference.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of PBCC
pursuant to the foregoing provisions, PBCC has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against
public policy as expressed in the Securities Act of 1933 and is, therefore
unenforceable.
ITEM 16. EXHIBITS (NUMBERED IN ACCORDANCE WITH ITEM 601 OF REGULATION S-K).
<TABLE>
<CAPTION>
STATUS OR
REG. S-K INCORPORATION
EXHIBITS DESCRIPTION BY REFERENCE
- -------- ----------- -------------
<S> <C> <C>
1(a) --Form of Underwriting Agreement Exhibit 1(a)
1(b) --Form of Distribution Agreement Exhibit 1(b)
4(a) --Indenture dated as of November 1, 1995 between Pitney Bowes Credit
Corporation and Chemical Bank, as Trustee Exhibit 4(a)
4(b) --Amended and Restated Finance Agreement dated as of June 12, 1995
between Pitney Bowes Credit Corporation and Pitney Bowes Inc. Exhibit 4(b)
5 --Opinion re legality Exhibit 5
12 --Computation of Ratio of Earnings to Fixed Charges of Pitney Bowes
Credit Corporation Exhibit 12
23(a) --Consent of Price Waterhouse LLP Exhibit 23(a)
23(b) --Consent of Keith H. Williamson, Esq. (included in opinion filed as
Exhibit 5) Exhibit 23(b)
23(c) --Consent of Davis Polk & Wardwell Exhibit 23(c)
24 --Power of Attorney (contained on signature page) *
25 --Statement of eligibility of trustee *
</TABLE>
- --------
* Previously filed
ITEM 17. UNDERTAKINGS.
Pitney Bowes Credit Corporation hereby undertakes:
(1) To file during any period in which offers or sales are being made of
the securities registered hereby, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the Prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement; and
II-2
<PAGE>
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
Provided, however, that paragraphs (i) and (ii) do not apply if the
registration statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to the Securities
Exchange Commission by the Company pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference
in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the Securities offered
therein, and the offering of such Securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the Securities being registered which remain unsold at the
termination of the offering.
(4) That, for the purpose of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(5) That, for purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as
part of this registration statement in reliance upon Rule 430A and
contained in the form of a prospectus filed by the registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to
be part of this registration statement as of the time it was declared
effective.
(6) That, for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form
of prospectus shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers, and controlling persons of the
Company pursuant to provisions referred to in Item 15 or otherwise, the Company
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Act and is therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Company of expenses incurred or paid by a director,
officer, or controlling person of the Company in the successful defense of any
action, suit, or proceeding) is asserted by such director, officer or
controlling person in connection with the Securities being registered, the
Company will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
II-3
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS AMENDMENT TO THE
REGISTRATION STATEMENT (REGISTRATION NO. 33-62485) TO BE SIGNED ON ITS BEHALF
BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF NORWALK, STATE OF
CONNECTICUT, ON THIS 2ND DAY OF NOVEMBER, 1995.
Pitney Bowes Credit Corporation
/s/ G. Kirk Hudson
By __________________________________
G. KIRK HUDSON
VICE PRESIDENT-FINANCE
(PRINCIPAL FINANCIAL OFFICER)
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT TO
THE REGISTRATION STATEMENT (REGISTRATION NO. 33-62485) HAS BEEN SIGNED BY THE
FOLLOWING PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
SIGNATURES TITLE DATE
President and Chief
* Executive Officer-- November 2,
- ------------------------------------- Director 1995
MATTHEW S. KISSNER
/s/ G. Kirk Hudson Vice President--
- ------------------------------------- Finance (Principal November 2,
G. KIRK HUDSON Financial Officer) 1995
Controller
* (Principal November 2,
- ------------------------------------- Accounting Officer) 1995
THOMAS P. SANTORA
Director
* November 2,
- ------------------------------------- 1995
GEORGE B. HARVEY
Director
* November 2,
- ------------------------------------- 1995
CARMINE F. ADIMANDO
Director
* November 2,
- ------------------------------------- 1995
MARC C. BRESLAWSKY
II-4
<PAGE>
SIGNATURES TITLE DATE
Director
* November 2,
- ------------------------------------- 1995
MICHAEL J. CRITELLI
Director
* November 2,
- ------------------------------------- 1995
HARRY W. NEINSTEDT
Director
* November 2,
- ------------------------------------- 1995
JOHN N.D. MOODY
Director
* November 2,
- ------------------------------------- 1995
DOUGLAS A. RIGGS
/S/ G. KIRK HUDSON November 2,
*BY_____________________________ 1995
G. KIRK HUDSON
ATTORNEY-IN-FACT
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBITS DESCRIPTION PAGE
-------- ----------- ----
<C> <S> <C>
1(a) --Form of Underwriting Agreement Exhibit 1(a)
1(b) --Form of Distribution Agreement Exhibit 1(b)
4(a) --Indenture dated as of November 1, 1995 between
Pitney Bowes Credit Corporation and Chemical Bank,
as Trustee Exhibit 4(a)
4(b) --Amended Finance Agreement dated as of June 12, 1995
between Pitney Bowes Credit Corporation and Pitney
Bowes Inc. Exhibit 4(b)
5 --Opinion re legality Exhibit 5
12 --Computation of Ratio of Earnings to Fixed Charges
of Pitney Bowes Credit Corporation Exhibit 12
23(a) --Consent of Price Waterhouse LLP Exhibit 23(a)
23(b) --Consent of Keith H. Williamson, Esq. (included in
opinion filed as Exhibit 5) Exhibit 23(b)
23(c) --Consent of Davis Polk & Wardwell Exhibit 23(c)
24 --Power of Attorney (contained on signature page) *
25 --Statement of eligibility of trustee *
</TABLE>
- --------
* Previously Filed
<PAGE>
EXHIBIT 1(a)
PITNEY BOWES CREDIT CORPORATION
DEBT SECURITIES
UNDERWRITING AGREEMENT
----------------------
November __, 1995
To the Representatives of the
Several Underwriters named in
the respective Pricing Agreements
hereinafter described.
Ladies and Gentlemen:
From time to time Pitney Bowes Credit Corporation (the "Company")
proposes to enter into one or more Pricing Agreements (each a "Pricing
Agreement") in the form of Annex I hereto, with such additions and deletions as
the parties thereto may determine, and, subject to the terms and conditions
stated herein and therein, to issue and sell to the firms named in Schedule I to
the applicable Pricing Agreement (such firms constituting the "Underwriters"
with respect to such Pricing Agreement and the securities specified therein)
certain of its debt securities (the "Securities") specified in Schedule II to
such Pricing Agreement (with respect to such Pricing Agreement, the "Designated
Securities"), less the principal amount of Designated Securities covered by
Delayed Delivery Contracts (as defined in Section 3 hereof), if any, as provided
in Section 3 hereof and as may be specified in Schedule II to such Pricing
Agreement (with respect to such Pricing Agreement, any Designated Securities to
be covered by Delayed Delivery Contracts being herein sometimes referred to as
"Contract Securities" and the Designated Securities to be purchased by the
Underwriters (after giving effect to the deduction, if any, for Contract
Securities) being herein sometimes referred to as "Underwriters' Securities").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the
<PAGE>
indenture (the "Indenture") identified in such Pricing Agreement.
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Underwriting Agreement
shall not be construed as an obligation of the Company to sell any of the
Securities or as an obligation of any of the Underwriters to purchase the
Securities or as a limitation on the right of the Company to execute Pricing
Agreements with any Underwriter. The obligation of the Company to issue and
sell any of the Securities and the obligation of any of the Underwriters to
purchase any of the Securities shall be evidenced by the Pricing Agreement with
respect to the Designated Securities specified therein. Each Pricing Agreement
shall specify the aggregate principal amount of such Designated Securities, the
initial public offering price of such Designated Securities, the purchase price
to the Underwriters of such Designated Securities, the names of the Underwriters
of such Designated Securities, the names of the Representatives of such
Underwriters, the principal amount of such Designated Securities to be purchased
by each Underwriter and whether any of such Designated Securities shall be
covered by Delayed Delivery Contracts and the commission payable to the
Underwriters with respect thereto and shall set forth the date, time and manner
of delivery of such Designated Securities and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the Indenture and
the registration statement and prospectus with respect thereto) the terms of
such Designated Securities. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(a) Registration statements in respect of the Securities have been
filed with the Securities and
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Exchange Commission (the "Commission"); each such registration statement
and any post-effective amendment thereto, each in the form heretofore
delivered or to be delivered to the Representatives and, excluding exhibits
to such registration statements, but including all documents incorporated
by reference in the prospectus contained in the latest registration
statement, to the Representatives for each of the other Underwriters have
been declared effective by the Commission in such form; no other document
with respect to each such registration statement or document incorporated
by reference therein has heretofore been filed or transmitted for filing
with the Commission (other than prospectuses filed pursuant to Rule 424(b)
of the rules and regulations of the Commission under the Securities Act of
1933, as amended (the "Act"), each in the form heretofore delivered to the
Representatives); and no stop order suspending the effectiveness of any
such registration statements has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (any preliminary
prospectus included in either of such registration statements or filed with
the Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Securities Act of 1933, as amended (the "Act"), being
hereinafter called a "Preliminary Prospectus"; the various parts of such
registration statements, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in the registration
statements at the time such part of each registration statements became
effective but excluding Form T-1, and, if applicable, including the
information contained in the form of final prospectus filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with Section
5(a) hereof and deemed by virtue of Rule 430A under the Act to be part of
either of the registration statements, each as amended at the time such
part of the registration statements became effective, being hereinafter
collectively called the "Registration Statement", the prospectus relating
to the Securities, in the form in which it has most recently been filed, or
transmitted for filing, with the Commission on or prior to the date of this
Agreement, being hereinafter called the "Prospectus"; any reference herein
to any Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or
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supplement to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of the
Company filed pursuant to Sections 13(a) or 15(d) of the Exchange Act
after the effective date of the Registration Statement that is incorporated
by reference in the Registration Statement; and any reference to the
Prospectus as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in relation to the applicable
Designated Securities in the form in which it is filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof, including any documents incorporated by reference therein as of the
date of such filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities;
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<PAGE>
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements thereto will conform, in all material
respects to the requirements of the Act and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the rules and regulations
of the Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment thereto
and as of the applicable filing date as to the Prospectus and any amendment
or supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter of Designated Securities through
the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities;
(d) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock or long-term
debt of the Company or any of its subsidiaries, or any material adverse
change, or any development involving a prospective material adverse change,
in or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or contemplated
in the Prospectus;
(e) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus;
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued
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shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable and all of such
shares are owned directly or indirectly by Pitney Bowes Inc., a Delaware
corporation ("Pitney Bowes"), free and clear of all liens, encumbrances,
security interests or claims;
(g) The Securities have been duly authorized, and, when Designated
Securities are issued and delivered pursuant to this Agreement and the
Pricing Agreement with respect to such Designated Securities and, in the
case of any Contract Securities, pursuant to Delayed Delivery Contracts
with respect to such Contract Securities, such Designated Securities will
have been duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company entitled to
the benefits provided by the Indenture, which will be substantially in the
form filed as an exhibit to the Registration Statement; the Indenture has
been duly authorized and, at the Time of Delivery (as defined in Section 4
hereof) the Indenture will be duly qualified under the Trust Indenture Act
and will constitute a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating
to or affecting creditors' rights and to general equity principles; and the
Underwriters' Securities and the Indenture conform to the descriptions
thereof in the Prospectus as amended or supplemented with respect to such
Designated Securities;
(h) In the event any of the Securities are purchased pursuant to
Delayed Delivery Contracts, each of such Delayed Delivery Contracts has
been duly authorized by the Company and, when executed and delivered by the
Company and the purchaser named therein, will constitute a valid and
legally binding agreement of the Company in accordance with its terms; and
any Delayed Delivery Contracts conform to the description thereof in the
Prospectus;
(i) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture, each
of the Delayed Delivery Contracts, if any, this Agreement and any Pricing
Agreement, and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default
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<PAGE>
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or Pitney Bowes is a party or
by which the Company or Pitney Bowes is bound or to which any of the
property or assets of the Company or Pitney Bowes is subject, including,
without limitation, the Finance Agreement, dated June 18, 1995, between the
Company and Pitney Bowes, nor will such action result in any violation of
the provisions of the Certificate of Incorporation, as amended, or the By-
Laws of the Company or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Company
or any of its properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Securities or the
consummation by the Company of the other transactions contemplated by this
Agreement or any Pricing Agreement or the Indenture or any Delayed Delivery
Contract, except such as have been, or will have been prior to the Time of
Delivery, obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters;
(j) The statements set forth in the Prospectus under the captions
"Description of Debt Securities" and "Description of Notes", insofar as
they purport to constitute a summary of the terms of the Securities, and
under the captions "Plan of Distribution" and "Underwriting", insofar as
they purport to describe the provisions of the laws and documents referred
to therein, are accurate, complete and fair;
(k) Neither the Company nor any of its material subsidiaries is in
violation of its Certificate of Incorporation or By-laws or in default in
the performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound;
(l) Other than as set forth or contemplated in the Prospectus, there
are no legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property of the
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<PAGE>
Company or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries would individually or
in the aggregate have a material adverse effect on the current consolidated
financial position, stockholders' equity, results of operations or
prospects of the Company and its subsidiaries, taken as a whole; and, to
the best of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(m) The Company is not and, after giving effect to the offering and
sale of the Securities, will not be an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(n) Neither the Company nor any of its affiliates does business with
the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes; and
(o) Price Waterhouse LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
the Underwriters' Securities, the several Underwriters propose to offer the
Underwriters' Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
The Company may specify in Schedule II to the Pricing Agreement
applicable to any Designated Securities that the Underwriters are authorized to
solicit offers to purchase Designated Securities from the Company pursuant to
delayed delivery contracts (herein called "Delayed Delivery Contracts"),
substantially in the form of Annex III attached hereto but with such changes
therein as the Representatives and the Company may authorize or approve. If so
specified, the Underwriters will endeavor to make such arrangements, and as
compensation therefor the Company will pay to the Representatives, for the
accounts of the Underwriters, at the Time of Delivery (as defined in Section 4
hereof), such commission, if any, as may be set forth in such Pricing Agreement.
Delayed Delivery Contracts, if any, are to be
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<PAGE>
with investors of the types described in the Prospectus and subject to other
conditions therein set forth. The Underwriters will not have any responsibility
in respect of the validity or performance of any Delayed Delivery Contracts.
The principal amount of Contract Securities to be deducted from the
principal amount of Designated Securities to be purchased by each Underwriter as
set forth in Schedule I to the Pricing Agreement applicable to such Designated
Securities shall be, in each case, the principal amount of Contract Securities
which the Company has been advised by the Representatives have been attributed
to such Underwriter, provided that, if the Company has not been so advised, the
amount of Contract Securities to be so deducted shall be, in each case, that
proportion of Contract Securities which the principal amount of Designated
Securities to be purchased by such Underwriter under such Pricing Agreement
bears to the total principal amount of the Designated Securities (rounded as the
Representatives may determine). The total principal amount of Underwriters'
Securities to be purchased by all the Underwriters pursuant to such Pricing
Agreement shall be the total principal amount of Designated Securities set forth
in Schedule I to such Pricing Agreement less the principal amount of the
Contract Securities. The Company will deliver to the Representatives not later
than 3:30 p.m. New York time, on the third business day preceding the Time of
Delivery specified in the applicable Pricing Agreement (or such other time and
date as the Representatives and the Company may agree upon in writing) a written
notice setting forth the principal amount of Contract Securities.
4. Underwriters' Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in the form specified in
such Pricing Agreement, and in such authorized denominations and registered in
such names as the Representatives may request upon at least forty-eight hours'
prior notice to the Company, shall be delivered by or on behalf of the Company
to the Representatives for the account of such Underwriter, against payment by
such Underwriter or on its behalf of the purchase price therefor by certified or
official bank check or checks, payable to the order of the Company in the funds
specified in such Pricing Agreement, all in the manner and at the place and time
and date specified in such Pricing Agreement or at such other place and time and
date as the Representatives and the Company may agree upon in writing, such time
and date being herein called the "Time of Delivery" for such Securities.
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<PAGE>
Concurrently with the delivery of and payment for the Underwriters'
Securities, the Company will deliver to the Representatives for the accounts of
the Underwriters a check payable to the order of the party designated in the
Pricing Agreement relating to such Securities in the amount of any compensation
payable by the Company to the Underwriters in respect of any Delayed Delivery
Contracts as provided in Section 3 hereof and in the Pricing Agreement relating
to such Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended or supplemented in relation
to the applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the business
day so required by Rule 424(b) following the execution and delivery of the
Pricing Agreement relating to the applicable Designated Securities; to make
no further amendment or any supplement to the Registration Statement or
Prospectus as amended or supplemented after the date of the Pricing
Agreement relating to such Securities and prior to the Time of Delivery for
such Securities which shall be disapproved by the Representatives for such
Securities promptly after reasonable notice thereof; to advise the
Representatives promptly of any such amendment or supplement after such
Time of Delivery and furnish the Representatives with copies thereof; to
file within the basic periods required under the applicable rules and
regulations under the Exchange Act all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act for so long as the delivery of a prospectus is required in connection
with the offering or sale of the Securities, and during such same period to
advise the Representatives, promptly after it receives notice thereof, of
the time when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed or transmitted for filing with the Commission, of
the issuance by the Commission of any stop order or of any order preventing
or suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of such Securities for offering or sale in
any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose,
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<PAGE>
or of any request by the Commission for the amending or supplementing of
the Registration Statement or Prospectus or for additional information;
and, in the event of the issuance of any such stop order or of any such
order preventing or suspending the use of any prospectus relating to the
Securities or suspending any such qualification, to promptly use its best
efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of such Securities,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) Prior to 12:00 noon, New York City time, on the New York Business
Day (as defined below) next succeeding the date of any Pricing Agreement
and from time to time, to furnish the Underwriters with copies of the
Prospectus as amended or supplemented in New York City in such quantities
as the Representatives may reasonably request, and, if the delivery of a
prospectus is required at any time in connection with the offering or sale
of the Securities and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus or
to file under the Exchange Act any document incorporated by reference in
the Prospectus in order to comply with the Act, the Exchange Act or the
Trust Indenture Act, to notify the Representatives and upon their request
to file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance; "New York Business Day"
shall mean each
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Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York are generally authorized or obligated by
law or executive order to close;
(d) To make generally available to its security holders as soon as
practicable but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries,
if any (which need not be audited), covering a twelve-month period
beginning after the date of the Pricing Agreement relating to the relevant
Designated Securities, and complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including at the option
of the Company Rule 158); and
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and including
the earlier of (i) the termination of trading restrictions for such
Designated Securities, as notified to the Company by the Representatives
and (ii) the Time of Delivery for such Designated Securities, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of the
Company which mature more than one year after such Time of Delivery and
which are substantially similar to such Designated Securities, without the
prior written consent of the Representatives.
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Indenture, any Delayed Delivery Contracts, any Blue Sky Memoranda and any other
documents in connection with the offering, purchase, sale and delivery of the
Securities; (iii) all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in
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connection with the Blue Sky Memoranda; (iv) any fees charged by securities
rating services for rating the Securities; (v) any filing fees incident to any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Securities; (vi) the cost of preparing the Securities;
(vii) the fees and expenses of any Trustee and, unless agreed to be paid by the
Trustee, of any agent of any Trustee and any fees and disbursements of counsel
for any Trustee in connection with any Indenture and the Securities; and (viii)
all other costs and expenses incident to the performance of its obligations
hereunder and under any Delayed Delivery Contracts which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, Section 8 and Section 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Securities by them, and
any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in such Pricing Agreement are, at and as of the Time
of Delivery for such Designated Securities, true and correct, the condition that
the Company shall have performed all of its obligations hereunder theretofore to
be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the Representatives' reasonable
satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated the Time of Delivery for
such Designated Securities, with respect to the incorporation of the
Company, the validity of the
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Indenture, the Designated Securities, the Delayed Delivery Contracts, if
any, the Registration Statement, the Prospectus as amended or supplemented
and other related matters as the Representatives may reasonably request,
and such counsel shall have received such papers and information as they
may reasonably request to enable them to pass upon such matters;
(c) The General Counsel for the Company shall have furnished to the
Representatives his written opinion, dated the Time of Delivery for such
Designated Securities (a draft of each such opinion is attached as Annex
IV(a) hereto), in form and substance satisfactory to the Representatives,
to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus as amended or supplemented;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus as amended or supplemented and all of the issued
shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable and all of
such shares are owned directly or indirectly by Pitney Bowes free and
clear of all liens, encumbrances, security interests or claims;
(iii) To the best of such counsel's knowledge and other than as
set forth or contemplated in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject which, if determined adversely to
the Company or any of its subsidiaries would individually or in the
aggregate have a material adverse effect on the current consolidated
financial position, stockholder's equity, results of operations or
prospects of the Company and its subsidiaries, taken as a whole; and,
to the best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened
by others;
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<PAGE>
(iv) This Agreement and the Pricing Agreement with respect to
the Designated Securities have been duly authorized, executed and
delivered by the Company;
(v) In the event any of the Designated Securities are to be
purchased pursuant to Delayed Delivery Contracts, each of such Delayed
Delivery Contracts has been duly authorized, executed and delivered by
the Company and, assuming such Contract has been duly executed and
delivered by the purchaser named therein, constitutes a valid and
legally binding agreement of the Company in accordance with its terms;
and any Delayed Delivery Contracts conform to the description thereof
in the Prospectus as amended or supplemented;
(vi) The Designated Securities have been duly authorized; the
Underwriters' Securities have been duly executed, authenticated,
issued and delivered and constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the
Indenture; the Contract Securities, if any, when executed,
authenticated, issued and delivered pursuant to the Indenture and
Delayed Delivery Contracts, if any, will constitute valid and legally
binding obligations of the Company entitled to the benefits provided
by the Indenture; and the Designated Securities and the Indenture
conform to the descriptions thereof in the Prospectus as amended or
supplemented;
(vii) The Indenture has been duly authorized, executed and
delivered by the parties thereto and constitutes a valid and legally
binding instrument, enforceable in accordance with its terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Indenture has been
duly qualified under the Trust Indenture Act;
(viii) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the Designated
Securities, the Indenture, each of the Delayed Delivery Contracts, if
any, this Agreement and the Pricing Agreement with respect to the
Designated
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Securities and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company or
Pitney Bowes is a party or by which the Company or Pitney Bowes is
bound or to which any of the property or assets of the Company or
Pitney Bowes is subject, nor will such actions result in any violation
of the provisions of the Certificate of Incorporation, as amended, or
the By-Laws of the Company or any statute or any order, rule or
regulation known to such counsel of any court or governmental agency
or body having jurisdiction over the Company or any of its properties;
(ix) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the issue and sale of the Designated Securities or the
consummation by the Company of the other transactions contemplated by
this Agreement or such Pricing Agreement or the Indenture or any of
such Delayed Delivery Contracts, except such as have been obtained
under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, orders, registrations or qualifications as
may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Designated Securities by the
Underwriters;
(x) Neither the Company nor any of its material subsidiaries
is in violation of its By-laws or Certificate of Incorporation or in
default in the performance or observance of any material obligation,
covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which it is a party
or by which it or any of its properties may be bound;
(xi) The statements set forth in the Prospectus under the
captions "Description of Debt Securities" and "Description of Notes",
insofar as they purport to constitute a summary of the terms of the
Securities, and under the captions "Plan of Distribution" and
"Underwriting", insofar as they
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purport to describe the provisions of the laws and documents referred
to therein, are accurate, complete and fair;
(xii) The Company is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in
the Investment Company Act;
(xiii) The documents incorporated by reference in the Prospectus
as amended or supplemented (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; and such counsel has no reason to believe that any of such
documents, when they became effective or were so filed, as the case
may be, contained, in the case of a registration statement which
became effective under the Act, an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or, in the
case of other documents which were filed under the Act or the Exchange
Act with the Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such documents were so filed, not misleading; and
(xiv) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments and supplements thereto made
by the Company prior to the Time of Delivery for the Designated
Securities (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) comply as
to form in all material respects with the requirements of the Act and
the Trust Indenture Act and the rules and regulations thereunder;
although such counsel does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, except for those referred to
in the opinion in subsection (xi) of this Section 7(c), such counsel
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<PAGE>
has no reason to believe that, as of their effective dates each part
of the Registration Statement or any further amendment or supplement
thereto made by the Company prior to the Time of Delivery (other than
the financial statements and related schedules therein, as to which
such counsel need express no opinion) contained an untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or that, as of its date, the Prospectus as amended or
supplemented or any further amendment or supplement thereto made by
the Company prior to the Time of Delivery (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion) contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or that, as
of the Time of Delivery, either the Registration Statement or the
Prospectus as amended or supplemented or any such further amendment or
supplement thereto made by the Company prior to the Time of Delivery
(other than the financial statements and related schedules therein, as
to which such counsel need express no opinion) contains an untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; and such counsel does not know of any amendment to the
Registration Statement required to be filed or any contracts or other
documents of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference
into the Prospectus as amended or supplemented or required to be
described in the Registration Statement or the Prospectus as amended
or supplemented which are not filed or incorporated by reference or
described as required;
(d) Counsel for the Company satisfactory to the Representatives shall
have furnished to the Representatives their written opinion (a draft of
each such opinion is attached as Annex IV(b) hereto), dated the Time of
Delivery for such Designated Securities, in
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form and substance satisfactory to the Representatives, to the effect that:
(i) This Agreement and the Pricing Agreement with respect to
the Designated Securities have been duly authorized, executed and
delivered by the Company;
(ii) In the event any of the Designated Securities are to be
purchased pursuant to Delayed Delivery Contracts, each of such Delayed
Delivery Contracts has been duly authorized, executed and delivered by
the Company and, assuming such Contract has been duly executed and
delivered by the purchaser named therein, constitutes a valid and
legally binding agreement of the Company in accordance with its terms;
and any Delayed Delivery Contracts conform to the description thereof
in the Prospectus as amended or supplemented;
(iii) The Designated Securities have been duly authorized; the
Underwriters' Securities have been duly executed, authenticated,
issued and delivered and constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the
Indenture; the Contract Securities, if any, when executed,
authenticated, issued and delivered pursuant to the Indenture and
Delayed Delivery Contracts, if any, will constitute valid and legally
binding obligations of the Company entitled to the benefits provided
by the Indenture; and the Designated Securities and the Indenture
conform to the descriptions thereof in the Prospectus as amended or
supplemented;
(iv) The Indenture has been duly authorized, executed and
delivered by the parties thereto and constitutes a valid and legally
binding instrument, enforceable in accordance with its terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Indenture has been
duly qualified under the Trust Indenture Act;
(v) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments and supplements thereto made
by
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<PAGE>
the Company prior to the Time of Delivery for the Designated
Securities (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) comply as
to form in all material respects with the requirements of the Act and
the Trust Indenture Act and the rules and regulations thereunder;
although they do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, except for those referred to
in the opinion in subsection (v) of this Section 7(d), they have no
reason to believe that, as of their effective dates, each part of the
Registration Statement (or any further amendment or supplement thereto
made by the Company prior to the Time of Delivery) (other than the
financial statements and related schedules therein, as to which such
counsel need express no opinion) or, as of its date, the Prospectus as
amended or supplemented (or any further amendment or supplement
thereto made by the Company prior to the Time of Delivery) (other than
the financial statements and related schedules therein, as to which
such counsel need express no opinion) contained an untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or that, as of the Time of Delivery, the Prospectus (or any
such further amendment or supplement thereto) (other than the
financial statements and related schedules therein, as to which such
counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(e) On the date of the Pricing Agreement for such Designated
Securities at a time prior to the execution of the Pricing Agreement with
respect to such Designated Securities and at the time of Delivery for such
Designated Securities, the independent accountants of the Company who have
certified the financial statements of the Company and its subsidiaries included
or incorporated by reference in the Registration Statement shall have furnished
to the Representatives a letter, dated the effective date of the Registration
Statement or the date of the most recent report filed with the Commission
containing financial statements and incorporated by reference in the
Registration Statement, if the date of such report is later than such effective
date, and a letter dated such Time of
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<PAGE>
Delivery to the effect set forth in Annex II hereto and with respect to
such letter dated such Time of Delivery, as to such other matters as the
Representatives may reasonably request and in form and substance
satisfactory to the Representatives;
(f) (i) Neither the Company nor any of its subsidiaries, if any,
shall have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus as
amended or supplemented prior to the date of the Pricing Agreement relating
to the Designated Securities any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus as
amended or supplemented, prior to the date of the Pricing Agreement
relating to the Designated Securities and (ii) since the respective dates
as of which information is given in the Prospectus as amended or
supplemented prior to the date of the Pricing Agreement relating to the
Designated Securities there shall not have been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries or any
change, or any development involving a prospective change, in or affecting
the general affairs, management, financial position, stockholder's equity
or results of operations of the Company and its subsidiaries, if any,
otherwise than as set forth or contemplated in the Prospectus as amended or
supplemented, prior to the date of the Pricing Agreement relating to the
Designated Securities, the effect of which, in any such case described in
Clause (i) or (ii), is in the judgment of the Representatives so material
and adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Designated Securities on the terms
and in the manner contemplated in the Prospectus as first amended or
supplemented relating to the Designated Securities;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities by any "nationally recognized
statistical rating organization," as that term is defined by the Commission
for purposes of Rule 436(g)(2) under the Act and (ii) no such organization
shall have publicly announced that it has under surveillance or review,
with possible negative
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<PAGE>
implications, its rating of any of the Company's debt securities;
(h) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally
on the New York Stock Exchange; (ii) a general moratorium on commercial
banking activities declared by either Federal or New York State
authorities; or (iii) the outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national
emergency or war, if the effect of any such event specified in this clause
(iii) in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Underwriters' Securities on the terms and in the manner contemplated in the
Prospectus as first amended or supplemented relating to the Designated
Securities;
(i) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Securities a
certificate or certificates of officers of the Company satisfactory to the
Representatives as to the accuracy of the representations and warranties of
the Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set forth
in subsections (a) and (f) of this Section, and as to such other matters as
the Representatives may reasonably request;
(j) The finance agreement dated June 12, 1995 from Pitney Bowes to
Pitney Bowes Credit Corporation and filed as Exhibit 4(b) to the
Registration Statement shall be in full force and effect with respect to
the Designated Securities; and
(k) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of any Pricing Agreement.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or
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<PAGE>
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any amendment 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 will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to such
Securities.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any amendment 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, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
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<PAGE>
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or
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<PAGE>
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and the
Underwriters of the Designated Securities on the other from the offering of the
Designated Securities to which such loss, claim, damage or liability (or action
in respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party 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 the Underwriters of the Designated Securities on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and such Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from such offering) (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by such Underwriters. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company on the
one hand or such Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the applicable Designated Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages
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<PAGE>
which such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The obligations of the Underwriters of
Designated Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to such
Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Underwriters' Securities which it has agreed to purchase under the
Pricing Agreement relating to such Securities, the Representatives may in their
discretion arrange for themselves or another party or other parties to purchase
such Underwriters' Securities on the terms contained herein. If within thirty-
six hours after such default by any Underwriter the Representatives do not
arrange for the purchase of such Underwriters' Securities, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Representatives to
purchase such Underwriters' Securities on such terms. In the event that, within
the respective prescribed period, the Representatives notify the Company that
they have so arranged for the purchase of such Underwriters' Securities, or the
Company notifies the Representatives that it has so arranged for the purchase of
such Underwriters' Securities, the Representatives or the Company shall have the
right to postpone the Time of Delivery for such Underwriters' Securities for a
period of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus as
amended or supplemented, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as
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used in this Agreement shall include any person substituted under this Section
with like effect as if such person had originally been a party to the Pricing
Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Underwriters' Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Underwriters' Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Underwriters'
Securities which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each non-
defaulting Underwriter to purchase its pro rata share (based on the principal
amount of Designated Securities which such Underwriter agreed to purchase under
such Pricing Agreement) of the Underwriters' Securities of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of
the Underwriters' Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Underwriters' Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Underwriters' Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and
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<PAGE>
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of
any Underwriter, or the Company, or any officer or director or controlling
person of the Company, and shall survive delivery of and payment for the
Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section
9 hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Section 6 and Section 8 hereof; but, if for any other
reason Underwriters' Securities are not delivered by or on behalf of the Company
as provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives jointly or by such of the Representatives, if any,
as may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by
registered mail, telex or facsimile transmission to the address of the Company
set forth in the Registration Statement, Attention: Secretary; provided,
however, that any notice to an Underwriter pursuant to Section 8(c) hereof shall
be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Company by the Representatives upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
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13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of the Underwriters, the Company and, to the
extent provided, in Section 8 and Section 10 hereof, the officers and directors
of the Company and each person who controls the Company or any Underwriter, and
their respective heirs, executors, administrators, successors and assigns, and
no other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, the term "business day" shall mean any day when the Commission's office
in Washington, D.C. is normally open for business.
15. This Agreement and each Pricing Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
Very truly yours,
PITNEY BOWES CREDIT CORPORATION
By: ____________________________
Vice President - Finance
By: ____________________________
Treasurer
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Annex I
Pricing Agreement
-----------------
[Name of Co-Representative(s)]
As Representatives of the
several Underwriters named
in Schedule I hereto.
[address]
____________, 199_
Dear Sirs:
Pitney Bowes Credit Corporation (the "Company") proposes, subject to
the terms and conditions stated herein and in the Underwriting Agreement, dated
November __, 1995 (the "Underwriting Agreement"), to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II hereto (the "Designated Securities"). Each of the
provisions of the Underwriting Agreement is incorporated herein by reference in
its entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Pricing Agreement, except that each
representation and warranty in Section 2 of the Underwriting Agreement which
makes reference to the Prospectus shall be deemed to be a representation or
warranty as of the date of the Underwriting Agreement in relation to the
Prospectus (as therein defined) and also a representation and warranty as of the
date of this Pricing Agreement in relation to the Prospectus as amended or
supplemented relating to the Designated Securities which are the subject of this
Pricing Agreement. Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so incorporated by reference shall be
deemed to refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The Representatives
designated to act on behalf of the Representatives and on behalf of each of the
Underwriters of the Designated Securities pursuant to
I-1
<PAGE>
Section 12 of the Underwriting Agreement and the address of the Representatives
referred to in such Section 12 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto, less the principal amount of Designated
Securities covered by Delayed Delivery Contracts, if any, as may be specified in
such Schedule II.
If the foregoing is in accordance with your understanding, please sign
and return to us counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is or will be pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination, upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
Very truly yours,
PITNEY BOWES CREDIT CORPORATION
By:____________________________
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<PAGE>
Accepted as of the date hereof:
[NAME OF CO-REPRESENTATIVE CORPORATION]
By:__________________________________
(Title)
_____________________________________
(Name of Co-Representative
Partnership)
On behalf of each of the Underwriters
I-3
<PAGE>
SCHEDULE I
Principal Amount
of Designated
Securities
Underwriter to be Purchased
----------- ----------------
[Name(s) of Representatives] .................. $
[Names of other Underwriters] .................
____________
Total ............................... $
============
I-4
<PAGE>
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
AGGREGATE PRINCIPAL AMOUNT:
$
PRICE TO PUBLIC:
% of the principal amount of the Designated Securities, plus accrued
interest from to [and accrued
amortization, if any, from to ]
PURCHASE PRICE BY UNDERWRITERS:
% of the principal amount of the Designated Securities, plus accrued
interest from to [and accrued
amortization, if any, from to ]
FORM OF DESIGNATED SECURITIES
[Definitive form to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery at the office of [The
Depository Trust Company or its designated custodian] [the
Representatives]]
[Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian, to be made available for checking by the Representatives at
least twenty-four hours prior to the Time of Delivery at the office of
DTC.]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
[New York] Clearing House funds
INDENTURE:
Indenture, dated as of November 1, 1995 (the "Indenture") between the
Company and Chemical Bank, as Trustee
I-5
<PAGE>
MATURITY:
INTEREST RATE:
[ %] [Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES:
[months and dates, commencing ............., 19..]
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the
amount of $ or an integral multiple thereof, ]
[on or after , at the following redemption prices
(expressed in percentages of principal amount). If [redeemed on or
before , %, and if] redeemed during the 12-month
period beginning
Redemption
Year Price
---- ----------
and thereafter at 100% of their principal amount, together in each
case with accrued interest to the redemption date.]
[on any interest payment date falling on or after ,
, at the election of the Company, at a
redemption price equal to the principal amount thereof, plus accrued
interest to the date of redemption.]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
I-6
<PAGE>
[Restriction on refunding]
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund to
retire $ principal amount of Designated Securities on in
each of the years through at 100% of their principal amount
plus accrued interest][, together with [cumulative][non-cumulative]
redemptions at the option of the Company to retire an additional $
principal amount of Designated Securities in the years through
at 100% of their principal amount plus accrued interest.]
DEFEASANCE PROVISIONS:
Section 402 [(excluding Section 402(i))] and Section 1008 [(excluding
Section 1008(5))] of the Indenture shall apply to the Designated
Securities.
[If Securities are extendable debt Securities, insert--
EXTENDABLE PROVISIONS:
Securities are repayable on , [insert date and
years], at the option of the holder, at their principal amount with accrued
interest. The initial annual interest rate will be %, and thereafter
the annual interest rate will be adjusted on , and to a
rate not less than % of the effective annual interest rate on U.S.
Treasury obligations with -year maturities as of the [insert date 15
days prior to maturity date] prior to such [insert maturity date].]
[If Securities are floating rate debt Securities, insert--
FLOATING RATE PROVISIONS:
Initial annual interest rate will be % through [and
thereafter will be adjusted [monthly][on each , , and
][to an annual rate of % above the average rate for -year
[month][securities][certificates of deposit] issued by
and [insert names of banks],][and the annual interest rate
[thereafter][from through ] will be the interest
yield equivalent of the weekly average per annum market
I-7
<PAGE>
discount rate for -month Treasury bills plus % of Interest
Differential (the excess, if any, of (i) the then current weekly average
per annum secondary market yield for -month certificates of
deposit over (ii) the then current interest yield equivalent of the weekly
average per annum market discount rate for -month Treasury
bills); [from and thereafter the rate will be the then current
interest yield equivalent plus % of Interest Differential].]
TIME OF DELIVERY:
[Time and date], 19
CLOSING LOCATION:
DELAYED DELIVERY:
[None][Underwriters' commission shall be % of the principal amount of
Designated Securities for which Delayed Delivery Contracts have been
entered into. Such commission shall be payable to the order of
.]
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
[OTHER TERMS]*:
I-8
<PAGE>
__________________
* A description of particular tax, accounting or other unusual features
(such as the addition of event risk provisions) of the Securities should be set
forth, or referenced to an attached and accompanying description, if necessary
to ensure agreement as to the terms of the Securities to be purchased and sold.
Such a description might appropriately be in the form in which such features
will be described in the Prospectus Supplement for the offering.
I-9
<PAGE>
ANNEX II
Pursuant to Section 7(e) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules audited by them and included or
incorporated by reference in the Registration Statement, or the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the related
published rules and regulations thereunder; and, if applicable, they have
made a review in accordance with standards established by the American
Institute of Certified Public Accountants of the consolidated interim
financial statements, selected financial data, and/or condensed financial
statements derived from audited financial statements of the Company for the
periods specified in such letter, as indicated in their reports thereon,
copies of which have been separately furnished to the representative or
representatives of the Underwriters (the "Representatives") such term to
include an Underwriter or Underwriters who act without any firm being
designated as its or their representatives;
(iii) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the five most recent fiscal years included in the Prospectus and
included or incorporated by reference in Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in, the audited
consolidated financial statements for five such fiscal years which were
included or incorporated by reference in the Company's Annual Reports on
Form 10-K for such fiscal years;
II-1
<PAGE>
(iv) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Item 503(d) of Regulation S-K;
(v) On the basis of limited procedures, not constituting an
audit in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of income
and consolidated statements of retained earnings, consolidated balance
sheets and consolidated statements of cash flows included in the
Prospectus and/or included or incorporated by reference in the
Company's Quarterly Reports on Form 10-Q incorporated by reference in
the Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the Exchange Act and the
related published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed consolidated
statements of income and consolidated statements of retained earnings,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus or included in the Company's Quarterly
Reports on Form 10-Q incorporated by reference in the Prospectus for
them to be in conformity with generally accepted accounting
principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
II-2
<PAGE>
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived the unaudited condensed
financial statements referred to in clause (A) and any unaudited
income statement data and balance sheet items included or incorporated
by reference in the Prospectus and referred to in Clause (B) were not
determined on a basis substantially consistent with the basis for the
audited financial statements included or incorporated by reference in
the Company's Annual Report on Form 10-K for the most recent fiscal
year;
(D) as of a specified date not more than five days prior to the
date of delivery of such letter, there have been any changes in the
capital stock or any increase in the consolidated short-term or long-
term debt of the Company and its subsidiaries or any decreases in
consolidated net finance assets or total assets or other items
specified by the Representatives, or any increases in any items
specified by the Representatives (in each case, if such information is
available), in each case as compared with amounts shown in the latest
balance sheet included or incorporated by reference in the Prospectus
except in each case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are described
in such letter; and
(E) for the period from the date of the latest complete financial
statements included or
II-3
<PAGE>
incorporated by reference in the Prospectus to the specified date
referred to in Clause (D) there were any decreases in consolidated
finance income or consolidated income before taxes or of consolidated
net income or other items specified by the Representatives, or any
increases in any items specified by the Representatives (in each case,
if such information is avaible), in each case as compared with the
comparable period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in each
case for increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(vi) In addition to the audit referred to in their report(s) included
or incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
subparagraphs (iii) and (v) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and
financial information specified by the Representatives which are derived
from the general accounting records of the Company and its subsidiaries,
which appear in the Prospectus (excluding documents incorporated by
reference), or in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Representatives or in documents
incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and its
subsidiaries, and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Pricing Agreement for purposes of such letter and
to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time of Delivery for such
Designated Securities.
II-4
<PAGE>
ANNEX III
DELAYED DELIVERY CONTRACT
, 199_
PITNEY BOWES CREDIT CORPORATION
c/o [Name and address of
appropriate Representatives]
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from PITNEY BOWES CREDIT
CORPORATION (hereinafter called the "Company"), and the Company agrees to sell
to the undersigned,
$
principal amount of the Company's [Title of Designated Securities] (hereinafter
called the "Designated Securities"), offered by the Company's Prospectus dated
, 199 , as amended or supplemented, receipt of a copy of which is hereby
acknowledged, at a purchase price of % of the principal amount thereof, plus
accrued interest from the date from which interest accrues as set forth below,
and on the further terms and conditions set forth in this contract.
The undersigned will purchase the Designated Securities from the
Company on 199 ,(the "Delivery Date") and interest on the Designated Securities
so purchased will accrue from , 199 .
[The undersigned will purchase the Designated Securities from the
Company on the delivery date or dates and in the principal amount or amounts set
forth below:
III-1
<PAGE>
<TABLE>
<CAPTION>
Principal Date from Which
Delivery Date Amount Interest Accrues
- ------------- --------- ----------------
<S> <C> <C>
, 199 $ , 199
, 199 $ , 199
</TABLE>
Each such date on which Designated Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date".]
Payment for the Designated Securities which the undersigned has agreed
to purchase on [the] [each] Delivery Date shall be made to the Company or its
order by certified or official bank check in
Clearing House funds at the office of ,
or by wire transfer to a bank account specified by the Company, on [the]
[such] Delivery Date upon delivery to the undersigned of the Designated
Securities then to be purchased by the undersigned in definitive fully
registered form and in such denominations and registered in such names as the
undersigned may designate by written, telex or facsimile communication addressed
to the Company not less than five full business days prior to [the] [such]
Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Designated Securities on [the] [each] Delivery Date shall be subject to the
condition that the purchase of Designated Securities to be made by the
undersigned shall not on [the] [such] Delivery Date be prohibited under the laws
of the jurisdiction to which the undersigned is subject. The obligation of the
undersigned to take delivery of and make payment for Designated Securities shall
not be affected by the failure of any purchaser to take delivery of and make
payment for Designated Securities pursuant to other contracts similar to this
contract.
[The undersigned understands that underwriters (the "Underwriters")
are also purchasing Designated Securities from the Company, but that the
obligations of the undersigned hereunder are not contingent on such purchases.]
Promptly after completion of the sale to the Underwriters the Company will mail
or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by a copy of the Opinion of Counsel for the Company
delivered to the Underwriters in connection therewith.
The undersigned represents and warrants that, as of the date of this
contract, the undersigned is not prohibited from purchasing the Designated
Securities hereby
III-2
<PAGE>
agreed to be purchased by it under the laws of the jurisdiction to which the
undersigned is subject.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
This contract may be executed by either of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same instrument.
It is understood that the acceptance by the Company of any Delayed
Delivery Contract (including this contract) is in the Company's sole discretion
and that, without limiting the foregoing, acceptances of such contracts need not
be on a first-come, first-served basis. If this contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract between the Company and
the undersigned when such counterpart is so mailed or delivered by the Company.
Yours very truly,
______________________________
By ___________________________
(Signature)
___________________________
(Name and Title)
___________________________
(Address)
Accepted, , 199 .
PITNEY BOWES CREDIT CORPORATION
By ____________________________
(Title)
III-3
<PAGE>
EXHIBIT 1(b)
PITNEY BOWES CREDIT CORPORATION
$500,000,000
Medium-Term Notes, Series C
Distribution Agreement
----------------------
November __, 1995
Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
CS First Boston Corporation,
55 East 52nd Street,
New York, New York 10055-0186.
Merrill Lynch, Pierce,
Fenner & Smith Incorporated,
World Financial Center, North Tower,
New York, New York 10281-1307.
Chase Securities, Inc.,
One Chase Manhattan Plaza,
35th Floor,
New York, New York 10081.
Citicorp Securities, Inc.,
399 Park Avenue, 7th Floor,
Zone 3,
New York, New York 10043.
First Chicago Capital Markets, Inc.,
One First National Plaza,
Mail Suite 0595,
Chicago, Illinois 60670-0595.
NationsBanc Capital Markets, Inc.,
NationsBank Corporate Center, 7th Floor,
100 North Tryon Street,
NC1-007-07-01,
Charlotte, North Carolina 28255.
Ladies and Gentlemen:
Pitney Bowes Credit Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell from
<PAGE>
time to time its Medium-Term Notes, Series C (the "Securities") in an aggregate
principal amount up to $500,000,000 and agrees with each of you (individually,
an "Agent" and collectively, the "Agents") as set forth in this Agreement.
Subject to the terms and conditions stated herein and to the
reservation by the Company of the right to sell Securities directly on its own
behalf or through other agents, dealers or underwriters as set forth in Section
2(a), the Company hereby (i) appoints each Agent as an agent of the Company for
the purpose of soliciting and receiving offers to purchase Securities from the
Company pursuant to Section 2(a) hereof and (ii) agrees that, except as
otherwise contemplated herein, whenever it determines to sell Securities
directly to any Agent as principal, it will enter into a separate agreement
(each, a "Terms Agreement"), substantially in the form of Annex I hereto,
relating to such sale in accordance with Section 2(b) hereof. The Distribution
Agreement shall not be construed to create either an obligation on the part of
the Company to sell any Securities or an obligation of any of the Agents to
purchase Securities as principal.
The Securities will be issued under an indenture, dated as of
November 1, 1995 (the "Indenture"), between the Company and Chemical Bank, as
Trustee (the "Trustee"). The Securities shall have the maturity ranges,
interest rates, if any, redemption provisions and other terms set forth in the
Prospectus referred to below as it may be amended or supplemented from time to
time. The Securities will be issued, and the terms and rights thereof
established, from time to time by the Company in accordance with the Indenture.
1. The Company represents and warrants to, and agrees with, each
Agent that:
(a) Two Registration Statements on Form S-3 (File Nos. 33-53736 and
33-62485) in respect of $750,000,000 aggregate principal amount of debt
securities of the Company, including the Securities, has been filed with the
Securities and Exchange Commission (the "Commission") in the form heretofore
delivered or to be delivered to such Agent, excluding exhibits to such
registration statements but including all documents incorporated by reference in
the prospectus included in the latest registration statement, have been declared
effective by the Commission in such form; no other document with respect to such
registration statements or document incorporated by reference therein has
heretofore been filed or transmitted for filing with the
-2-
<PAGE>
Commission (other than the prospectuses filed pursuant to Rule 424(b) of the
rules and regulations of the Commission under the Act, each in the form
heretofore delivered to the Agents); and no stop order suspending the
effectiveness of any such registration statements has been issued and no
proceeding for that purpose has been initiated or threatened by the Commission
(any preliminary prospectus included in such registration statements or filed
with the Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Act, are hereinafter called a "Preliminary Prospectus"; the
various parts of such registration statements, including all exhibits thereto
and the documents incorporated by reference in the prospectus contained in the
registration statements at the time such part of the registration statement
became effective but excluding Form T-1, each as amended at the time such part
of the Registration Statements became effective, is hereinafter collectively
called the "Registration Statement"; the prospectus (including, if applicable,
any prospectus supplement) relating to the Securities, in the form in which it
has most recently been filed or transmitted for filing with the Commission on or
prior to the date of this Agreement, is hereinafter called the "Prospectus"; any
reference herein to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein pursuant
to the applicable form under the Securities Act of 1933, as amended (the "Act"),
as of the date of such Preliminary Prospectus or Prospectus, as the case may be;
any reference to any amendment or supplement to any Preliminary Prospectus or
the Prospectus, including any supplement to the Prospectus that sets forth only
the terms of a particular issue of the Securities (a "Pricing Supplement"),
shall be deemed to refer to and include any documents filed after the date of
such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated therein by reference; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any annual report
of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act
after the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the Prospectus as
amended or supplemented shall be deemed to refer to and include the Prospectus
as amended or supplemented (including by the applicable Pricing Supplement filed
in accordance with Section 4(a) hereof) in relation to Securities to be sold
pursuant to this Agreement, in the form to be filed or transmitted for filing
with the Commission pursuant to Rule 424(b) under the Act and in accordance with
Section 4(a)
-3-
<PAGE>
hereof, including any documents incorporated by reference therein as of the date
of such filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus, or any
further amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to any
- -------- -------
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by any Agent expressly for use in the
Prospectus as amended or supplemented to relate to a particular issuance of
Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the Act
and the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and
the rules and regulations of the Commission thereunder and do not and will not,
as of the applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, however, that this
-------- -------
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Company by any Agent expressly for use in the Prospectus as amended or
supplemented to relate to a particular issuance of Securities;
(d) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited
-4-
<PAGE>
financial statements included or incorporated by reference in the Prospectus any
material loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as of which
information is given in the Registration Statement and the Prospectus, there has
not been any change in the capital stock or long-term debt of the Company or any
of its subsidiaries, or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and non-
assessable and all of such shares are owned directly or indirectly by Pitney
Bowes Inc., a Delaware corporation ("Pitney Bowes"), free and clear of all
liens, encumbrances, security interests or claims;
(g) The Securities have been duly authorized, and, when issued and
delivered pursuant to this Agreement and any Terms Agreement, will have been
duly executed, authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits provided by
the Indenture, which will be substantially in the form filed as an exhibit to
the Registration Statement; the Indenture has been duly authorized and duly
qualified under the Trust Indenture Act and constitutes a valid and legally
binding instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles; and the Indenture conforms and the Securities of any particular
issuance of Securities will conform to the descriptions thereof contained in the
Prospectus as amended or supplemented to relate to such issuance of Securities;
-5-
<PAGE>
(h) The issue and sale of the Securities, the compliance by the
Company with all of the provisions of the Securities, the Indenture, this
Agreement and any Terms Agreement, and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which Pitney Bowes, the Company or any of its material
subsidiaries is a party or by which Pitney Bowes, the Company or any of its
material subsidiaries is bound or to which any of the property or assets of
Pitney Bowes, the Company or any of its material subsidiaries is subject, nor
will such action result in any violation of the provisions of the Certificate of
Incorporation, as amended, or the By-Laws of the Company or any statute or any
order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its material subsidiaries or any of
their properties; and no consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body is required
for the solicitation of offers to purchase Securities and the issue and sale of
the Securities or the consummation by the Company of the other transactions
contemplated by this Agreement, any Terms Agreement or the Indenture, except
such as have been, or will have been prior to the Commencement Date (as defined
in Section 3 hereof), obtained under the Act or the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
solicitation by such Agent of offers to purchase Securities from the Company and
with purchases of Securities by such Agent as principal, as the case may be, in
each case in the manner contemplated hereby;
(i) Neither the Company nor any of its material subsidiaries is in
violation of its Certificate of Incorporation or By-Laws or in default in the
performance or observance of any material obligation, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it or any of
its properties may be bound;
(j) The statements set forth in the Prospectus under the captions
"Description of Debt Securities" and "Description of Notes", insofar as they
purport to constitute a summary of the terms of the Securities, under the
captions "United States Taxation", "Supplemental Plan of Distribution" and "Plan
of Distribution", insofar as they
-6-
<PAGE>
purport to describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair;
(k) Other than as set forth or contemplated in the Prospectus, there
are no legal or governmental proceedings pending to which the Company or any of
its subsidiaries is a party or to which any property of the Company or any of
its subsidiaries is subject, which, if determined adversely to the Company or
any of its subsidiaries would individually or in the aggregate have a material
adverse effect on the current consolidated financial position, stockholders'
equity, results of operations or prospects of the Company and its subsidiaries;
and, to the best of the Company's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by others;
(l) The Company is not, and after giving effect to each offering and
sale of the Securities will not be, an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(m) Neither the Company nor any of its affiliates does business with
the government of Cuba or with any person or affiliate located in Cuba within
the meaning of Section 517.075, Florida Statutes;
(n) Immediately after any sale of Securities by the Company hereunder
or under any Terms Agreement, the aggregate amount of Securities which shall
have been issued and sold by the Company hereunder or under any Terms Agreement
and of any debt securities of the Company (other than such Securities) that
shall have been issued and sold pursuant to the Registration Statement will not
exceed the amount of debt securities registered under the Registration
Statement; and
(o) Price Waterhouse LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
2. (a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth, each of the
Agents hereby severally and not jointly agrees, as agent of the Company, to use
its reasonable efforts to solicit and receive offers to purchase the Securities
from the Company upon the terms
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<PAGE>
and conditions set forth in the Prospectus as amended or supplemented from time
to time. The Company reserves the right to sell, and may solicit and accept
offers to purchase, (i) Securities through any agents, dealers or underwriters
other than the Agents so long as any such sale, solicitation or purchase is on
terms substantially identical to the terms and conditions as provided herein for
the Agents, (ii) Securities directly on its own behalf, and (iii) debt
securities through private placements and, in the case of any such sale not
resulting from a solicitation made by any agent, no commission will be payable
with respect to such sale. Notwithstanding the foregoing, except as it may be
subject to the terms and conditions hereof and of any Terms Agreement, the
Company may sell debt securities with a maturity at the time of original
issuance of nine months or more in connection with a firm commitment
underwriting pursuant to an underwriting agreement that does not provide for a
continuous offering of medium-term notes. These provisions shall not limit
Section 4(f) hereof or any similar provision included in any Terms Agreement.
Procedural details relating to the issue and delivery of Securities,
the solicitation of offers to purchase Securities and the payment in each case
therefor shall be as set forth in the Administrative Procedure attached hereto
as Annex II as it may be amended from time to time by written agreement between
the Agents and the Company (the "Administrative Procedure"). The provisions of
the Administrative Procedure shall apply to all transactions contemplated
hereunder other than those made pursuant to a Terms Agreement. Each Agent and
the Company agree to perform the respective duties and obligations specifically
provided to be performed by each of them in the Administrative Procedure. The
Company will furnish to the Trustee a copy of the Administrative Procedure as
from time to time in effect.
The Company reserves the right, in its sole discretion, to instruct
the Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase the Securities. As soon as practicable, but
in any event not later than one business day in New York City, after receipt of
notice from the Company, the Agents will suspend solicitation of offers to
purchase Securities from the Company until such time as the Company has advised
the Agents that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, at the time of
settlement of any sale of a Security by the Company as a result of a
solicitation made by such Agent, in
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<PAGE>
an amount equal to the following applicable percentage of the principal amount
of such Security sold:
<TABLE>
<CAPTION>
Commission
(percentage of
aggregate
principal amount
Range of Maturities of Securities sold)
- ------------------------------------- -------------------
<S> <C>
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .675%
From 20 years to 30 years .750%
</TABLE>
(b) Each sale of Securities to any Agent as principal shall be made in
accordance with the terms of this Agreement and (unless the Company and such
Agent shall otherwise agree) a Terms Agreement which will provide for the sale
of such Securities to, and the purchase thereof by, such Agent; a Terms
Agreement may also specify certain provisions relating to the reoffering of such
Securities by such Agent; the commitment of any Agent to purchase Securities as
principal, whether pursuant to any Terms Agreement or otherwise, shall be deemed
to have been made on the basis of the representations and warranties of the
Company herein contained and shall be subject to the terms and conditions herein
set forth; each Terms Agreement shall specify the principal amount of Securities
to be purchased by any Agent pursuant thereto, the price to be paid to the
Company for such Securities, any provisions relating to rights of, and default
by, underwriters acting together with such Agent in the reoffering of the
Securities and the time and date and place of delivery of and payment for such
Securities; and such Terms Agreement shall also specify any requirements for
opinions of counsel, accountants' letters and officers' certificates pursuant to
Section 4 hereof. Each Agent proposes to offer Securities purchased by it as
principal for sale at prevailing market prices or prices related thereto at the
time of sale, which may be equal to, greater than or less than the price at
which such Securities are purchased by such Agent from the Company. For each
sale of Securities to an Agent as principal that is not made pursuant to a Terms
Agreement, the procedural details relating to the issue and delivery of such
Securities and
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<PAGE>
payment therefor shall be as set forth in the Administrative Procedure. For
each such sale of Securities to an Agent as principal that is not made pursuant
to a Terms Agreement, the Company agrees to pay such Agent a commission (or
grant an equivalent discount) as provided in Section 2(a) hereof and in
accordance with the schedule set forth therein. Each time and date of delivery
of and payment for Securities to be purchased by an Agent as principal, whether
set forth in a Terms Agreement or in accordance with the Administrative
Procedure, is referred to herein as a "Time of Delivery".
(c) Each Agent agrees, with respect to any Security denominated in a
currency other than U.S. dollars, as agent, directly or indirectly, not to
solicit offers to purchase, and as principal under any Terms Agreement or
otherwise, directly or indirectly, not to offer, sell or deliver, such Security
in, or to residents of, the country issuing such currency, except as permitted
by applicable law.
3. The documents required to be delivered pursuant to Section 6
hereof on the Commencement Date (as defined below) shall be delivered to the
Agents at the offices of Sullivan & Cromwell, 125 Broad Street, New York, New
York, at 11:00 a.m., New York City time, on the date of this Agreement, which
date and time of such delivery may be postponed by agreement between the Agents
and the Company but in no event shall be later than the day prior to the date on
which solicitation of offers to purchase Securities is commenced or on which any
Terms Agreement is executed (such time and date being referred to herein as the
"Commencement Date").
4. The Company covenants and agrees with each Agent:
(a) (i) To make no amendment or supplement to the Registration
Statement or the Prospectus (A) prior to the Commencement Date which shall be
disapproved by any Agent promptly after reasonable notice thereof or (B) after
the date of any Terms Agreement or other agreement by an Agent to purchase
Securities as principal and prior to the related Time of Delivery which shall be
disapproved by any Agent party to such Terms Agreement or so purchasing as
principal promptly after reasonable notice thereof; (ii) to prepare, with
respect to any Securities to be sold through or to such Agent pursuant to this
Agreement, a Pricing Supplement with respect to such Securities in a form
previously approved by such Agent and to file such Pricing Supplement pursuant
to Rule 424(b)(3) under the Act not later than the close of business of the
Commission on the fifth business day after
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<PAGE>
the date on which such Pricing Supplement is first used; (iii) to make no
amendment or supplement to the Registration Statement or Prospectus, other than
any Pricing Supplement, at any time prior to having afforded each Agent a
reasonable opportunity to review and comment thereon; (iv) to file within the
periods prescribed by the applicable rules and regulations under the Exchange
Act all reports and any definitive proxy or information statements required to
be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Securities, and during
such same period to advise such Agent, promptly after the Company receives
notice thereof, of the time when any amendment to the Registration Statement has
been filed or has become effective or any supplement to the Prospectus or any
amended Prospectus (other than any Pricing Supplement that relates to Securities
not purchased through or by such Agent) has been filed with the Commission, of
the issuance by the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amendment or supplement of
the Registration Statement or Prospectus or for additional information; and (v)
in the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any such prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as such Agent
reasonably may request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as such Agent may request and to comply
with such laws so as to permit the continuance of sales and dealings therein for
as long as may be necessary to complete the distribution or sale of the
Securities; provided, however, that in connection therewith the Company shall
-------- -------
not be required to qualify as a foreign corporation or to file a general consent
to service of process in any jurisdiction;
(c) To furnish such Agent with copies of the Registration Statement
and each amendment thereto, with copies of the Prospectus as each time amended
or supplemented, other than any Pricing Supplement (except as provided in the
Administrative Procedure), in the form in which it is filed with the Commission
pursuant to Rule 424(b) under the Act, and with copies of the documents
-11-
<PAGE>
incorporated by reference therein, all in such quantities as such Agent may
reasonably request from time to time; and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the Securities
(including Securities purchased from the Company by such Agent as principal) and
if at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if, in the opinion
of the Company, for any other reason it shall be necessary during such same
period to amend or supplement the Prospectus or to file under the Exchange Act
any document incorporated by reference in the Prospectus in order to comply with
the Act, the Exchange Act or the Trust Indenture Act, to notify such Agent and
request such Agent, in its capacity as agent of the Company, to suspend
solicitation of offers to purchase Securities from the Company (and, if so
notified, such Agent shall cease such solicitations as soon as practicable, but
in any event not later than one business day later); and if the Company shall
decide to amend or supplement the Registration Statement or the Prospectus as
then amended or supplemented, to so advise such Agent promptly by telephone
(with confirmation in writing) and to prepare and cause to be filed promptly
with the Commission an amendment or supplement to the Registration Statement or
the Prospectus as then amended or supplemented that will correct such statement
or omission or effect such compliance; provided, however, that if during such
-------- -------
same period such Agent continues to own Securities purchased from the Company by
such Agent as principal or such Agent is otherwise required to deliver a
prospectus in respect of transactions in the Securities, the Company shall
promptly prepare and file with the Commission such an amendment or supplement;
(d) As soon as practicable after the date of each acceptance by the
Company of an offer to purchase Securities hereunder, but in any event not later
than the Applicable Availability Date (as defined below), the Company will make
generally available to its security holders an earnings statement covering a
period of at least 12 months beginning after the Applicable Effective Date (as
defined below) which will satisfy the provisions of Section 11(a) of the Act and
the rules and regulations of the Commission thereunder. For the purpose of the
preceding sentence only, "Applicable Effective Date" means the latest of (i) the
effective date of the registration statement relating to the Registered
Securities, (ii) the effective date of the most recent post-
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<PAGE>
effective amendment to such registration statement to become effective prior to
the date of such acceptance and (iii) the date of filing of the Company's most
recent Annual Report on Form 10-K filed with the Commission prior to the date of
such acceptance, and "Applicable Availability Date" means (A) the 45th day after
the end of the fourth fiscal quarter following the fiscal quarter that includes
the Applicable Effective Date or (B) if such fourth fiscal quarter is the last
quarter of the Company's fiscal year, the 90th day after the end of such fourth
fiscal quarter;
(e) So long as any Securities are outstanding, to furnish to such
Agent copies of all reports or other communications (financial or other)
furnished to stockholders, and deliver to such Agent (i) as soon as they are
available, copies of any reports and financial statements furnished to or filed
with the Commission or any national securities exchange on which any class of
securities of the Company is listed; and (ii) such additional information
concerning the business and financial condition of the Company as such Agent may
from time to time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to its stockholders generally
or to the Commission);
(f) That, from the date of any Terms Agreement with such Agent or
other agreement by such Agent to purchase Securities as principal and continuing
to and including the earlier of (i) the termination of the trading restrictions
for the Securities purchased thereunder, as notified to the Company by such
Agent and (ii) the related Time of Delivery, the Company will not, without the
prior written consent of such Agent, offer, sell, contract to sell or otherwise
dispose of any debt securities of the Company which mature more than nine months
after such Time of Delivery and which are substantially similar to the
Securities;
(g) That each acceptance by the Company of an offer to purchase
Securities hereunder (including any purchase by such Agent as principal not
pursuant to a Terms Agreement), and each execution and delivery by the Company
of a Terms Agreement with such Agent, shall be deemed to be an affirmation to
such Agent that the representations and warranties of the Company contained in
or made pursuant to this Agreement are true and correct as of the date of such
acceptance or of such Terms Agreement, as the case may be, as though made at and
as of such date, and an undertaking that such representations and warranties
will be true and correct as of the settlement date for the Securities relating
to such acceptance or as of the Time of Delivery
-13-
<PAGE>
relating to such sale, as the case may be, as though made at and as of such date
(except that such representations and warranties shall be deemed to relate to
the Registration Statement and the Prospectus as amended and supplemented
relating to such Securities);
(h) That reasonably in advance of each time the Registration Statement
or the Prospectus shall be amended or supplemented (other than by a Pricing
Supplement) and each time a document filed under the Act or the Exchange Act is
incorporated by reference into the Prospectus, and each time the Company sells
Securities to such Agent as principal pursuant to a Terms Agreement and such
Terms Agreement specifies the delivery of an opinion or opinions by Sullivan &
Cromwell, counsel to the Agents, as a condition to the purchase of Securities
pursuant to such Terms Agreement, the Company shall furnish to such counsel such
papers and information as they may reasonably request to enable them to furnish
to such Agent the opinion or opinions referred to in Section 6(b) hereof;
(i) That (i) each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a Pricing Supplement) and each
time a document filed under the Act or the Exchange Act is incorporated by
reference into the Prospectus and (ii) each time the Company sells Securities to
such Agent as principal pursuant to a Terms Agreement and such Terms Agreement
specifies the delivery of opinions under this Section 4(i) as a condition to the
purchase of Securities pursuant to such Terms Agreement, the Company shall
furnish or cause to be furnished forthwith to such Agent written opinions of the
General Counsel of the Company and other counsel for the Company satisfactory to
such Agent, dated the date of such amendment, supplement, incorporation or Time
of Delivery relating to such sale, as the case may be, in the forms satisfactory
to such Agent, to the effect that such Agent may rely on the opinions of such
counsel referred to in Sections 6(c) and 6(d) hereof which were last furnished
to such Agent to the same extent as though they were dated the date of such
letters authorizing reliance (except that the statements in such last opinions
shall be deemed to relate to the Registration Statement and the Prospectus as
amended and supplemented to such date) or, in lieu of such opinions, opinions of
the same tenor as the opinions of such counsel referred to in Sections 6(c) and
6(d) hereof but modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date; provided, however, that the
failure to furnish such written opinions pursuant to clause (i) above shall not
constitute a breach of this Agreement so long as such written opinions are or
have been delivered at or prior to the first time of delivery relating to any
sale of Securities by the Company to any Agent as principal or agent pursuant to
this Agreement after the date of such amendment, supplement or incorporation;
(j) That (i) each time the Registration Statement or the Prospectus
shall be amended or supplemented and each
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<PAGE>
time that a document filed under the Act or the Exchange Act is incorporated by
reference into the Prospectus, in either case to set forth financial information
included in or derived from the Company's consolidated financial statements or
accounting records, and (ii) each time the Company sells Securities to such
Agent as principal pursuant to a Terms Agreement and such Terms Agreement
specifies the delivery of a letter under this Section 4(j) as a condition to the
purchase of Securities pursuant to such Terms Agreement, the Company shall cause
the independent public accountants who have certified the financial statements
of the Company and its subsidiaries included or incorporated by reference in the
Registration Statement forthwith to furnish such Agent a letter, dated the date
of such amendment, supplement, incorporation or Time of Delivery relating to
such sale, as the case may be, in form satisfactory to such Agent, of the same
tenor as the letter referred to in Section 6(f) hereof but modified to relate to
the Registration Statement and the Prospectus as amended or supplemented to the
date of such letter, with such changes as may be necessary to reflect changes in
the financial statements and other information derived from the accounting
records of the Company, to the extent such financial statements and other
information are available as of a date not more than five business days prior to
the date of such letter; provided, however, that the failure to furnish such
-------- -------
letter pursuant to clause (i) above shall not constitute a breach of this
Agreement so long as such letter is or has been delivered at or prior to the
first time of delivery relating to any sale of Securities by the Company to any
Agent as principal or agent pursuant to this Agreement after the date of such
amendment, supplement or incorporation; and provided, further, that if the
-------- -------
additional financial information provided by such amendment, supplement or
document incorporated by reference includes only unaudited quarterly financial
information, the scope of such letter may be limited to relate to such unaudited
financial information unless any other accounting or financial information
included or incorporated by reference therein is of a character that, in the
reasonable judgment of such Agent, such letter should address such other
information;
(k) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by a Pricing Supplement), each time a
document filed under the Act or the Exchange Act is incorporated by reference
into the Prospectus, and each time the Company sells Securities to such Agent as
principal and the applicable Terms Agreement specifies the delivery of a
certificate under this Section 4(k) as a condition to the purchase of Securities
pursuant to such Terms Agreement, the Company shall furnish or cause to be
furnished forthwith to such Agent a certificate, dated the date of such
supplement, amendment, incorporation or Time of Delivery relating to such sale,
as the case may be, in such form and executed by such officers of the Company as
shall be satisfactory to such Agent, to the effect that the statements contained
in the certificates referred to in Section 6(j) hereof which
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<PAGE>
were last furnished to such Agent are true and correct at such date as though
made at and as of such date (except that such statements shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such date) or, in lieu of such certificate, certificates of the
same tenor as the certificates referred to in said Section 6(j) but modified to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such date; and
(l) To offer to any person who has agreed to purchase Securities from
the Company as the result of an offer to purchase solicited by such Agent the
right to refuse to purchase and pay for such Securities if, on the related
settlement date fixed pursuant to the Administrative Procedure, any condition
set forth in Section 6(a), 6(g) or 6(h) hereof shall not have been satisfied (it
being understood that the judgment of such person with respect to the
impracticability or inadvisability of such purchase of securities shall be
substituted, for purposes of this Section 4(l), for the respective judgments of
an Agent with respect to certain matters referred to in such Sections 6(a), 6(g)
and 6(h), and that such Agent shall have no duty or obligation whatsoever to
exercise the judgment permitted under such Sections 6(a), 6(g) or 6(h) on behalf
of any such person).
5. The Company covenants and agrees with each Agent that the Company
will pay or cause to be paid the following: (i) the fees and expenses of the
Company's counsel and accountants in connection with the registration of the
Securities under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any Preliminary
Prospectus, the Prospectus and any Pricing Supplements and all other amendments
and supplements thereto and the mailing and delivering of copies thereof to such
Agent; (ii) the reasonable fees and expenses of counsel for the Agents in
connection with the establishment of the program contemplated hereby and the
transactions contemplated hereunder; (iii) the reasonable out-of-pocket expenses
of such Agent; (iv) the cost of printing, preparing by word processor or
reproducing this Agreement, any Terms Agreement, any Indenture, any Blue Sky and
Legal Investment Memoranda and any other documents in connection with the
offering, purchase, sale and delivery of the Securities; (v) all expenses in
connection with the qualification of the Securities for offering and sale under
state securities laws as provided in Section 4(b) hereof, including fees and
disbursements of counsel for the Agents in connection with such qualification
and in connection with the Blue Sky and
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<PAGE>
legal investment surveys; (vi) any fees charged by securities rating services
for rating the Securities; (vii) any filing fees incident to any required review
by the National Association of Securities Dealers, Inc. of the terms of the sale
of the Securities; (viii) the cost of preparing the Securities; (ix) the fees
and expenses of any Trustee and any agent of any Trustee and any transfer or
paying agent of the Company and the fees and disbursements of counsel for any
Trustee or such agent in connection with any Indenture and the Securities; (x)
any advertising expenses connected with the solicitation of offers to purchase
and the sale of Securities so long as such advertising expenses have been
approved by the Company; and (xi) all other costs and expenses incident to the
performance of the Company's obligations hereunder which are not otherwise
specifically provided for in this Section. Except as provided in Sections 7 and
8 hereof, each Agent shall pay all other expenses it incurs.
6. The obligation of any Agent, as agent of the Company, at any time
("Solicitation Time") to solicit offers to purchase the Securities and the
obligation of any Agent to purchase Securities as principal, pursuant to any
Terms Agreement or otherwise, shall in each case be subject, in such Agent's
discretion, to the condition that all representations and warranties and other
statements of the Company herein (and, in the case of an obligation of an Agent
under a Terms Agreement, in or incorporated in such Terms Agreement by
reference) are true and correct at and as of the Commencement Date and any
applicable date referred to in Section 4(k) hereof that is prior to such
Solicitation Time or Time of Delivery, as the case may be, and at and as of such
Solicitation Time or Time of Delivery, as the case may be, the condition that
prior to such Solicitation Time or Time of Delivery, as the case may be, the
Company shall have performed all of its obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) (i) With respect to any Securities sold at or prior to such
Solicitation Time or Time of Delivery, as the case may be, the Prospectus as
amended or supplemented (including the Pricing Supplement) with respect to such
Securities shall have been filed with the Commission pursuant to Rule 424(b)
under the Act within the applicable time period prescribed for such filing by
the rules and regulations under the Act and in accordance with Section 4(a)
hereof; (ii) no stop order suspending the effectiveness of any part of the
Registration Statement shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and (iii) all
requests for additional information on the part of the
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<PAGE>
Commission shall have been complied with to the reasonable satisfaction of such
Agent;
(b) Sullivan & Cromwell, counsel to the Agents, shall have furnished
to such Agent (i) such opinion or opinions, dated the Commencement Date, with
respect to the incorporation of the Company, the validity of the Indenture, the
Securities, the Registration Statement, the Prospectus as amended or
supplemented and other related matters as such Agent may reasonably request, and
(ii) if and to the extent requested by such Agent, with respect to each
applicable date referred to in Section 4(h) hereof that is on or prior to such
Solicitation Time or Time of Delivery, as the case may be, an opinion or
opinions, dated such applicable date, to the effect that such Agent may rely on
the opinion or opinions which were last furnished to such Agent pursuant to this
Section 6(b) to the same extent as though it or they were dated the date of such
letter authorizing reliance (except that the statements in such last opinion or
opinions shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date) or, in any case, in lieu of
such an opinion or opinions, an opinion or opinions of the same tenor as the
opinion or opinions referred to in clause (i) but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
date; and in each case such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(c) The General Counsel of the Company shall have furnished to such
Agent his written opinion, dated the Commencement Date and each applicable date
referred to in Section 4(i) hereof that is on or prior to such Solicitation Time
or Time of Delivery, as the case may be, in form and substance satisfactory to
such Agent to the effect that:
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus as
amended or supplemented;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus as amended or supplemented and all of the issued shares of
capital stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable and all such shares are owned
directly or indirectly by
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<PAGE>
Pitney Bowes, free and clear of all liens, encumbrances, security interests
or claims;
(iii) To the best of such counsel's knowledge and other than as set
forth or contemplated in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is a
party or to which any property of the Company or any of its subsidiaries is
subject, which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the current consolidated financial position,
stockholders' equity, results of operations or prospects of the Company and
its subsidiaries; and to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(iv) This Agreement and any applicable Terms Agreement have been
duly authorized, executed and delivered by the Company;
(v) The establishment of the Series constituting the Securities has
been duly authorized, and, when the terms of a particular Security have
been duly established in conformity with the Indenture, the issue and sale
of such Security have been duly authorized by all necessary corporate
action in conformity with the Indenture and so as not to violate any
applicable law or agreement or instrument then binding on the Company and
such Security has been duly prepared, executed, authenticated and issued in
accordance with the Indenture, and delivered against payment therefor as
contemplated by the Distribution Agreement, such Security will constitute a
valid and legally binding obligation of the Company entitled to the
benefits provided by the Indenture, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Indenture conforms and the Securities will conform to the descriptions
thereof in the Prospectus as amended or supplemented;
(vi) The Indenture has been duly authorized, executed and delivered
by the parties thereto and constitutes a valid and legally binding
instrument, enforceable in accordance with its terms subject, as to
enforcement, to bankruptcy, insolvency,
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<PAGE>
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Indenture has been duly qualified under the Trust Indenture Act;
(vii) The issue and sale of the Securities, the compliance by the
Company with all of the provisions of the Securities, the Indenture, this
Agreement and any applicable Terms Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such counsel to which
the Company or Pitney Bowes is a party or by which the Company or Pitney
Bowes is bound or to which any of the property or assets of the Company or
Pitney Bowes is subject, nor will such action result in any violation of
the provisions of the Certificate of Incorporation, as amended, of the
Company or the By-Laws of the Company or any statute or any order, rule or
regulation known to such counsel of any court or governmental agency or
body having jurisdiction over the Company or any of its properties;
(viii) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is
required for the solicitation of offers to purchase Securities, the issue
and sale of the Securities or the consummation by the Company of the other
transactions contemplated by this Agreement, any applicable Terms
Agreement, or the Indenture, except such as have been obtained under the
Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the solicitation by
the Agents of offers to purchase Securities from the Company and with
purchases of Securities by an Agent as principal, as the case may be, in
each case in the manner contemplated hereby;
(ix) Neither the Company nor any of its material subsidiaries is in
violation of its Certificate of Incorporation, as amended, or By-Laws or in
default in the performance or observance of any material obligation,
covenant or condition contained in any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which it is
-20-
<PAGE>
a party or by which it or any of its properties may be bound;
(x) The statements set forth in the Prospectus under the caption
"Description of Debt Securities" and "Description of Notes", insofar as
they purport to constitute a summary of the terms of the Securities, and
under the captions "Supplemental Plan of Distribution" and "Plan of
Distribution", insofar as they purport to describe the provisions of the
laws and documents referred to therein, are accurate, complete and fair;
(xi) The Company is not and, after giving effect to the offering and
sale of the Securities, will not be an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act;
(xii) The documents incorporated by reference in the Prospectus
(other than the financial statements and related schedules therein, as to
which such counsel need express no opinion), when they became effective or
were filed with the Commission, as the case may be, complied as to form in
all material respects with the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission thereunder;
and such counsel has no reason to believe that any of such documents, when
they became effective or were so filed, as the case may be, contained, in
the case of a registration statement which became effective under the Act,
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, and, in the case of other documents which were filed under
the Act or the Exchange Act with the Commission, an untrue statement of a
material fact or omitted to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made when such documents were so filed, not misleading; and
(xiii) (a) The Registration Statement and the Prospectus as amended
or supplemented and any further amendments and supplements thereto made by
the Company prior to the date of such opinion (other than the financial
statements and related schedules therein, as to which such counsel need
express no opinion) comply as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the
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<PAGE>
rules and regulations thereunder; although such counsel does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus, except for those
referred to in the opinion in subsection (x) of this Section 6(c), such
counsel has no reason to believe that, as of its effective date the
Registration Statement or any further amendment or supplement thereto made
by the Company prior to the date of such opinion (other than the financial
statements and related schedules therein, as to which such counsel need
express no opinion), the Prospectus, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that,
as of the date of such opinion, the Prospectus or any further amendment or
supplement thereto made by the Company prior to the date of such opinion
(other than the financial statements and related schedules therein, as to
which such counsel need express no opinion) contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and (b) such
counsel does not know of any amendment to the Registration Statement
required to be filed or any contracts or other documents of a character
required to be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Prospectus as amended or
supplemented or required to be described in the Registration Statement or
the Prospectus as amended or supplemented which are not filed or
incorporated by reference or described as required;
(d) Counsel for the Company satisfactory to such Agent shall have
furnished to such Agent their written opinion, dated the Commencement Date and
each applicable date referred to in Section 4(i) (other than each time a
document filed under the Act or Exchange Act is incorporated by reference) that
is on or prior to such Solicitation Time or Time of Delivery, as the case may
be, in form and substance satisfactory to such Agent to the same effect as
subparagraphs (iv), (v), (vi) and (xiii)(a) of Section 6(c) hereof;
(e) Counsel for the Company satisfactory to such Agent shall have
furnished to such Agent their written opinion, dated the Commencement Date
-22-
<PAGE>
may be, in form and substance satisfactory to such Agent to the effect that the
statements made in the Prospectus under the caption "United States Taxation", to
the extent they constitute matters of law or legal conclusions, have been
reviewed by such counsel and are accurate, correct and fairly present the
information set forth therein;
(f) Not later than 10:00 a.m., New York City time, on the
Commencement Date and on each applicable date referred to in Section 4(j) hereof
that is on or prior to such Solicitation Time or Time of Delivery, as the case
may be, the independent certified public accountants who have certified the
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement shall have furnished to
such Agent a letter, dated the Commencement Date or such applicable date, as the
case may be, in form and substance satisfactory to such Agent, to the effect set
forth in Annex III hereto;
(g) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus as amended or supplemented prior to
the date of the Pricing Supplement relating to the Securities to be delivered at
the relevant Time of Delivery any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus as amended or
supplemented prior to the date of the Pricing Supplement relating to the
Securities to be delivered at the relevant Time of Delivery and (ii) since the
respective dates as of which information is given in the Prospectus as amended
or supplemented prior to the date of the Pricing Supplement relating to the
Securities to be delivered at the relevant Time of Delivery there shall not have
been any change in the capital stock or long-term debt of the Company or any of
its subsidiaries, or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus as
amended or supplemented prior to the date of the Pricing Supplement relating to
the Securities to be delivered at the relevant Time of Delivery, the effect of
which, in any such case described in clause (i) or (ii), is in the judgment of
such Agent so material and adverse as to make it impracticable or inadvisable to
proceed with the solicitation by such Agent of offers to purchase Securities
from the Company or the purchase by such Agent of Securities
-23-
<PAGE>
from the Company as principal, as the case may be, on the terms and in the
manner contemplated in the Prospectus as amended or supplemented prior to the
date of the Pricing Supplement relating to the Securities to be delivered at the
relevant Time of Delivery;
(h) There shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New
York Stock Exchange; (ii) a general moratorium on commercial banking activities
in New York declared by either Federal or New York State authorities; (iii) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the effect
of any such event specified in this clause (iii) in the judgment of such Agent
makes it impracticable or inadvisable to proceed with the solicitation of offers
to purchase Securities or the purchase by such Agent of Securities from the
Company as principal, pursuant to the applicable Terms Agreement or otherwise,
as the case may be, on the terms and in the manner contemplated in the
Prospectus as amended or supplemented; or (iv) (x) any downgrading in the rating
accorded the Company's debt securities by any "nationally recognized statistical
rating organization", as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the Act or (y) any such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities;
(i) With respect to any Security denominated in a currency other than
the U.S. dollar, more than one currency or a composite currency or any Security
the principal or interest of which is indexed to such currency, currencies or
composite currency, there shall not have occurred a suspension or material
limitation in foreign exchange trading in such currency, currencies or composite
currency by a major international bank, a general moratorium on commercial
banking activities in the country or countries issuing such currency, currencies
or composite currency, the outbreak or escalation of hostilities involving, the
financial, political or economic conditions of, or the declaration of war or a
national emergency by, the country or countries issuing such currency,
currencies or composite currency or the imposition or proposal of exchange
controls by any governmental authority in the country or countries issuing such
currency, currencies or composite currency; and
(j) The Company shall have furnished or caused to be furnished to such
Agent certificates of officers of the Company dated the Commencement Date and
each applicable date
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<PAGE>
referred to in Section 4(k) hereof that is on or prior to such Solicitation Time
or Time of Delivery, as the case may be, in such form and executed by such
officers of the Company as shall be satisfactory to such Agent, as to the
accuracy of the representations and warranties of the Company herein at and as
of the Commencement Date or such applicable date, as the case may be, as to the
performance by the Company of all of its obligations hereunder to be performed
at or prior to the Commencement Date or such applicable date, as the case may
be, as to the matters set forth in subsections (a) and (g) of this Section 6,
and as to such other matters as such Agent may reasonably request.
7. (a) The Company will indemnify and hold harmless each Agent
against any losses, claims, damages or liabilities, joint or several, to which
such Agent may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus, the Prospectus as amended or supplemented, or any
other prospectus relating to the Securities or any amendment 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 will reimburse such Agent for any
legal or other expenses reasonably incurred by it in connection with
investigating or defending any such action or claim; provided, however, that the
-------- -------
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement, the Prospectus, the Prospectus as
amended or supplemented or any other prospectus relating to the Securities or
any such amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company by such Agent expressly for use
therein.
(b) Each Agent will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any
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<PAGE>
other prospectus relating to the Securities, or any amendment 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, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, the Registration
Statement, the Prospectus, the Prospectus as amended or supplemented or any
other prospectus relating to the Securities, or any such amendment or supplement
in reliance upon and in conformity with written information furnished to the
Company by such Agent expressly for use therein; and will reimburse the Company
for any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an
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<PAGE>
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and each Agent on the
other from the offering of the Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party 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 each Agent on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and each Agent on the other shall be deemed to be in the same
proportion as the total net proceeds from the sale of Securities (before
deducting expenses) received by the Company bear to the total commissions or
discounts received by such Agent in respect thereof. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading relates to information supplied by the Company
on the one hand or by any Agent on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and each Agent agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were
determined by per capita allocation (even if all Agents were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to
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<PAGE>
above in this subsection (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), each Agent shall not be
required to contribute any amount in excess of the amount by which the total
public offering price at which the Securities purchased by or through such Agent
were sold exceeds the amount of any damages which such Agent has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of each of the Agents under this subsection (d) to contribute are
several in proportion to the respective purchases made by or through it to which
such loss, claim, damage or liability (or action in respect thereof) relates and
are not joint.
(e) The obligations of the Company under this Section 7 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Agent within the meaning of the Act; and the obligations of each Agent under
this Section 7 shall be in addition to any liability which such Agent may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company and to each person, if any, who controls the
Company within the meaning of the Act.
8. Each Agent, in soliciting offers to purchase Securities from the
Company and in performing the other obligations of such Agent hereunder (other
than in respect of any purchase by an Agent as principal, pursuant to a Terms
Agreement or otherwise), is acting solely as agent for the Company and not as
principal. Each Agent will make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer to purchase Securities from
the Company was solicited by such Agent and has been accepted by the Company,
but such Agent shall not have any liability to the Company in the event such
purchase is not consummated for any reason. If the Company shall default on its
obligation to deliver Securities to a purchaser whose offer it has accepted, the
Company shall (i) hold each Agent harmless against any loss, claim or damage
arising from or as a result of such default by the Company and (ii)
notwithstanding such default, pay to the Agent that
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<PAGE>
solicited such offer any commission to which it would be entitled in connection
with such sale.
9. The respective indemnities, agreements, representations,
warranties and other statements by any Agent and the Company set forth in or
made pursuant to this Agreement shall remain in full force and effect regardless
of any investigation (or any statement as to the results thereof) made by or on
behalf of any Agent or any controlling person of any Agent or the Company, or
any officer or director or any controlling person of the Company, and shall
survive each delivery of and payment for any of the Securities.
10. The provisions of this Agreement relating to the solicitation of
offers to purchase Securities from the Company may be suspended or terminated at
any time by the Company as to any Agent or by any Agent as to such Agent upon
the giving of written notice of such suspension or termination to such Agent or
the Company, as the case may be. In the event of such suspension or termination
with respect to any Agent, (x) this Agreement shall remain in full force and
effect with respect to any Agent as to which such suspension or termination has
not occurred, (y) the Company shall not have any liability to such Agent and
such Agent shall not have any liability to the Company, except as provided in
any Terms Agreements and in the fourth paragraph of Section 2(a), Section 4(d),
Section 4(e), Section 5, Section 7, Section 8 and Section 9 and except that (i)
so long as such Agent owns Securities with a view to reselling such Securities,
the Company shall continue to have the obligations provided in subsections (a),
(b), (c) and (e) of Section 4 and (ii), until the later of the date of the last
settlement of a purchase of Securities resulting from a solicitation made by
such Agent prior to such suspension or termination and the last Time of Delivery
with respect to any Terms Agreement to which such Agent is a party, the Company
and such Agent shall continue to have the respective obligations provided in the
Administrative Procedure and the Company shall continue to have the obligations
provided in subsections (a), (b), (c) and (e) through (l) of Section 4.
11. Except as otherwise specifically provided herein or in the
Administrative Procedure, all statements, requests, notices and advices
hereunder shall be in writing, or by telephone if promptly confirmed in writing,
and if to Goldman, Sachs & Co. shall be sufficient in all respects when
delivered or sent by facsimile transmission or registered mail to 85 Broad
Street, New York, New York 10004, Facsimile Transmission No. (212) 357-8680,
Attention: Credit Department, Credit Control--Medium-Term Notes, if to
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<PAGE>
CS First Boston Corporation to 55 East 52nd Street, New York, New York 10055-
0186, Facsimile Transmission No. (212) 310-1226, Attention: Betsy Malloy and
Facsimile Transmission No. (212) 318-1298, Attention: Robert Mitchell, if to
Merrill Lynch, Pierce, Fenner & Smith Incorporated to World Financial Center,
North Tower, New York, New York 10281-1307, Facsimile Transmission No. (212)
449-2234, Attention: Scott Primrose and Facsimile Transmission No. (212) 449-
0162, Attention: Robert Little, if to Chase Securities, Inc. to One Chase
Manhattan Plaza, 35th Floor, New York, New York 10081, Facsimile Transmission
No. (212) 552-1507, Attention: Medium Term Note Desk, if to Citicorp
Securities, Inc. to 399 Park Avenue, 7th Floor, Zone 3, New York, New York
10043, Facsimile Transmission No. (212) 291- 3190, Attention: MTN Desk Head, if
to First Chicago Capital Markets, Inc. to One First National Plaza, Mail Suite
0595, Chicago, Illinois 60670-0595, Facsimile Transmission No. (312) 732-7954,
Attention: Investment Grade Securities and Facsimile Transmission No. (312) 373-
1391, Attention: Head, IGS Transaction Group, or if to NationsBanc Capital
Markets, Inc. to NationsBank Corporate Center, 7th Floor, 100 North Tryon
Street, NC1-007-07-01, Charlotte, North Carolina 28255, Facsimile Transmission
No. (704) 388-9939, Attention: Lynn McConnell and if to the Company shall be
sufficient in all respects when delivered or sent by facsimile transmission or
registered mail to 201 Merritt Seven, Norwalk, Connecticut 06856-5151, Facsimile
Transmission No. (203) 846-5630, Attention: Treasurer.
12. This Agreement and any Terms Agreement shall be binding upon, and
inure solely to the benefit of, each Agent and the Company, and to the extent
provided in Sections 7, 8 and 9 hereof, the officers and directors of the
Company and any person who controls any Agent or the Company, and their
respective personal representatives, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement or any
Terms Agreement. No purchaser of any of the Securities through or from any
Agent hereunder shall be deemed a successor or assign by reason merely of such
purchase.
13. Time shall be of the essence in this Agreement and any Terms
Agreement. As used herein, the term "business day" shall mean any day when the
office of the Commission in Washington, D.C. is normally open for business.
14. This Agreement and any Terms Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
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<PAGE>
15. This Agreement and any Terms Agreement may be executed by any one
or more of the parties hereto and thereto in any number of counterparts, each of
which shall be an original, but all of such respective counterparts shall
together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us three counterparts hereof, whereupon this letter and the
acceptance by each of you thereof shall constitute a binding agreement between
the Company and each of you in accordance with its terms.
Very truly yours,
PITNEY BOWES CREDIT
CORPORATION
By:______________________________
Title: Vice President -
Finance
By:______________________________
Title: Treasurer
Accepted in New York, New York,
as of the date hereof:
_________________________________
(Goldman, Sachs & Co.)
CS First Boston Corporation
By:
---------------------------
Name:
Title:
Merrill Lynch, Pierce, Fenner & Smith Incorporated
By:
---------------------------
Name:
Title:
Chase Securities, Inc.
By:
---------------------------
Name:
Title:
Citicorp Securities, Inc.
By:
--------------------------
Name:
Title:
First Chicago Capital Markets, Inc.
By:
--------------------------
Name:
Title:
NationsBanc Capital Markets, Inc.
By:
--------------------------
Name:
Title:
-31-
<PAGE>
ANNEX I
-------
PITNEY BOWES CREDIT CORPORATION
[Title of Security]
[$,000,000]
Medium-Term Notes, Series C
TERMS AGREEMENT
---------------
__, 19__
[Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.]
[CS First Boston Corporation,
55 East 52nd Street,
New York, New York 10055-0186.]
[Merrill Lynch, Pierce,
Fenner & Smith Incorporated,
World Financial Center, North Tower,
New York, New York 10281-1307.]
[Chase Securities, Inc.,
One Chase Manhattan Plaza,
35th Floor,
New York, New York 10081.]
[Citicorp Securities, Inc.,
399 Park Avenue, 7th Floor,
Zone 3,
New York, New York 10043.]
[First Chicago Capital Markets, Inc.,
One First National Plaza,
Mail Suite 0595,
Chicago, Illinois 60670-0595.]
[NationsBanc Capital Markets, Inc.,
NationsBank Corporate Center, 7th Floor,
100 North Tryon Street,
NC1-007-07-01,
Charlotte, North Carolina 28255.]
Dear Sirs:
Pitney Bowes Credit Corporation (the "Company") proposes, subject to
the terms and conditions stated herein
<PAGE>
and in the Distribution Agreement, dated October __, 1995 (the "Distribution
Agreement"), between the Company on the one hand and Goldman, Sachs & Co., CS
First Boston Corporation, Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Chase Securities, Inc., Citicorp Securities, Inc., First Chicago Capital
Markets, Inc. and NationsBanc Capital Markets, Inc. (the "Agents") on the other,
to issue and sell to [Goldman, Sachs & Co.,] [CS First Boston Corporation,]
[Merrill Lynch, Pierce, Fenner & Smith Incorporated,] [Chase Securities, Inc.,]
[Citicorp Securities, Inc.,] [First Chicago Capital Markets, Inc.] [NationsBanc
Capital Markets, Inc.] the securities specified in the Schedule hereto (the
"Purchased Securities"). Each of the provisions of the Distribution Agreement
not specifically related to the solicitation by the Agents, as agent of the
Company, of offers to purchase Securities is incorporated herein by reference in
its entirety, and shall be deemed to be part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein. Nothing
contained herein or in the Distribution Agreement shall make any party hereto an
agent of the Company or make such party subject to the provisions therein
relating to the solicitation of offers to purchase Securities from the Company,
solely by virtue of its execution of this Terms Agreement. Each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Terms Agreement, except that each
representation and warranty in Section 1 of the Distribution Agreement which
makes reference to the Prospectus shall be deemed to be a representation and
warranty as of the date of the Distribution Agreement in relation to the
Prospectus (as therein defined), and also a representation and warranty as of
the date of this Terms Agreement in relation to the Prospectus as amended and
supplemented to relate to the Purchased Securities.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Purchased Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Distribution Agreement incorporated herein by reference, the Company agrees to
issue and sell to [Goldman, Sachs & Co.,] [CS First Boston Corporation,]
[Merrill Lynch, Pierce, Fenner & Smith Incorporated,] [Chase Securities, Inc.,]
[Citicorp Securities, Inc.,] [First Chicago Capital Markets, Inc.,] [NationsBanc
Capital Markets, Inc.,] and [Goldman, Sachs & Co.,] [CS First Boston
I-2
<PAGE>
Corporation,] [Merrill Lynch, Pierce, Fenner & Smith Incorporated,] [Chase
Securities, Inc.,] [Citicorp Securities, Inc.,] [First Chicago Capital Markets,
Inc.,] [NationsBanc Capital Markets, Inc.,] agree[s] to purchase from the
Company the Purchased Securities, at the time and place, in the principal amount
and at the purchase price set forth in the Schedule hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us two counterparts hereof, and upon acceptance hereof by you this
letter and such acceptance hereof, including those provisions of the
Distribution Agreement incorporated herein by reference, shall constitute a
binding agreement between you and the Company.
PITNEY BOWES CREDIT
CORPORATION
By:____________________________
Authorized Officer
Accepted:
[_______________________________
(Goldman, Sachs & Co.)]
[CS First Boston Corporation]
[Merrill Lynch, Pierce, Fenner & Smith Incorporated]
[Chase Securities, Inc.]
[Citicorp Securities, Inc.]
[First Chicago Capital Markets, Inc.]
[NationsBanc Capital Markets, Inc.]
By:____________________________
Name:
Title:
I-3
<PAGE>
Schedule to Annex I
Title of Purchased Securities:
[ % Notes due ] Medium-Term Notes, Series C
Aggregate Principal Amount:
$ or units of other Specified Currency
[Price to Public:]
Purchase Price by [Goldman, Sachs & Co.,] [CS First Boston Corporation,]
[Merrill Lynch, Pierce, Fenner & Smith Incorporated,] [Chase Securities,
Inc.,] [Citicorp Securities, Inc.,] [First Chicago Capital Markets, Inc.,]
[NationsBanc Capital Markets, Inc.]
% of the principal amount of the Purchased Securities, [plus accrued
interest from to ] [and accrued amortization from to ]
Method of and Specified Funds for Payment of Purchase Price:
[By certified or official bank check or checks, payable to the order of the
Company, in [[New York] Clearing House] [immediately available] funds]
[By wire transfer to a bank account specified by the Company in [next day]
[immediately available] funds]
Indenture:
Indenture, dated as of November 1, 1995, between the Company and Chemical
Bank, as Trustee
Time of Delivery:
Closing Location:
Maturity:
I-4
<PAGE>
Interest Rate:
[ %]
Interest Payment Dates:
[months and dates]
Documents to be Delivered:
The following documents referred to in the Distribution Agreement shall be
delivered as a condition to the Closing:
[(1) The opinion or opinions of counsel to the Agents referred to in
Section 4(h).]
[(2) The opinions of counsel to the Company referred to in Section
4(i).]
[(3) The accountants' letter referred to in Section 4(j).]
[(4) The officers' certificate referred to in Section 4(k).]
Other Provisions (including Syndicate Provisions, if applicable):
I-5
<PAGE>
ANNEX II
--------
PITNEY BOWES CREDIT CORPORATION
Administrative Procedure
------------------------
This Administrative Procedure relates to the Securities defined in the
Distribution Agreement, dated November __, 1995 (the "Distribution Agreement"),
between Pitney Bowes Credit Corporation (the "Company") and Goldman, Sachs &
Co., CS First Boston Corporation, Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Chase Securities, Inc., Citicorp Securities, Inc., First Chicago
Capital Markets, Inc. and NationsBanc Capital Markets, Inc. (together, the
"Agents"), to which this Administrative Procedure is attached as Annex II.
Defined terms used herein and not defined herein shall have the meanings given
such terms in the Distribution Agreement, the Prospectus as amended or
supplemented or the Indenture.
The procedures to be followed with respect to the settlement of sales
of Securities directly by the Company to purchasers solicited by an Agent, as
agent, are set forth below. The terms and settlement details related to a
purchase of Securities by an Agent, as principal, from the Company will be set
forth in a Terms Agreement pursuant to the Distribution Agreement, unless the
Company and such Agent otherwise agree as provided in Section 2(b) of the
Distribution Agreement, in which case the procedures to be followed in respect
of the settlement of such sale will be as set forth below. An Agent, in
relation to a purchase of a Security by a purchaser solicited by such Agent, is
referred to herein as the "Selling Agent" and, in relation to a purchase of a
Security by such Agent as principal other than pursuant to a Terms Agreement, as
the "Purchasing Agent".
The Company will advise each Agent in writing of those persons with
whom such Agent is to communicate regarding offers to purchase Securities and
the related settlement details.
Each Security will be issued only in fully registered form and will be
represented by either a global security (a "Global Security") delivered to the
Trustee, as agent for The Depository Trust Company (the "Depositary") and
recorded in the book-entry system maintained by the Depositary (a "Book-Entry
Security") or a certificate issued in definitive form (a "Certificated
Security") delivered to a person designated by an Agent, as set forth in the
applicable Pricing Supplement. An owner of a Book-Entry Security will not be
entitled to receive a certificate representing such a Security, except as
provided in the Indenture.
<PAGE>
Book-Entry Securities will be issued in accordance with the
Administrative Procedure set forth in Part I hereof, and Certificated Securities
will be issued in accordance with the Administrative Procedure set forth in Part
II hereof.
PART I: ADMINISTRATIVE PROCEDURE FOR BOOK-ENTRY SECURITIES
In connection with the qualification of the Book-Entry Securities for
eligibility in the book-entry system maintained by the Depositary, the Trustee
will perform the custodial, document control and administrative functions
described below, in accordance with its respective obligations under a Letter of
Representation from the Company and the Trustee to the Depositary, dated the
date hereof, and a Medium-Term Note Certificate Agreement between the Trustee
and the Depositary, dated as of December 2, 1988 (the "Certificate Agreement"),
and its obligations as a participant in the Depositary, including the
Depositary's Same-Day Funds Settlement System ("SDFS").
Posting Rates by the Company:
- ----------------------------
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Book-Entry Securities that
may be sold as a result of the solicitation of offers by an Agent. The Company
may establish a fixed set of interest rates and maturities for an offering
period ("posting"). If the Company decides to change already posted rates, it
will promptly advise the Agents to suspend solicitation of offers until the new
posted rates have been established with the Agents.
Acceptance of Offers by the Company:
- -----------------------------------
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Book-Entry Securities,
other than those rejected by such Agent. Each Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part. Each
Agent also may make offers to the Company to purchase Book-Entry Securities as a
Purchasing Agent. The Company will have the sole right to accept offers to
purchase Book-Entry Securities and may reject any such offer in whole or in
part.
The Company will promptly notify the Agent or Purchasing Agent, as the
case may be, of its acceptance or rejection of an offer to purchase Book-Entry
Securities. If
II-2
<PAGE>
the Company accepts an offer to purchase Book-Entry Securities, it will confirm
such acceptance in writing to the Selling Agent or Purchasing Agent, as the case
may be, and the Trustee.
Communication of Sale Information to the Company by Agent and Settlement
- ------------------------------------------------------------------------
Procedures:
- ----------
A. After the acceptance of an offer by the Company, the Selling Agent
or Purchasing Agent, as the case may be, will communicate promptly, but in no
event later than the time set forth under "Settlement Procedure Timetable"
below, the following details of the terms of such offer (the "Sale Information")
to the Company by telephone (confirmed in writing) or by facsimile transmission
or other acceptable written means:
(1) Principal Amount of Book-Entry Securities to be purchased;
(2) If a Fixed Rate Book-Entry Security, the interest rate and
initial interest payment date;
(3) Trade Date;
(4) Settlement Date;
(5) Maturity Date;
(6) Specified Currency and, if the Specified Currency is other than
U.S. dollars, the applicable Exchange Rate for such Specified Currency (it
being understood that currently the Depositary accepts deposits of Global
Securities denominated in U.S. dollars only);
(7) Indexed Currency, the Base Rate and the Exchange Rate
Determination Date, if applicable;
(8) Issue Price;
(9) Selling Agent's commission or Purchasing Agent's discount, as the
case may be;
(10) Net Proceeds to the Company;
(11) If a redeemable Book-Entry Security, such of the following as are
applicable:
(i) Redemption Commencement Date,
II-3
<PAGE>
(ii) Initial Redemption Price (% of par), and
(iii) Amount (% of par) that the Redemption Price shall decline
(but not below par) on each anniversary of the Redemption Commencement
Date;
(12) If a Floating Rate Book-Entry Security, such of the following as
are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(13) Name, address and taxpayer identification number of the
registered owner(s);
(14) Denomination of certificates to be delivered at settlement;
(15) Book-Entry Security or Certificated Security; and
(16) Selling Agent or Purchasing Agent.
B. After receiving the Sale Information from the Selling Agent
or Purchasing Agent, as the case may be, the Company will communicate such Sale
Information to the Trustee by facsimile transmission or other acceptable written
means. The Trustee will assign a CUSIP number to the Global Security from a
list of CUSIP numbers previously delivered to the Trustee by the Company
representing such
II-4
<PAGE>
Book-Entry Security and then advise the Company and the Selling Agent or
Purchasing Agent, as the case may be, of such CUSIP number.
C. The Trustee will enter a pending deposit message through the
Depositary's Participant Terminal System, providing the following settlement
information to the Depositary, and the Depositary shall forward such information
to such Agent and Standard & Poor's Corporation:
(1) The applicable Sale Information;
(2) CUSIP number of the Global Security representing such Book-Entry
Security;
(3) Whether such Global Security will represent any other Book-Entry
Security (to the extent known at such time);
(4) Number of the participant account maintained by the Depositary on
behalf of the Selling Agent or Purchasing Agent, as the case may be;
(5) The interest payment period; and
(6) Initial Interest Payment Date for such Book-Entry Security,
number of days by which such date succeeds the record date for the
Depositary's purposes (or, in the case of Floating Rate Securities which
reset daily or weekly, the date five calendar days immediately preceding
the applicable Interest Payment Date and, in the case of all other Book-
Entry Securities, the Regular Record Date, as defined in the Security) and,
if calculable at that time, the amount of interest payable on such Interest
Payment Date.
D. The Trustee will complete and authenticate the Global Security
previously delivered by the Company representing such Book-Entry Security.
E. The Depositary will credit such Book-Entry Security to the
Trustee's participant account at the Depositary.
F. The Trustee will enter an SDFS deliver order through the
Depositary's Participant Terminal System instructing the Depositary to (i) debit
such Book-Entry Security to the Trustee's participant account and credit such
Book-Entry Security to such Agent's participant account and (ii) debit such
Agent's settlement account and credit the Trustee's settlement account for an
amount equal to the
II-5
<PAGE>
price of such Book-Entry Security less such Agent's commission. The entry of
such a deliver order shall constitute a representation and warranty by the
Trustee to the Depositary that (a) the Global Security representing such Book-
Entry Security has been issued and authenticated and (b) the Trustee is holding
such Global Security pursuant to the Certificate Agreement.
G. Such Agent will enter an SDFS deliver order through the
Depositary's Participant Terminal System instructing the Depositary (i) to debit
such Book-Entry Security to such Agent's participant account and credit such
Book-Entry Security to the participant accounts of the Participants with respect
to such Book-Entry Security and (ii) to debit the settlement accounts of such
Participants and credit the settlement account of such Agent for an amount equal
to the price of such Book-Entry Security.
H. Transfers of funds in accordance with SDFS deliver orders
described in Settlement Procedures "F" and "G" will be settled in accordance
with SDFS operating procedures in effect on the settlement date.
I. Upon confirmation of receipt of funds, the Trustee will
transfer to the account of the Company maintained at Mellon Bank, New York,
New York, or such other account as the Company may have previously specified to
the Trustee, in funds available for immediate use in the amount transferred to
the Trustee in accordance with Settlement Procedure "F".
J. Upon request, the Trustee will send to the Company a
statement setting forth the principal amount of Book-Entry Securities
outstanding as of that date under the Indenture.
K. Such Agent will confirm the purchase of such Book-Entry
Security to the purchaser either by transmitting to the Participants with
respect to such Book-Entry Security a confirmation order or orders through the
Depositary's institutional delivery system or by mailing a written confirmation
to such purchaser.
L. The Depositary will, at any time, upon request of the Company
or the Trustee, promptly furnish to the Company or the Trustee a list of the
names and addresses of the participants for whom the Depositary has credited
Book-Entry Securities.
II-6
<PAGE>
Preparation of Pricing Supplement:
- ---------------------------------
If the Company accepts an offer to purchase a Book-Entry Security, it
will prepare a Pricing Supplement reflecting the terms of such Book-Entry
Security and arrange to have delivered to the Selling Agent or Purchasing Agent,
as the case may be, at least ten copies of such Pricing Supplement, not later
than 12:00 noon, New York City time, on the Business Day following the Trade
Date (as defined below). The Company will arrange to have ten Pricing
Supplements filed with the Commission not later than the close of business of
the Commission on the fifth Business Day following the date on which such
Pricing Supplement is first used.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
- ---------------------------------------------------------------------
The Selling Agent will deliver to the purchaser of a Book-Entry
Security a written confirmation of the sale and delivery and payment
instructions. In addition, the Selling Agent will deliver to such purchaser or
its agent the Prospectus as amended or supplemented (including the Pricing
Supplement) in relation to such Book-Entry Security prior to or together with
the earlier of the delivery to such purchaser or its agent of (a) the
confirmation of sale or (b) the Book-Entry Security.
Date of Settlement:
- ------------------
The receipt by the Company of immediately available funds in payment
for a Book-Entry Security and the authentication and issuance of the Global
Security representing such Book-Entry Security shall constitute "settlement"
with respect to such Book-Entry Security. All orders of Book-Entry Securities
solicited by a Selling Agent or made by a Purchasing Agent and accepted by the
Company on a particular date (the "Trade Date") will be settled on a date (the
"Settlement Date") which is the third Business Day after the Trade Date pursuant
to the "Settlement Procedure Timetable" set forth below, unless the Company and
the purchaser agree to settlement on another Business Day which shall be no
earlier than the next Business Day after the Trade Date.
II-7
<PAGE>
Settlement Procedure Timetable:
- ------------------------------
For orders of Book-Entry Securities solicited by a Selling Agent and
accepted by the Company for settlement on the third Business Day after the Trade
Date, Settlement Procedures "A" through "I" set forth above shall be completed
as soon as possible but not later than the respective times (New York City time)
set forth below:
<TABLE>
<CAPTION>
SETTLEMENT
PROCEDURE TIME
- ---------- ----
<S> <C> <C>
A 5:00 p.m. on the Business Day following the Trade
Date or 10:00 a.m. on the Business Day
prior to the Settlement Date, whichever
is earlier
B 12:00 noon on the second Business Day immediately
preceding the Settlement Date
C 2:00 p.m. on the second Business Day immediately
preceding the Settlement Date
D 9:00 a.m. on the Settlement Date
E 10:00 a.m. on the Settlement Date
F-G 2:00 p.m. on the Settlement Date
H 4:45 p.m. on the Settlement Date
I 5:00 p.m. on the Settlement Date
</TABLE>
If the initial interest rate for a Floating Rate Book-Entry Security
has not been determined at the time that Settlement Procedure "A" is completed,
Settlement Procedures "B" and "C" shall be completed as soon as such rate has
been determined but no later than 2:00 p.m. on the second Business Day
immediately preceding the Settlement Date. Settlement Procedure "H" is subject
to extension in accordance with any extension of Fedwire closing deadlines and
in the other events specified in the SDFS operating procedures in effect on the
Settlement Date.
If settlement of a Book-Entry Security is rescheduled or canceled, the
Trustee, upon obtaining knowledge thereof, will deliver to the Depositary,
through the Depositary's Participant Terminal System, a cancellation message to
such effect by no later than 2:00 p.m. on the Business Day immediately preceding
the scheduled Settlement Date.
II-8
<PAGE>
Failure to Settle:
- -----------------
If the Trustee fails to enter an SDFS deliver order with respect to a
Book-Entry Security pursuant to Settlement Procedure "F", the Trustee may
deliver to the Depositary, through the Depositary's Participant Terminal System,
as soon as practicable a withdrawal message instructing the Depositary to debit
such Book-Entry Security to the Trustee's participant account, provided that the
Trustee's participant account contains a principal amount of the Global Security
representing such Book-Entry Security that is at least equal to the principal
amount to be debited. If a withdrawal message is processed with respect to all
the Book-Entry Securities represented by a Global Security, the Trustee will
mark such Global Security "canceled", make appropriate entries in the Trustee's
records and send such canceled Global Security to the Company. The CUSIP number
assigned to such Global Security shall, in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately reassigned. If a withdrawal message
is processed with respect to one or more, but not all, of the Book-Entry
Securities represented by a Global Security, the Trustee will exchange such
Global Security for two Global Securities, one of which shall represent such
Book-Entry Security or Securities and shall be canceled immediately after
issuance and the other of which shall represent the remaining Book-Entry
Securities previously represented by the surrendered Global Security and shall
bear the CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Security is not timely paid
to the participants with respect to such Book-Entry Security by the beneficial
purchaser thereof (or a person, including an indirect participant in the
Depositary, acting on behalf of such purchaser), such participants and, in turn,
the Agent for such Book-Entry Security may enter deliver orders through the
Depositary's Participant Terminal System debiting such Book-Entry Security to
such participant's account and crediting such Book-Entry Security to such
Agent's account and then debiting such Book-Entry Security to such Agent's
participant account and crediting such Book-Entry Security to the Trustee's
participant account and shall notify the Company and the Trustee thereof.
Thereafter, the Trustee will (i) immediately notify the Company of such order
and the Company shall transfer to such Agent funds available for immediate use
in an amount equal to the price of such Book-Entry Security which was credited
to the account of the Company maintained at the Trustee in accordance with
Settlement Procedure I, and (ii) deliver the withdrawal message and take the
related actions described in the
II-9
<PAGE>
preceding paragraph. If such failure shall have occurred for any reason other
than default by the applicable Agent to perform its obligations hereunder or
under the Distribution Agreement, the Company will reimburse such Agent on an
equitable basis for the loss of its use of funds during the period when the
funds were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to settle with respect
to a Book-Entry Security, the Depositary may take any actions in accordance with
its SDFS operating procedures then in effect. In the event of a failure to
settle with respect to one or more, but not all, of the Book-Entry Securities to
have been represented by a Global Security, the Trustee will provide, in
accordance with Settlement Procedure "D", for the authentication and issuance of
a Global Security representing the other Book-Entry Securities to have been
represented by such Global Security and will make appropriate entries in its
records. The Company will, from time to time, furnish the Trustee with a
sufficient quantity of Securities.
PART II: ADMINISTRATIVE PROCEDURE FOR CERTIFICATED SECURITIES
Posting Rates by Company:
- ------------------------
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Certificated Securities
that may be sold as a result of the solicitation of offers by an Agent. The
Company may establish a fixed set of interest rates and maturities for an
offering period ("posting"). If the Company decides to change already posted
rates, it will promptly advise the Agents to suspend solicitation of offers
until the new posted rates have been established with the Agents.
Acceptance of Offers by Company:
- -------------------------------
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Certificated Securities,
other than those rejected by such Agent. Each Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part. Each
Agent also may make offers to the Company to purchase Certificated Securities as
a Purchasing Agent. The Company will have the sole right to accept offers to
purchase Certificated Securities and may reject any such offer in whole or in
part.
II-10
<PAGE>
The Company will promptly notify the Selling Agent or Purchasing
Agent, as the case may be, of its acceptance or rejection of an offer to
purchase Certificated Securities. If the Company accepts an offer to purchase
Certificated Securities, it will confirm such acceptance in writing to the
Selling Agent or Purchasing Agent, as the case may be, and the Trustee.
Communication of Sale Information to Company by Agent:
- -----------------------------------------------------
After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate the following details of
the terms of such offer (the "Sale Information") to the Company by telephone
(confirmed in writing) or by facsimile transmission or other acceptable written
means:
(1) Principal Amount of Certificated Securities to be purchased;
(2) If a Fixed Rate Certificated Security, the interest rate and
initial interest payment date;
(3) Trade Date;
(4) Settlement Date;
(5) Maturity Date;
(6) Specified Currency and, if the Specified Currency is other than
U.S. dollars, the applicable Exchange Rate for such Specified Currency;
(7) Indexed Currency, the Base Rate and the Exchange Rate
Determination Date, if applicable;
(8) Issue Price;
(9) Selling Agent's commission or Purchasing Agent's discount, as the
case may be;
(10) Net Proceeds to the Company;
(11) If a redeemable Certificated Security, such of the following as
are applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par), and
II-11
<PAGE>
(iii) Amount (% of par) that the Redemption Price shall decline
(but not below par) on each anniversary of the Redemption Commencement
Date;
(12) If a Floating Rate Certificated Security, such of the following
as are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(13) Name, address and taxpayer identification number of the
registered owner(s);
(14) Denomination of certificates to be delivered at settlement;
(15) Book-Entry Security or Certificated Security; and
(16) Selling Agent or Purchasing Agent.
Preparation of Pricing Supplement by Company:
- --------------------------------------------
If the Company accepts an offer to purchase a Certificated Security,
it will prepare a Pricing Supplement reflecting the terms of such Certificated
Security and arrange to have delivered to the Selling Agent or Purchasing Agent,
as the case may be, at least ten copies of such Pricing Supplement, not later
than 5:00 p.m., New York City time, on the Business Day following the Trade
Date, or if
II-12
<PAGE>
the Company and the purchaser agree to settlement on the date of acceptance of
such offer, not later than noon, New York City time, on such date. The Company
will arrange to have ten Pricing Supplements filed with the Commission not later
than the close of business of the Commission on the fifth Business Day following
the date on which such Pricing Supplement is first used.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
- ---------------------------------------------------------------------
The Selling Agent will deliver to the purchaser of a Certificated
Security a written confirmation of the sale and delivery and payment
instructions. In addition, the Selling Agent will deliver to such purchaser or
its agent the Prospectus as amended or supplemented (including the Pricing
Supplement) in relation to such Certificated Security prior to or together with
the earlier of the delivery to such purchaser or its agent of (a) the
confirmation of sale or (b) the Certificated Security.
Date of Settlement:
- ------------------
All offers of Certificated Securities solicited by a Selling Agent or
made by a Purchasing Agent and accepted by the Company will be settled on a date
(the "Settlement Date") which is the third Business Day after the date of
acceptance of such offer, unless the Company and the purchaser agree to
settlement (a) on another Business Day after the acceptance of such offer or (b)
with respect to an offer accepted by the Company prior to 10:00 a.m., New York
City time, on the date of such acceptance.
Instruction from Company to Trustee for Preparation of Certificated Securities:
- ------------------------------------------------------------------------------
After receiving the Sale Information from the Selling Agent or
Purchasing Agent, as the case may be, the Company will communicate such Sale
Information to the Trustee by telephone (confirmed in writing) or by facsimile
transmission or other acceptable written means.
The Company will instruct the Trustee by facsimile transmission or
other acceptable written means to authenticate and deliver the Certificated
Securities no later than 2:15 p.m., New York City time, on the Settlement Date.
Such instruction will be given by the Company prior to 3:00 p.m., New York City
time, on the Business Day immediately preceding the Settlement Date unless the
Settlement Date is the date of acceptance by the Company of the offer to
purchase Certificated Securities in which case
II-13
<PAGE>
such instruction will be given by the Company by 11:00 a.m., New York City time.
Preparation and Delivery of Certificated Securities by Trustee and Receipt of
- -----------------------------------------------------------------------------
Payment Therefor:
- ----------------
The Trustee will prepare each Certificated Security and appropriate
receipts that will serve as the documentary control of the transaction.
In the case of a sale of Certificated Securities to a purchaser
solicited by a Selling Agent, the Trustee will, by 2:15 p.m., New York City
time, on the Settlement Date, deliver the Certificated Securities to the Selling
Agent for the benefit of the purchaser of such Certificated Securities against
delivery by the Selling Agent of a receipt therefor. On the Settlement Date the
Selling Agent will deliver payment for such Certificated Securities in
immediately available funds to the Company in an amount equal to the issue price
of the Certificated Securities less the Selling Agent's commission; provided
that the Selling Agent reserves the right to withhold payment for which it has
not received funds from the purchaser. The Company shall not use any proceeds
advanced by a Selling Agent to acquire securities.
In the case of a sale of Certificated Securities to a Purchasing
Agent, the Trustee will, by 2:15 p.m., New York City time, on the Settlement
Date, deliver the Certificated Securities to the Purchasing Agent against
delivery of payment for such Certificated Securities in immediately available
funds to the Company in an amount equal to the issue price of the Certificated
Securities less the Purchasing Agent's discount.
Failure of Purchaser to Pay Selling Agent:
- -----------------------------------------
If a purchaser (other than a Purchasing Agent) fails to make payment
to the Selling Agent for a Certificated Security, the Selling Agent will
promptly notify the Trustee and the Company thereof by telephone (confirmed in
writing) or by facsimile transmission or other acceptable written means. The
Selling Agent will immediately return the Certificated Security to the Trustee.
Immediately upon receipt of such Certificated Security by the Trustee, the
Company will return to the Selling Agent an amount equal to the amount
previously paid to the Company in respect of such Certificated Security. The
Company will reimburse the Selling Agent on an equitable basis for its loss of
the use of funds during the period when they were credited to the account of the
Company.
II-14
<PAGE>
The Trustee will cancel the Certificated Security in respect of which
the failure occurred, make appropriate entries in its records and, unless
otherwise instructed by the Company, destroy the Certificated Security.
II-15
<PAGE>
ANNEX III
ACCOUNTANTS' LETTER
-------------------
Pursuant to Sections 4(j) and 6(f), as the case may be, of the
Distribution Agreement, the Company's independent certified public accountants
shall furnish letters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the Act
and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as applicable, and
the related published rules and regulations thereunder; and, if applicable,
they have made a review in accordance with standards established by the
American Institute of Certified Public Accountants of the consolidated
interim financial statements, selected financial data, and/or condensed
financial statements derived from audited financial statements of the
Company for the periods specified in such letter, as indicated in their
reports thereon, copies of which have been furnished to the Agents and are
attached hereto;
(iii) The unaudited selected financial information with respect
to the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the Prospectus
and included or incorporated by reference in Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for five such fiscal years which were
included or incorporated by reference in the Company's Annual Reports on
Form 10-K for such fiscal years;
(iv) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the
<PAGE>
foregoing procedures that caused them to believe that this information does
not conform in all material respects with the disclosure requirements of
Item 503(d) of Regulation S-K;
(v) On the basis of limited procedures, not constituting an
audit in accordance with generally accepted auditing standards, consisting
of a reading of the unaudited financial statements and other information
referred to below, a reading of the latest available interim financial
statements of the Company and its subsidiaries, inspection of the minute
books of the Company and its subsidiaries since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Company and its subsidiaries
responsible for financial and accounting matters and such other inquiries
and procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income and consolidated statements of retained earnings, consolidated
balance sheets and consolidated statements of cash flows included in
the Prospectus and/or included or incorporated by reference in the
Company's Quarterly Reports on Form 10-Q incorporated by reference in
the Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the Exchange Act and the
related published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed consolidated
statements of income and consolidated statements of retained earnings,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus or included in the Company's Quarterly
Reports on Form 10-Q incorporated by reference in the Prospectus for
them to be in conformity with generally accepted accounting
principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with the
basis for the corresponding
III-2
<PAGE>
amounts in the audited consolidated financial statements included or
incorporated by reference in the Company's Annual Report on Form 10-K
for the most recent fiscal year;
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived the unaudited condensed
financial statements referred to in clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in Clause (B) were not determined on a
basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(D) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock or any increase in the consolidated short-term or long-
term debt of the Company and its subsidiaries, or any decreases in
consolidated net finance assets or total assets or other items
specified by the Agents, or any increases in any items specified by
the Agents (in each case, if such information is available), in each
case as compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus, except in
each case for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such
letter; and
(E) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in Clause (D) there were any decreases
in consolidated finance income or consolidated income before taxes or
of consolidated net income or other items specified
III-3
<PAGE>
by the Agents, or any increases in any items specified by the Agents
(in each case, if such information is available), in each case as
compared with the comparable period of the preceding year and with any
other period of corresponding length specified by the Agents, except
in each case for increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter; and
(vi) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (v) above, they have carried out
certain specified procedures, not constituting an audit in accordance with
generally accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Agents which are
derived from the general accounting records of the Company and its
subsidiaries, which appear in the Prospectus (excluding documents
incorporated by reference), or in Part II of, or in exhibits and schedules
to, the Registration Statement specified by the Agents or in documents
incorporated by reference in the Prospectus specified by the Agents, and
have compared certain of such amounts, percentages and financial
information with the accounting records of the Company and its subsidiaries
and have found them to be in agreement.
All references in this Annex III to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Distribution Agreement as of the Commencement Date
referred to in Section 6(f) thereof and to the Prospectus as amended or
supplemented (including the documents incorporated by reference therein) as of
the date of the amendment, supplement, incorporation or the Time of Delivery
relating to the Terms Agreement requiring the delivery of such letter under
Section 4(j) thereof.
III-4
<PAGE>
EXHIBIT 4(a)
PITNEY BOWES CREDIT CORPORATION,
ISSUER
TO
CHEMICAL BANK,
TRUSTEE
----------------------
INDENTURE
Dated as of November 1, 1995
---------------------
<PAGE>
Reconciliation and tie/1/ between Trust Indenture Act of 1939, as amended,
and
Indenture, dated as of November 1, 1995
between
Pitney Bowes Credit Corporation, Issuer
and
Chemical Bank, Trustee
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
S 310(a)(1).................................. 609
(a)(2)................................... 609
(a)(3)................................... Not Applicable
(a)(4)................................... Not Applicable
(b)...................................... 608
......................................... 610
S 311(a)..................................... 613(a)
(b)...................................... 613(b)
(b)(2)................................... 703(a)(2)
S 312(a)..................................... 701
.... 702(a)
(b)...................................... 702(b)
(c)...................................... 702(c)
S 313(a)..................................... 703(a)
(b)...................................... 703(b)
(c)...................................... 703(a), 703(b)
(d)...................................... 703(c)
S 314(a)..................................... 704
(b)...................................... Not Applicable
(c)(1)................................... 102
(c)(2)................................... 102
(c)(3)................................... Not Applicable
(d)...................................... Not Applicable
(e)...................................... 102
S 315 (a).................................... 601(a)
(b)...................................... 602
......................................... 703(a)(6)
(c)...................................... 601(b)
(d)...................................... 601(c)
(d)(1)................................... 601(a)(1)
(d)(2)................................... 601(c)(2)
- ---------------
(1) Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
i
<PAGE>
(d)(3)................................... 601(c)(3)
(e)...................................... 514
S 316 (a).................................... 101
(a)(1)(A)................................ 502
......................................... 512
(a)(1)(B)................................ 513
(a)(2)................................... Not Applicable
(b)...................................... 508
S 317 (a)(1)................................. 503
(a)(2)................................... 504
(b)...................................... 1003
S 318 (a).................................... 107
ii
<PAGE>
TABLE OF CONTENTS
Page
PARTIES........................................................ 1
RECITALS OF THE COMPANY........................................ 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions...................................... 1
"Act"....................................... 2
"Affiliate"................................. 2
"Agent Member".............................. 2
"Authenticating Agent"...................... 2
"Board of Directors"........................ 2
"Board Resolution".......................... 2
"Business Day".............................. 2
"Commission"................................ 3
"Company"................................... 3
"Company Request"........................... 3
"Consolidated Net Tangible Assets".......... 3
"Corporate Trust Office".................... 3
"Corporation"............................... 3
"Defaulted Interest"........................ 3
"Depositary"................................ 4
"Event of Default".......................... 4
"Finance Agreement"......................... 4
"Holder".................................... 4
"Indenture"................................. 4
"Interest".................................. 4
"Interest Payment Date"..................... 4
"Leveraged Lease"........................... 4
"Maturity".................................. 5
"Officers' Certificate"..................... 5
"Opinion of Counsel"........................ 5
"Original Issue Discount Security".......... 5
"Outstanding"............................... 5
"Partnership"............................... 6
"Paying Agent".............................. 6
"Person".................................... 6
"Pitney Bowes".............................. 6
"Place of Payment".......................... 7
"Predecessor Security"...................... 7
"Redemption Date"........................... 7
"Redemption Price".......................... 7
"Regular Record Date"....................... 7
i
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Page
"Responsible Officer"....................... 7
"Secured Debt".............................. 7
"Securities"................................ 7
"Security Register"......................... 7
"Special Record Date"....................... 8
"Stated Maturity"........................... 8
"Subsidiary"................................ 8
"Trustee"................................... 8
"Trust Indenture Act"....................... 8
"U.S. Government Obligations"............... 8
"Vice President"............................ 9
"Wholly-owned Subsidiary"................... 9
SECTION 102. Compliance Certificates and Opinions............. 9
SECTION 103. Form of Documents Delivered to Trustee........... 10
SECTION 104. Acts of Holders.................................. 11
SECTION 105. Notices, Etc., to Trustee and Company............ 12
SECTION 106. Notice of Holders; Waiver........................ 12
SECTION 107. Conflict with Trust Indenture Act................ 13
SECTION 108. Effect of Headings and Table of Contents......... 13
SECTION 109. Successors and Assigns........................... 13
SECTION 110. Separability Clause.............................. 13
SECTION 111. Benefits of Indenture............................ 13
SECTION 112. Governing Law.................................... 14
SECTION 113. Legal Holidays................................... 14
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.................................. 14
SECTION 202. Form of Face of Security......................... 15
SECTION 203. Form of Reverse of Security...................... 17
SECTION 204. Form of Trustee's Certificate of Authentication.. 21
SECTION 205. Securities in Permanent Global Form.............. 21
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series............. 23
SECTION 302. Denominations.................................... 26
ii
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Page
SECTION 303. Execution, Authentication, Delivery and Dating... 26
SECTION 304. Temporary Securities............................. 28
SECTION 305. Registration, Registration of Transfer and
Exchange ................................... 29
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. 31
SECTION 307. Payment of Interest; Interest Rights Preserved... 32
SECTION 308. Persons Deemed Owners............................ 34
SECTION 309. Cancellation..................................... 34
SECTION 310. Computation of Interest.......................... 34
SECTION 311. Rights Under Finance Agreement................... 35
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.......... 35
SECTION 402. Defeasance of Securities of any Series........... 36
SECTION 403. Application of Trust Funds; Indemnification...... 38
SECTION 404. Reinstatement.................................... 39
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default................................ 40
SECTION 502. Acceleration of Maturity; Rescission and
Annulment................................... 42
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee...................... 43
SECTION 504. Trustee May File Proofs of Claim................. 44
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities.................................. 45
SECTION 506. Application of Money Collected................... 45
SECTION 507. Limitation on Suits.............................. 46
SECTION 508. Unconditional Right of Holders to Receive
Principal Premium and Interest.............. 47
SECTION 509. Restoration of Rights and Remedies............... 47
SECTION 510. Rights and Remedies Cumulative................... 47
SECTION 511. Delay or Omission Not Waiver..................... 48
SECTION 512. Control by Holders. ............................ 48
SECTION 513. Waiver of Past Defaults.......................... 48
iii
<PAGE>
Page
SECTION 514. Undertaking for Costs............................ 49
SECTION 515. Waiver of Usury, Stay or Extension Laws.......... 50
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.............. 50
SECTION 602. Notice of Defaults............................... 51
SECTION 603. Certain Rights of Trustee........................ 52
SECTION 604. Not Responsible for Recitals or Issuance of
Securities ................................. 53
SECTION 605. May Hold Securities.............................. 54
SECTION 606. Money Held in Trust.............................. 54
SECTION 608. Disqualification; Conflicting Interests.......... 55
SECTION 609. Corporate Trustee Required; Eligibility.......... 61
SECTION 610. Resignation and Removal; Appointment of
Successor .................................. 62
SECTION 611. Acceptance of Appointment by Successor........... 64
SECTION 612. Merger, Conversion, Consolidation or Succession
to Business................................. 65
SECTION 613. Preferential Collection of Claims Against Company 66
SECTION 614. Appointment of Authenticating Agent.............. 71
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses
of Holders ................................. 73
SECTION 702. Preservation of Information; Communications to
Holders .................................... 73
SECTION 703. Reports by Trustee............................... 75
SECTION 704. Reports by Company............................... 77
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
iv
<PAGE>
Page
SECTION 801. Company May Consolidate, Etc., only on Certain
Terms ...................................... 78
SECTION 802. Successor Corporation Substituted................ 79
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders .................................... 79
SECTION 902. Supplemental Indentures with Consent of Holders.. 81
SECTION 903. Execution of Supplemental Indentures............. 82
SECTION 904. Effect of Supplemental Indentures................ 82
SECTION 905. Conformity with Trust Indenture Act.............. 83
SECTION 906. Reference in Securities to Supplemental
Indentures.................................. 83
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium an Interest....... 83
SECTION 1002. Maintenance of Office or Agency................. 83
SECTION 1003. Money for Securities Payments to Be Held in
Trust ...................................... 84
SECTION 1004. Corporate Existence............................. 86
SECTION 1005. Payment of Taxes and Other Claims............... 86
SECTION 1006. Maintenance of Finance Agreement................ 86
SECTION 1007. Restriction on Creation of Secured Debt......... 87
SECTION 1008. Defeasance of Certain Obligations............... 89
SECTION 1010. Waiver of Certain Covenants..................... 91
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article........................ 92
SECTION 1102. Election to Redeem; Notice to Trustee........... 92
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed ................................... 92
v
<PAGE>
Page
SECTION 1104. Notice of Redemption............................ 93
SECTION 1105. Deposit of Redemption Price..................... 94
SECTION 1106. Securities Payable on Redemption Date........... 94
SECTION 1107. Securities Redeemed in Part..................... 94
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article........................ 95
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities ................................. 95
SECTION 1203. Redemption of Securities for Sinking Fund....... 96
vi
<PAGE>
INDENTURE, dated as of November 1, 1995, between PITNEY BOWES
CREDIT CORPORATION, a corporation duly organized and existing under the laws of
the States of Delaware (herein called the "Company"), having its principal
office at 201 Merritt Seven, Norwalk, Connecticut 06856-5151, and CHEMICAL
BANK, a banking corporation duly organized and existing under the laws of the
State of New York, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
1
<PAGE>
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and except as otherwise herein expressly provided,
the term "generally accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted at the date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent Member" means a member of, or participant in, a Depositary.
"Authenticating Agent" means any Person authorized by the Trustee
to act on behalf of the Trustee to authenticate Securities.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on which banking
2
<PAGE>
institutions in that Place of Payment are authorized or obligated by law to
close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934,
or, if at any time after the execution of this instrument such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its
President or a Vice President, and by its Treasurer, an Assistant Treasurer,
its Secretary or an Assistant Secretary, and delivered to the Trustee.
"Consolidated Net Tangible Assets" means as of any particular time
the aggregate amount of assets after deducting therefrom (a) all current
liabilities (excluding any such liability that by its terms is extendable or
renewable at the option of the obligor thereon to a time more than 12 months
after the time as of which the amount thereof is being computed) and (b) all
goodwill, excess of cost over assets acquired, patents, copyrights, trademarks,
trade names, unamortized debt discount and expense and other like intangibles,
all as shown in the most recent consolidated financial statements of the
Company and its Subsidiaries prepared in accordance with generally accepted
accounting principles.
"Corporate Trust Office" means the office of the Trustee in the
Borough of Manhattan, The City of New York at which at any particular time
corporate trust business shall be principally administered. At the date of
execution of this Indenture the address of the Corporate Trust Office is 450
West 33rd Street, New York, New York 10001.
"Corporation" includes corporations, associations, companies and
business trusts.
"Defaulted Interest" has the meaning specified in Section 307.
3
<PAGE>
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more permanent
global Securities, the Person designated as Depositary by the Company pursuant
to Section 301, which must be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and if at any time there is more than one
such Person, "Depositary" as used with respect to the Securities of any such
series shall mean the Depositary with respect to the Securities of that series.
"Event of Default" has the meaning specified in Section 501.
"Finance Agreement" means the Amended and Restated Finance
Agreement, dated as of June 12, 1995, between Pitney Bowes and the Company as
in effect on the date hereof or as it may from time to time be amended pursuant
to the applicable provisions hereof or thereof.
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 301.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an instalment of interest on such Security.
"Leveraged Lease" means a lease of tangible personal property in
which the Company or a Subsidiary (or an owner-trustee holding legal title for
the benefit of the Company or a Subsidiary) as owner and lessor shall have
acquired such property in whole or in part with funds borrowed from one or more
lenders, each of which shall agree that such loan is payable exclusively from
the rentals paid by the lessee or lessees of such property or, upon default of
such lessee or lessees, from the proceeds of sale of such property, and shall
agree that such loan is made absolutely without recourse to the lessor, any
affiliated entity, or, if present, any owner-trustee.
4
<PAGE>
"Maturity", when used with respect to any Security, means the date
on which the principal of such Security or an instalment of principal becomes
due and payable as therein or herein provided, whether at the Stated Maturity
or by declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money (a) in
the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such
Securities or (b) U.S. Government Obligations as contemplated by
Section 402 in the necessary amount have been theretofore deposited
with the Trustee (or another trustee satisfying the requirements of
Section 609) in trust for the Holders of such Securities in
accordance with Section 403; provided that, if such Securities are
to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made; and
5
<PAGE>
(iii) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than
any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee's right so to act with respect to such Securities
and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Partnership" means any joint venture, partnership or participation
by which the Company with one or more Persons forms a business arrangement to
own or acquire tangible personal property for the purpose of financing such
property and allocating rights to profits and liabilities for losses, and
establishing obligations, among the Company and such Persons relating to such
financing.
"Paying Agent" means any Person authorized by the Company to pay
the principal of (and premium, if any) or interest on any Securities on behalf
of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Pitney Bowes" means Pitney Bowes Inc., a Delaware corporation.
6
<PAGE>
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means
any officer within the Corporate Trustee Administration Department, including
any vice president, any assistant secretary, any trust officer or assistant
trust officer, or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers
and also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Secured Debt" means indebtedness for money borrowed which is
secured by a mortgage, pledge, lien, security interest or encumbrance on any
property of any character of the Company or any Subsidiary of the Company.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
7
<PAGE>
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
instalment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such instalment of principal or interest is due and payable.
"Subsidiary" means (i) with respect to the Company, a corporation
more than 50% of the outstanding Voting Stock of which is owned, directly or
indirectly, by the Company or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries and (ii) with respect to Pitney
Bowes, a corporation more than 50% of the outstanding voting stock of which is
owned, directly or indirectly, by Pitney Bowes or by one or more other
Subsidiaries, or by Pitney Bowes and one or more other Subsidiaries. For the
purposes of this definition, "Voting Stock" means stock which ordinarily has
voting power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall means only
the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as in force on the date on which this instrument was executed, except
as provided in Section 905.
"U.S. Government Obligations" means securities which are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of Americas, which, in either case
are not callable or redeemable at the option of the issuer thereof, and shall
also include a depositary receipt issued by a bank or trust company as
custodian with
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respect to any such U.S. Government Obligations or a specific payment of
interest on or principal of any such U.S. Government Obligation held by such
custodian for the account of the holder of a depository receipt, provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt for
any amount received by the custodian in respect to the U.S. Government
Obligation or the specific payment of interest on or principal of the U.S.
Government Obligation by such depository receipt.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Wholly-owned Subsidiary" means any Subsidiary of which, at the
time of determination, all of the outstanding voting stock (other than
directors' qualifying shares) is owned by the Company, or Pitney Bowes, as the
case may be, directly and/or indirectly. For purposes of this definition,
"voting stock" has the same meaning as under the definition of "Subsidiary".
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the
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statements or opinions contained in such certificate or opinion are
based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
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SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. If
any Securities are denominated in coin or currency other than that of the
United States, then for the purposes of determining whether the Holders of the
requisite principal amount of Securities have taken any action with respect to
the Securities of more than one series as herein described, the principal
amount of such Securities shall be deemed to be that amount of United States
dollars that could be obtained for such principal amount on the basis of the
spot rate of exchange into United States dollars for the currency in which such
Securities are denominated (as evidenced to the Trustee by an Officers'
Certificate) as of the date the taking of such action by the Holders of such
requisite principal amount is evidenced to the Trustee as provided in the
immediately preceding sentence. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Section
601) conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
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(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trustee Administration Department, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the
Company addressed to it at the address of its principal office specified
in the first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 106. Notice of Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Security Register,
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder shall affect the sufficiency of
such notice with respect to other Holders. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent
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of such notice. Waivers of notice by Holders shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture act, such required provision shall
control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the Parties hereto, any Authenticating
Agent, any Paying Agent, any Securities Registrar and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
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SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any) need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, provided that no interest shall accrue for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form
set forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with any law or any
rules or regulations pursuant thereto, or with the rules of any securities
exchange or to conform to general usage, all as may consistently herewith be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities. If the form of Securities of any series is
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
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The Trustee's certificates of authentication shall be in
substantially the form set forth in this Article.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 202. Form of Face of Security.
[If the Security is an original issue discount security for tax
purposes and is not "publicly offered" within the meaning of Treasury
Regulation 1.1275-1(h), For purposes of Sections 1271-1275 of the United States
Internal Revenue Code of 1986, as amended, the issue price of this Security is
....., the amount of original issue discount is ....., the issue date is
........, 19.. and the yield to maturity is .....]
PITNEY BOWES CREDIT CORPORATION
[Title of Security]
No. .... $ .....
Pitney Bowes Credit Corporation, a corporation duly organized and
existing under the laws of Delaware (herein called the "Company", which term
includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to ..........................
......................., or registered assigns, the principal sum of .........
................................ Dollars on ........................... [If the
Security is to bear interest prior to Maturity, insert-, and to pay interest
thereon from ....... or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually on ....... and
....... in each year, commencing ....., at the rate of ..% per annum, until the
principal hereof is paid or made available for payment [If applicable, insert
- -, and (to the extent that the payment of such interest shall be legally
enforceable) at the rate of ..% per annum on any overdue principal and premium
and on any overdue installment of interest]. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the .... or ....
(whether or not a
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Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said
Indenture].
[If the Security is not to bear interest prior to Maturity,
insert-The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon redemption or
at Stated Maturity and in such case the overdue principal of this Security
shall bear interest at the rate of ..% per annum (to the extent that the
payment of such interest shall be legally enforceable), which shall accrue from
the date of such default in payment to the date payment of such principal has
been made or duly provided for. Interest on any overdue principal that is not
so paid on demand shall bear interest at the rate of ...% per annum (to the
extent that the payment of such interest shall be legally enforceable), which
shall accrue from the date of such demand for payment to the date payment of
such interest has been made or duly provided for, and such interest shall also
be payable on demand.]
Payment of the principal of (and premium, if any) and [if
applicable insert,-any such] interest on this Security will be made at the
office or agency of the Company maintained for that purpose in the Borough of
Manhattan, The City of New York, in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and
private debts [if applicable, insert-; provided, however, that at the option of
the Company payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register].
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
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Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated:
PITNEY BOWES CREDIT CORPORATION
By ...........................
Attest:
..............................
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of
the Company (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of September 1, 1995 (herein called
the "Indenture"), between the Company and Chemical Bank, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof [, limited in aggregate principal amount to
$......].
[If applicable, insert-The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable,
insert-(1) on ........... in any year commencing with the year ......... and
ending with the year .............. through operation of the sinking fund for
this series at a Redemption Price equal to 100% of the principal amount, and
(2)] at any time [ on or after .........., 19....], as a whole or in part, at
the election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [on or before .......... ..,
....%, and if redeemed] during the 12-month period beginning
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............... of the years indicated,
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
and thereafter at a Redemption Price equal to ....% of the principal amount,
together in the case of any such redemption [if applicable, insert-(whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[If applicable, insert-The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on .......... in any
year commencing with the year ...... and ending with the year ...... through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [on or
after ..........], as a whole or in part, at the election of the Company, at
the Redemption Prices for redemption otherwise than through operation of the
sinking fund (expressed as percentages of the principal amount) set forth in
the table below: If redeemed during the 12 month period beginning ............
of the years indicated,
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ----------------- ----------------------
and thereafter at a Redemption Price equal to ....% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
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[Notwithstanding the foregoing, the Company may not, prior to
.......... redeem any Securities of this series as contemplated by [Clause (2)
of] the preceding paragraph as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of moneys borrowed having
an interest cost to the Company (calculated in accordance with generally
accepted financial practice) of less than ....% per annum.]
[The sinking fund for this series provides for the redemption on
...... in each year beginning with the year .......... and ending with the year
......... of [not less than] $......... [("mandatory sinking fund") and not
more than $............] aggregate principal amount of Securities of this
series. [Securities of this series acquired or redeemed by the Company
otherwise than through [mandatory] sinking fund payments may be credited
against subsequent [mandatory] sinking fund payments otherwise required to be
made-in the inverse order in which they become due.]
[In the event of redemption of this Security in part only, a new
Security or Securities of this series for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[The Indenture contains provisions for defeasance at any time of
(a) the entire indebtedness of this Security and (b) certain restrictive
covenants, in each case upon compliance by the Company with certain conditions
set forth therein, which provisions apply to this Security.]
[If the Security is not an Original Issue Discount Security,-If an
Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security,-If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to-insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and
payable and (ii) of interest on any overdue principal and overdue interest (in
each case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of
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and interest, if any, on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of a majority in principal amount of the Securities
at the time Outstanding of each series to be affected. The Indenture also
contains provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Security herein provided, and at the
times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this Security are payable, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities
of this series, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $.... and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
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forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
SECTION 204. Form of Trustee's Certificate of Authentication.
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
CHEMICAL BANK,
as Trustee
By ....................................
Authorized Officer
SECTION 205. Securities in Permanent Global Form.
If the Company shall establish pursuant to Section 301 that the
Securities of a series are to be issued in whole or in part in permanent global
form, then notwithstanding Section 301(8) and the provisions of Section 302,
any such Security shall represent such of the Outstanding Securities of such
series as shall be specified therein and may provide that it shall represent
the aggregate amount of Outstanding Securities from time to time endorsed
thereon and that the aggregate amount of Outstanding Securities represented
thereby may from time to time be reduced to reflect exchanges. Any endorsement
of a
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Security in permanent global form to reflect the amount, or any increase or
decrease in the amount, of Outstanding Securities represented thereby shall be
made by the Trustee or the Security Registrar in such manner and upon
instructions given by such Person or Persons as shall be specified in such
Security in permanent global form or in the Company Order to be delivered to
the Trustee pursuant to Section 303 or Section 304. Subject to the provisions
of Section 303 and, if applicable, Section 304, the Trustee or the Security
Registrar shall deliver and redeliver any Security in permanent global form in
the manner and upon instructions given by the Person or Persons specified in
such Security or in the applicable Company Order. If a Company Order pursuant
to Section 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement or delivery or
redelivery of a global Security shall be in writing but need not comply with
Section 102 and need not be accompanied by an Officer's Certificate or an
Opinion of Counsel, provided that the permanent global Security to be
--------
endorsed, delivered or redelivered has previously been covered by an Opinion of
Counsel.
The provisions of the last sentence of Section 303 shall only apply
to any Security represented by a Security in permanent global form if such
Security was never issued and sold by the Company and the Company delivers to
the Trustee or the Security Registrar the Security in permanent global form
together with written instructions (which need not comply with Section 102 and
need not be accompanied by an Officer's Certificate of an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Security in permanent global form
authenticated and delivered hereunder shall bear a legend in substantially the
following form:
THIS SECURITY IS A SECURITY IN PERMANENT GLOBAL FORM AND IS REGISTERED IN THE
NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED
IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY
IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN
SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
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ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officer's Certificate,
or established in one or more indentures supplemental hereto, prior to the
issuance of Securities of any series
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or
in lieu of, other Securities of the series pursuant to Section 304,
305, 306, 906 or 1107) and except for any Securities which,
pursuant to Section 303 of the Indenture, shall have not been
issued and sold by the Company and are therefore deemed never to
have been authenticated and delivered hereunder;
(3) the date or dates on which the principal of the
Securities of the series is payable;
(4) the Person to whom any interest on any Security of the
series shall be payable if other than as set forth in Section 307;
the rate or rates at which the Securities of the series shall bear
any interest or the manner of calculation of such rate or rates, if
any, the date or dates from which any such interest shall accrue,
the Interest Payment Dates on which any such interest shall be
payable or the manner of determination of such Interest Payment
Dates and the Regular Record Date, or the manner of determination
of such
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Regular Record Date, for the interest payable on any Interest
Payment Date;
(5) the place or places where the principal of (and
premium, if any) and interest on Securities of the series shall be
payable;
(6) the period or periods within which the price or prices
at which and the terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of the
Company and, if other than by a Board Resolution, the manner in
which any election by the Company to redeem the Securities shall be
evidenced;
(7) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which the price or prices at which and the
terms and conditions upon which Securities of the series shall be
redeemed or purchased in whole or in part, pursuant to such
obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the
series shall be issuable;
(9) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502;
(10) the application, if any of Section 402 or, with respect
to any negative or restrictive covenants of the Company (other than
those contained in this Indenture) applicable to the Securities of
the series, Section 1008;
(11) whether the Securities of the series are to be issuable
in whole or in part in permanent global form, without coupons, and,
if so, (i) the form of any legend or legends which shall be borne
by any such permanent global Security in addition to or in lieu of
that set forth in Section 205, (ii) any circumstances in addition
to or in lieu of those set forth in Clause (2) of the last
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paragraph of Section 305 in which such permanent global Security
may be exchanged in whole or in part for Securities registered, and
any transfer of such permanent global Security in whole or in part
may be registered, in the name of Persons other than the Depositary
for such permanent global Security or a nominee thereof and (iii)
the Depositary with respect to any such permanent global Security
or Securities;
(12) the currency or currencies, including composite
currencies, in which payment of the principal of (and premium, if
any) and any interest on the Securities of the series shall be
payable if other than the currency of the United States of America;
(13) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the
Company or the Holder thereof, in one or more currencies or
currency units other than that or those in which such Securities
are stated to be payable, the currency, currencies or currency
units in which the principal of or any premium or interest on such
Securities as to which such election is made shall be payable, the
periods within which and the terms and conditions upon which such
election is to be made and the amount so payable (or the manner in
which such amount shall be determined);
(14) if the amount of payments of principal of (and premium,
if any) or any interest on the Securities of the series may be
determined with reference to an index or pursuant to a formula, the
manner in which such amounts shall be determined;
(15) if the principal amount payable at the Stated Maturity
of any Securities of the series will not be determinable as of any
one or more dates prior to the Stated Maturity, the amount which
shall be deemed to be the principal amount of such Securities as of
any such date for any purpose thereunder or hereunder, including
the principal amount thereof which shall be due and payable upon
any Maturity other than the Stated Maturity or which shall be
deemed to be Outstanding as of any date prior to the Stated
Maturity (or, in any such case, the manner in
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which such amount deemed to be the principal amount shall be
determined); and
(16) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to the Board Resolution referred to above and (subject to Section 303)
set forth in the Officer's Certificate referred to above or in any such
indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable in registered form
without coupons and, except for any Security issuable in permanent global form,
in such denominations as shall be specified in accordance with Section 301. In
the absence of such provisions with respect to the Securities of any series,
the Securities of such series, other than a Security issuable in permanent
global form, shall be issuable in denominations of $1,000 and any integral
multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President, one of its Vice Presidents or its
Treasurer, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
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At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series executed by
the Company to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Section
601) shall be fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such form has
been established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such terms have
been established in conformity with the provisions of this Indenture; and
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting the enforcement of creditors'
rights and to general equity principles.
If such form or terms have been so established, the Trustee shall
not be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officer's Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of
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authentication of each Security of such series if such documents are delivered
at or prior to the time of authentication upon original issuance of the first
Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Security
a certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture.
Notwithstanding the foregoing and subject, in the case of a
Security in permanent global form, to Section 205, if any Security shall have
been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written statement
(which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) directing such cancellation and stating that such Security
has never been issued and sold by the Company, for all purposes of this
Indenture such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable
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for definitive Securities of such series upon surrender of the temporary
Securities of such series at the office or agency of the Company in a Place of
Payment for that series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the same series
and of like tenor of authorized denominations. Until so exchanged the
temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering Securities
and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees one or more new Securities of
the same series of any authorized denominations and of a like aggregate
principal amount and of like tenor.
At the option of the Holder, Securities of any series may be
exchanged for other of the same series, of any authorized denominations and of
a like aggregate principal amount and of like tenor, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
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Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
1103 and ending at the close of business on the day of such day of such
mailing, or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply
only to permanent global Securities:
(1) Each permanent global Security authenticated under this
Indenture shall be registered in the name of the Depositary designated
for such permanent global Security or a nominee thereof and delivered to
such Depositary or a nominee thereof or custodian therefor, and each such
permanent global Security shall constitute a single Security for all
purposes of this Indenture.
(2) Notwithstanding any other provisions in this Indenture, no
permanent global Security may be exchanged in whole or in part for
Securities registered, and no transfer of a permanent global Security in
whole or in part may be registered, in the name of any Person other than
the Depositary for such permanent global Security or a nominee thereof
unless (a) the Depositary notifies the Company that it is unwilling or
unable to continue as Depositary for such
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permanent global Security or if at any time the Depositary ceases to be a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, (b) if the Company in its sole discretion determines that such
permanent global Security shall be so exchangeable or transferrable and
executes and delivers to the Security Registrar a Company Order providing
that such permanent global Security shall be so exchangeable or
transferrable, or (c) any event shall have occurred and be continuing
which, after notice or lapse of time, or both, would become an Event of
Default with respect to the securities of the series of which such
permanent global Security is a part.
(3) Subject to Clause (2) above, any exchange of a permanent
global Security for other Securities may be made in whole or in part, and
all Securities issued in exchange for a permanent global Security or any
portion thereof shall be registered in such names as the Depositary for
such permanent global Security shall direct.
(4) Every Security authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, a permanent global
Security or any portion thereof, whether pursuant to this Section,
Section 304, 306, 906 or 1107 or otherwise, shall be authenticated and
delivered in the form of, and shall be, a permanent global Security,
unless such Security is registered in the name of a Person other than the
Depositary for such permanent global Security or a nominee thereof.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
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expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest; provided that if that Security or its Predecessor Security
was originally issued on a date after a Regular Record Date and before the
following Interest Payment Date, the first payment of interest on such Security
will be made on the Interest Payment Date following the next succeeding Regular
Record Date. Interest payable at Maturity (other than on a date which is an
Interest Payment Date) will be paid to the same Person to whom the principal
amount of this Security is payable.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such
series (or their respective Predecessor Securities) are registered
at the close of business on a Special Record Date
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for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on
each Security of such series and the date of the proposed payment,
and at the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid
in respect of such Default Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest
as in this Clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Securities
of such series at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities
of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest
on the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which such Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this Clause, such
manner of payment shall be deemed practicable by the Trustee.
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Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of (and
premium, if any) and (subject to Section 307) interest on such Security and for
all other purposes whatsoever, whether or not such Security is overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be disposed of as directed by a Company
Order.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year of twelve 30-day months.
SECTION 311. Rights Under Finance Agreement.
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All Securities issued hereunder shall be entitled to the benefits
of the Finance Agreement and shall be deemed to be "Approved Debt" thereunder.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section
306 and (ii) Securities for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 1003) have been delivered to the
Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at
the expense, of the Company.
and the Company, in the case of (i), (ii) or (iii) above has
deposited or caused to be deposited with the Trustee as trust funds
in trust for the purpose an amount sufficient to pay and discharge
the entire indebtedness on such Securities not
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theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest to the date of such
deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case
may be;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 607, the
obligations of the Trustee to any Authenticating Agent under Section 614 and,
if money shall have been deposited with the Trustee pursuant to subclause (B)
of clause (1) of this Section, the obligations of the Trustee under Section 403
and the last paragraph of Section 1003 shall survive.
SECTION 402. Defeasance of Securities of any Series.
If this Section 402 is specified, as contemplated by Section 301,
to be applicable to the Securities of any series, then notwithstanding Section
401, the Company shall be deemed to have paid and discharged the entire
indebtedness on all the Outstanding Securities of any series on the 91st day
after the date of the deposit referred to in subparagraph (d) hereof, and the
provisions of this Indenture, as it relates to such Outstanding Securities,
shall no longer be in effect (and the Trustee, at the expense of the Company,
shall at Company Request, execute proper instruments acknowledging the same),
except as to:
(a) the rights of Holders of Securities to receive, from the trust
funds described in subparagraph (d) hereof, (i) payment of the principal
of (and premium, if any) and each instalment of principal of (and
premium, if any) or interest on the Outstanding Securities of that series
on the Stated Maturity of such principal or instalment of principal or
interest and (ii) the benefit of any mandatory sinking fund payments or
analogous payments applicable to Securities
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of such series on the day on which such payments are due and payable in
accordance with the terms of the Indenture and such Securities;
(b) the Company's obligations with respect to such Securities
under Sections 305, 306, 1002 and 1003; and
(c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder;
provided that the following conditions have been satisfied:
(d) with reference to this provision the Company has deposited or
caused to be irrevocably deposited with the Trustee (or another trustee
satisfying the requirements of Section 609) as trust funds in the trust,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of the Securities of that series, (i) money in an
amount, or (ii) U.S. Government Obligations which through the payment of
interest and principal in respect thereof in accordance with their terms
will provide not later than one day before the due date of any payment
referred to in clause (A) or (B) of this subparagraph (d) money in an
amount, or (iii) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in
a written certification thereof delivered to the Trustee, to pay and
discharge (A) the principal of (and premium, if any) and each instalment
of principal (and premium, if any) and interest on the Outstanding
Securities of that series on the Stated Maturity of such principal or
instalment of principal or interest and (B) any mandatory sinking fund
payments or analogous payments applicable to Securities of such series on
the day of which such payments are due and payable in accordance with the
terms of this Indenture and of such Securities;
(e) such deposit shall not cause the Trustee with respect to the
Securities of that series to have a conflicting interest as defined in
Section 608 and for purposes of the Trust Indenture Act with respect to
the Securities of any series;
(f) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
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(g) such provision would not cause any Outstanding Security of
such series then listed on any nationally recognized securities exchange
to be then delisted as a result thereof;
(h) no Event of Default or event which with notice or lapse of
time would become an Event of Default with respect to Securities of the
series shall have occurred and be continuing on the date of such deposit
or during the period ending on the 91st day after such date;
(i) the Company has delivered to the Trustee an Officers'
Certificate or an Opinion of Counsel to the effect that the Company has
received from, or there has been published by, the Internal Revenue
Service a ruling to the effect that Holders of the Securities of such
series will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposits, defeasance and discharge and will
be subject to Federal income tax on the same amount and in the same
manner and at the same times, as would have been the case if such
deposit, defeasance and discharge had not occurred; and
(j) such provision would not result in the trust arising from such
deposit constituting an investment company within the meaning of the
Investment Company Act of 1940, as amended from time to time; and
(k) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this
provision have been complied with.
SECTION 403. Application of Trust Funds; Indemnification.
(a) Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401, all
money and U.S. Government Obligations deposited with the Trustee pursuant
to Section 402 or Section 1008 and all money received by the Trustee in
respect of U.S. Government Obligations deposited with the Trustee
pursuant to Section 402 or Section 1008 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and
this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the
Trustee
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may determine, to the Persons entitled thereto of the principal (and
premium, if any) and interest for whose payment such money has been
deposited with or received by the Trustee or to make mandatory sinking
fund payments or analogous payments as contemplated by Section 402 or
Section 1008, as the case may be.
(b) The Company shall pay and shall indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against U.S.
Government Obligations deposited pursuant to Section 402 or Section 1008
or the interest and principal received in respect of such obligations
other than any payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or U.S. Government Obligations held
by it as provided in Section 402 or 1008 which, in the opinion of a
nationally recognized firm of independent public accountants expressed in
a written certification thereof delivered to the Trustee, are then in
excess of the amount which then would have been required to be deposited
for the purpose for which such money or U.S. Government Obligations were
deposited or received.
SECTION 404. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 402 or 1008 with respect to any Securities by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the obligations
under this Indenture and such Securities from which the Company has been
discharged or released pursuant to Section 402 or 1008 shall be revived and
reinstated as though no deposit had occurred pursuant to this Article with
respect to such Securities, until such time as the Trustee or Paying Agent is
permitted to apply all money held in trust pursuant to Section 403 with respect
to such Securities in accordance with this Article; provided, however, that if
the Company makes any payment of principal of or any premium or interest on any
such Security following such reinstatement of its obligations, the Company
shall be subrogated to the rights (if any) of the Holders of such Securities to
receive such payment from the money so held in trust.
ARTICLE FIVE
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REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities
of any series, means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest upon any
Security of that series when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium,
if any on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment,
when and as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant
or warranty of the Company in this Indenture (other than a covenant
or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit of
a series of Securities other than that series), and continuance of
such default or breach for a period of 90 days after there has been
given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustees by the Holders of at
least 25% in principal amount of the Outstanding Securities of each
series effected thereby a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or (B) a decree or order adjudging the Company a
bankrupt or insolvent, or
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approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the
Company under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or any substantial part of
its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief
or any such other decree or order unstayed and in effect for a
period of 60 consecutive days; or
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or insolvent, or
the consent by it to the entry of a decree or order for relief in
respect of the Company in an involuntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the
filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law,
or the consent by it to the filing of such petition or the
appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of
the Company or of any substantial part of its property, or the
making by it of any assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by
the Company in furtherance of any such action; or
(7) any events of default provided with respect to
Securities of that Series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default described in clause (1), (2), (3), (4) (if
the Event of Default under clause (4) above is with respect to less than all
series of the Securities Outstanding) or (7) of Section 501 with respect to
Securities of any series at the time Outstanding occurs
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and is continuing, then in every such case the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Securities of such series
(each such series voting as a separate class in the case of an Event of Default
under clause (1), (2), (3) or (7) of Section 501, and all such series voting as
one class in the case of such an Event of Default under clause (4) of Section
501) may declare the principal amount (or, if the Securities of any such series
are Original Issue Discount Securities, such portion of the principal amount as
may be specified in the terms of that series) of all of the Securities of such
series to be due and payable immediately, by a notice in writing to the Company
(and to the Trustee if given by Holders), and upon any such declaration such
principal amount (or specified amount) shall become immediately due and
payable. If any Event of Default described in clause (4) of Section 501 with
respect to all series of Securities then Outstanding, or any Event of Default
described in clause (5) or (6) of Section 501 occurs and is continuing, then in
every such case the Trustee or the Holders of not less than 25% in aggregate
principal amount of all the Outstanding Securities (voting as one class) may
declare the principal amount (or, if the Securities of any such series are
Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of that series) of all the Securities then
Outstanding to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration
such principal amount (or specified amount) shall become immediately due and
payable.
At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay
(A) the overdue interest on all Securities of the
series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise
than by such declaration of acceleration and interest
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thereon at the rate or rates prescribed therefor in such
Securities.
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustees, its agents and
counsel;
and
(2) all Events of Default with respect to Securities of
that series other than the non-payment of the principal of
Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided
in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities, for principal (and premium, if any) and interest and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the
rate or rates prescribed therefor in such Securities and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of
collection, including the
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reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust may
institute a judicial proceeding for the collection of the sums so due and
unpaid may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein or therein, or to enforce any other proper
remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor upon
the Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid
in respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding, and
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(ii) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under 607.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holders hereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal (or
premium, if any) or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607; and
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SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities
in respect of which or for the benefit of which such money has been
collected ratably without preference or priority of any kind
according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest, respectively.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to
be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of all Outstanding Securities of
that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to
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enforce any right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all of such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder
of any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to be extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of Default
which shall have occurred
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and shall be continuing shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right
and remedy given by this Article or by law to the Trustee or to the Holders may
be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule
of law or with this Indenture.
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction, and
(3) the Trustee shall have the right to decline any
direction with respect to which a Responsible Officer reasonably
determines such direction will cause the Trustee to incur any
liability for which it shall not have been adequately indemnified
pursuant to Section 507.
SECTION 513. Waiver of Past Defaults.
The Holders of (i) not less than a majority in principal amount of
the Outstanding Securities of any series (each such series voting as a separate
class) may on behalf of the Holders of all Securities of such series waive any
past default or Event of Default described in clause (4) of Section 501 which
relates to less than all series Outstanding Securities or described in clause
(7) of Section 501 with respect to such series and its consequences, or (ii)
not less than a majority in principal amount of the Outstanding Securities
(voting as one class) may on behalf of the Holders of all the Outstanding
Securities waive any past default or Event of Default described in said clause
(4) (which relates to all series of Outstanding Securities) or any other past
default or Event of Default (other than a default or Event of Default referred
to in clause (i) of this Section 513), except a default
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(1) in the payment of the principal of (or premium, if any)
or interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such series
affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, have due regard to
the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the Outstanding Securities of any series or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Security on or after the
Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
SECTION 515. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension of law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so)
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hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and
only such duties as specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part the
Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case of an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill
in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own wilful misconduct, except that
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
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(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Trustee was negligent in ascertaining the
pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any series,
determined as provided in Section 512, relating to the time, method
and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture with respect to the Securities of
such series; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to
the provisions of this Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series the Trustee shall transmit by mail to
all Holders of Securities of such series, as their names and addressees appear
in the Security Register, notice of such default hereunder known to the
Trustee, unless such default shall have been cured or waived; provided,
--------
however, that, except in the case of a default in the payment of the
- -------
principal of (or premium, if any) or interest on any Security of such series or
in the payment of any sinking fund instalment with respect to Securities of
such series, the Trustee shall be protected in withholding such notice if and
so long as the board of directors, the executive committee or a trust committee
of directors or Responsible Officers of the Trustee in good faith determine
that the withholding of such notice is in
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the interest of the Holders of Securities of such series; and provided,
--------
further, that in the case of any default of the character specified in
- -------
Section 501(4) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof.
For the purpose of this Section, the term "default", means any event which is,
or after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and
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liabilities which might be incurred by it in compliance with such request
or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine
to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by
agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(h) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Indenture.
SECTION 604. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. The
Trustee or any Authenticating Agent shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 608 and 613, may otherwise deal with the Company with the
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same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expenses, disbursements or
advances as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence
or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder.
SECTION 608. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting
interest, as defined in this Section, with respect to the Securities of
any series, it shall, within 90 days after ascertaining that it has such
conflicting interest, either eliminate such conflicting
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interest or resign with respect to the Securities of that series in the
manner and with the effect hereinafter specified in this Article.
(b) In the event that the Trustee shall fail to comply with
the provisions of Subsection (a) of this Section with respect to the
Securities of any series, the Trustee shall, within 10 days after the
expiration of such 90-day period, transmit by mail to all Holders of
Securities of that series, as their names and addresses appear in the
Security Register, notice of such failure.
(c) For the purposes of this Section, the Trustee shall be
deemed to have a conflicting interest with respect to the Securities of
any series if
(1) the Trustee is trustee under this Indenture with respect
to the Outstanding Securities of any series other than that series
or is trustee under another indenture under which any other
securities, or certificates of interest or participation in any
other securities, of the Company are outstanding, unless such other
indenture is a collateral trust indenture under which the only
collateral consists of Securities issued under this Indenture,
provided that there shall be excluded from the operation of
--------
this paragraph this Indenture with respect to the Securities of any
series other than that series or any indenture or indentures under
which other securities, or certificates of interest or
participation in other securities, of the Company are outstanding,
if
(i) this Indenture and such other indenture or
indentures are wholly unsecured and such other indenture or
indentures are hereafter qualified under the Trust Indenture Act,
unless the Commission shall have found and declared by order
pursuant to Section 305(b) or Section 307(c) of the Trust Indenture
Act that differences exist between the provisions of this Indenture
with respect to Securities of that series and one or more other
series or the provisions of such other indenture or indentures
which are so likely to involve a material conflict of interest as
to make it necessary in the public interest or for the protection
of investors to disqualify the Trustee from acting as such under
this Indenture with respect to the Securities of that series and
such
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other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of
proving, on application to the Commission and after opportunity for
hearing thereon, that trusteeship under this Indenture with respect
to the Securities of that series and such other series or such
other indenture or indentures is not so likely to involve a
material conflict of interest as to make it necessary in the public
interest or for the protection of investors to disqualify the
Trustee from acting as such under this Indenture with respect to
the Securities of that series and such other series or under such
other indenture or indentures;
(2) the Trustee or any of its directors or executive
officers is an obligor upon the Securities or an underwriter for the
Company;
(3) the Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under direct or indirect
common control with the Company or an underwriter for the Company;
(4) the Trustee or any of its directors or executive
officers is a director, officer, partner, employee, appointee or
representative of the Company, or of an underwriter (other than the
Trustee itself) for the Company who is currently engaged in the business
of underwriting, except that (i) one individual may be a director or an
executive officer, or both, of the Trustee and a director or an executive
officer, or both, of the Company but may not be at the same time an
executive officer of both the Trustee and the Company; (ii) if and so
long as the number of directors of the Trustee in office is more than
nine, one additional individual may be a director or an executive
officer, or both, of the Trustee and a director of the Company; and (iii)
the Trustee may be designated by the Company or by any underwriter for
the Company to act in the capacity of transfer agent, registrar,
custodian, paying agent, fiscal agent, escrow agent or depositary, or in
any other similar capacity, or, subject to the provisions of paragraph
(1) of this Subsection, to act as trustee, whether under an indenture or
otherwise;
(5) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Company
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or by any director, partner or executive officer thereof, or 20% or more
of such voting securities is beneficially owned, collectively, by any two
or more of such persons; or 10% or more of the voting securities of the
Trustee is beneficially owned either by an underwriter for the Company or
by any director, partner or executive officer thereof, or is beneficially
owned, collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as hereinafter
in this Subsection defined), (i) 5% or more of the voting securities, or
10% or more of any other class of security, of the Company not including
the Securities issued under this Indenture and securities issued under
any other indenture under which the Trustee is also trustee, or (ii) 10%
or more of any class of security of an underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as hereinafter
in this Subsection defined), 5% or more of the voting securities of any
person who, to the knowledge of the Trustee, owns 10% or more of the
voting securities of, or controls directly or indirectly or is under
direct or indirect common control with, the Company;
(8) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as hereinafter
in this Subsection defined), 10% or more of any class of security of any
person who, to the knowledge of the Trustee, owns 50% or more of the
voting securities of the Company; or
(9) the Trustee owns, on May 15 in any calendar year, in
the capacity of executor, administrator, testamentary or inter vivos
trustee, guardian, committee or conservator, or in any other similar
capacity, an aggregate of 25% or more of the voting securities, or of any
class of security, of any person, the beneficial ownership of a specified
percentage of which would have constituted a conflicting interest under
paragraph (6), (7) or (8) of this Subsection. As to any such securities
of which the Trustee acquired ownership through becoming executor,
administrator or testamentary trustee of an estate which included them,
the provisions of the preceding sentence shall not apply, for a period of
two years from the date of such acquisition, to the extent
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that such securities included in such estate do not exceed 25% of such
voting securities or 25% of any such class of security. Promptly after
May 15 in each calendar year, the Trustee shall make a check of its
holdings of such securities in any of the above-mentioned capacities as
of such May 15. If the Company fails to make payment in full of the
principal of (or premium, if any) or interest on any of the Securities
when and as the same becomes due and payable, and such failure continues
for 30 days thereafter, the Trustee shall make a prompt check of its
holdings of such securities in any of the above-mentioned capacities as
of the date of the expiration of such 30-day period, and after such date,
notwithstanding the foregoing provisions of this paragraph, all such
securities so held by the Trustee, with sole or joint control over such
securities vested in it, shall, but only so long as such failure shall
continue, be considered as though beneficially owned by the Trustee for
the purposes of paragraphs (6), (7) and (8) of this Subsection.
The specification of percentages in paragraphs (5) to (9),
inclusive, of this Subsection shall not be construed as indicating that the
ownership of such percentages of the securities of a person is or is not
necessary or sufficient to constitute direct or indirect control for the
purposes of paragraph (3) or (7) of this Subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this
Subsection only, (i) the terms "security" and "securities" shall include only
such securities as are generally known as corporate securities, but shall not
include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation in
any such note or evidence of indebtedness; (ii) an obligation shall be deemed
to be "in default" when a default in payment of principal shall have continued
for 30 days or more and shall not have been cured; and (iii) the Trustee shall
not be deemed to be the owner or holder of (A) any security which it holds as
collateral security, as trustee or otherwise, for an obligation which is not in
default as defined in clause (ii) above, or (B) any security which it holds as
collateral security under this Indenture, irrespective of any default
hereunder, or (C) any security which it holds as agent for collection, or as
custodian, escrow agent or depositary, or in any similar representative
capacity.
(d) For the purposes of this Section:
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(1) The term "underwriter", when used with reference to the
Company, means every person who, within three years prior to the
time as of which the determination is made, has purchased from the
Company with a view to, or has offered or sold for the Company in
connection with, the distribution of any security of the Company
outstanding at such time, or has participated or has had a direct
or indirect participation in any such undertaking, or has
participated or has had a participation in the direct or indirect
underwriting of any such undertaking, but such term shall not
include a person whose interest was limited to a commission from an
underwriter or dealer not in excess of the usual and customary
distributors' or sellers' commission.
(2) The term "director" means any director of a corporation
or any individual performing similar functions with respect to any
organization, whether incorporated or unincorporated.
(3) The term "person" means an individual, a corporation, a
partnership, an association, a joint-stock company, a trust, an
unincorporated organization or a government or political
subdivision thereof. As used in this paragraph, the term "trust"
shall include only a trust where the interest or interests of the
beneficiary or beneficiaries are evidence by a security.
(4) The term "voting security" means any security presently
entitling the owner or holder thereof to vote in the direction or
management of the affairs of a person, or any security issued under
or pursuant to any trust, agreement or arrangement whereby a
trustee or trustees or agent or agents for the owner or holder of
such security are presently entitled to vote in the direction or
management of the affairs of a person.
(5) The term "Company" means any obligor upon the Securities.
(6) The term "executive officer" means the president, every
vice president, every trust officer, the cashier, the secretary and
the treasurer of a corporation, and any individual customarily
performing similar functions with respect to any organization
whether incorporated
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or unincorporated, but shall not include the chairman of the board
of directors.
(e) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the following
provisions:
(1) A specified percentage of the voting securities of the
Trustee, the Company or any other person referred to in this
Section (each of whom is referred to as a "person" in this
paragraph) means such amount of the outstanding voting securities
of such person as entitles the holder or holders thereof to cast
such specified percentage of the aggregate votes which the holders
of all the outstanding voting securities of such person are
entitled to cast in the direction or management of the affairs of
such person.
(2) A specified percentage of a class of securities of a
person means such percentage of the aggregate amount of securities
of the class outstanding.
(3) The term "amount", when used in regard to securities,
means the principal amount if relating to evidences of
indebtedness, the number of shares if relating to capital shares
and the number of units if relating to any other kind of security.
(4) The term "outstanding" means issued and not held by or
for the account of the issuer. The following securities shall not
be deemed outstanding within the meaning of this definition:
(i) securities of an issuer held in a sinking fund
relating to securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund
relating to another class of securities of the issuer, if the
obligation evidence by such other class of securities is not
in default as to principal or interest or otherwise;
(iii) securities pledged by the issuer thereof as
security for an obligation of the issuer not in default as to
principal or interest or otherwise; and
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(iv) securities held in escrow if placed in escrow by
the issuer thereof;
provided, however, that any voting securities of an issuer shall be
deemed outstanding if any person other than the issuer is entitled to
exercise the voting rights thereof.
(5) A security shall be deemed to be of the same class as another
security if both securities confer upon the holder or holders thereof
substantially the same rights and privileges; provided, however, that, in
the case of secured evidences of indebtedness, all of which are issued
under a single indenture, differences in the interest rates or maturity
dates of various series thereof shall not be deemed sufficient to
constitute such series different classes and provided, further, that, in
the case of unsecured evidences of indebtedness, differences in the
interest rates or maturity dates thereof shall not be deemed sufficient
to constitute them securities of different classes, whether or not they
are issued under a single indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000 subject to supervision or examination by Federal or
State authority and having its Corporate Trust Office in the Borough of
Manhattan, The City of New York. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
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SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required
by Section 611 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series, delivered
to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608(a)
after written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Security for at least six months,
or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may
remove the Trustee with respect to the applicable series of Securities,
or (ii) subject to
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Section 514, any Holder who has been a bona fide Holder of a Security of
any series for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee with respect to such series of Securities
and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee
for any cause, with respect to the Securities of one or more series, the
Company, by a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of that or those
series (it being understood that any such successor Trustee may be
appointed with respect to the Securities of one or more or all of such
series and that at any time there shall be only one Trustee with respect
to the Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy,
a successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment in accordance with the applicable
requirements of Section 611, become the successor Trustee with respect to
the Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the
Company or the Holders and accepted appointment in the manner required by
Section 611, any Holder who has been a bona fide holder of a Security of
such series for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the Securities
of such series.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series
and each appointment of a successor Trustee with respect to the
Securities of any series by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders of Securities of such
series as their names and addresses appear in the Security Register.
Each notice
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shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to
the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its
charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall execute and deliver
an indenture supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to vest
in, each successor Trustee all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, (2) if
the retiring Trustee is not retiring with respect to all Securities,
shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in
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such supplemental indenture shall constitute such Trustees co-trustees of
the same trust and that each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and
delivery of such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein
and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates;
but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in paragraph (a) or (b) of this Section, as
the case may be.
(d) No such successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect
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as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
(a) Subject to Subsection (b) of this Section, if the
Trustee shall be or shall become a creditor, directly or indirectly,
secured or unsecured, of the Company within four months prior to a
default, as defined in Subsection (c) of this Section, or subsequent to
such a default, as defined in Subsection (c) of this Section, or
subsequent to such a default, then, unless and until such default shall
be cured, the Trustee shall set apart and hold in a special account for
the benefit of the Trustee individually, the Holders of the Securities
and the holders of other indenture securities, as defined in subsection
(c) of this Section:
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of
principal or interest, effected after the beginning of such four
month's period and valid as against the Company and its other
creditors, except any such reduction resulting from the receipt or
disposition of any property described in paragraph (2) of this
Subsection, or from the exercise of any right of set-off which the
Trustee could have exercised if a petition in bankruptcy had been
filed by or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any
claims as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the
beginning of such four months' period, or an amount equal to the
proceeds of any such property, if disposed of, subject,
-------
however, to the rights, if any, of the Company and its other
-------
creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on
account of any such claim by any Person (other than the Company)
who is liable thereon, and (ii) the proceeds of the bona fide
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sale of any such claim by the Trustee to a third Person, and (iii)
distributions made in cash, securities or other property in respect
of claims filed against the Company in bankruptcy or receivership
or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law;
(B) to realize, for its own account, upon any property held
by it as security for any such claim, if such property was so held
prior to the beginning of such four months' period;
(C) to realize, for its own account, but only to the extent
of the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such four months' period and such property was
received as security therefor simultaneously with the creation
thereof, and if the Trustee shall sustain the burden of proving
that at the time such property was so received the Trustee had no
reasonable cause to believe that a default, as defined in
Subsection (c) of this Section, would occur within four months; or
(D) to receive payment on any claim referred to in
paragraph (B) or (C), against the release of any property held as
security for such claim as provided in paragraph (B) or (C), as the
case may be, to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such four months' period for property held
as security at the time of such substitution shall, to the extent of the fair
value of the property released, have the same status as the property released,
and, to the extent that any claim referred to in any of such paragraphs is
created in renewal of or in substitution for or for the purpose of repaying or
refunding any pre-existing claim of the Trustee as such creditor, such claim
shall have the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned
among the Trustee, the Holders and the holders of other indenture securities in
such manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments
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from such special account and payments of dividends on claims filed against the
Company in bankruptcy or receivership or in proceedings for reorganization
pursuant to the Federal Bankruptcy Act or applicable State law, the same
percentage of their respective claims, figured before crediting to the claim of
the Trustee anything on account of the receipt by it from the Company of the
funds and property in such special account and before crediting to the
respective claims of the Trustee and the Holders and the holders of other
indenture securities dividends on claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to the
Federal Bankruptcy Act or applicable State law, but after crediting thereon
receipts on account of the indebtedness representing by their respective claims
from all sources other than from such dividends and from the funds and property
so held in such special account. As used in this paragraph, with respect to
any claim, the term "dividends" shall include any distribution with respect to
such claim, in bankruptcy or receivership or proceedings for reorganization
pursuant to the Federal Bankruptcy Act or applicable State law, whether such
distribution is made in cash, securities or other property, but shall not
include any such distribution with respect to the secured portion, if any, of
such claim. The court in which such bankruptcy, receivership or proceedings
for reorganization is pending shall have jurisdiction (i) to apportion among
the Trustee, the Holders and the holders of other indenture securities, in
accordance with the provisions of this paragraph, the funds and property held
in such special account and proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of this paragraph
due consideration in determining the fairness of the distributions to be made
to the Trustee and the Holders and the holders of other indenture securities
with respect to their respective claims, in which event it shall not be
necessary to liquidate or to appraise the value of any securities or other
property held in such special account or as security for any such claim, or to
make a specific allocation of such distributions as between the secured and
unsecured portions of such claims, or otherwise to apply the provisions of this
paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning
of such four months' period shall be subject to the provisions of this
Subsection as though such resignation or removal had not occurred. If any
Trustee has resigned or been removed prior to the beginning of such four
months' period, it shall be subject to the provisions of this Subsection if and
only if the following conditions exist:
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(i) the receipt of property or reduction of claim, which
would have given rise to the obligation to account, if such Trustee
had continued as Trustee, occurred after the beginning of such four
months' period; and
(ii) such receipt of property or reduction of claim occurred
within four months after such resignation or removal.
(b) There shall be excluded from the operation of
Subsection (a) of this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity of
one year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy
court of competent jurisdiction or by this Indenture, for the
purpose of preserving any property which shall at any time be
subject to the lien of this Indenture or of discharging tax liens
or other prior liens or encumbrances thereon, if notice of such
advances and of the circumstances surrounding the making thereof is
given to the Holders at the time and in the manner provided in this
Indenture;
(3) disbursements made in the ordinary course of business
in the capacity of trustee under an indenture, transfer agent,
registrar, custodian, paying agent, fiscal agent or depositary, or
other similar capacity;
(4) an indebtedness created as a result of services
rendered or premises rented; or an indebtedness created as a result
of goods or securities sold in a cash transaction, as defined in
Subsection (c) of this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; and
(6) the acquisition, ownership, acceptance or negotiation
of any drafts, bills of exchange,
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acceptances or obligations which fall within the classification of
self-liquidating paper, as defined in Subsection (c) of this
Section.
(c) For the purposes of this Section only:
(1) the term "default" means any failure to make payment in
full of the principal of or interest on any of the Securities or
upon the other indenture securities when and as such principal or
interest becomes due and payable;
(2) the term "other indenture securities" means securities
upon which the Company is an obligor outstanding under any other
indenture (i) under which the Trustee is also trustee, (ii) which
contains provisions substantially similar to the provisions of this
Section, and (iii) under which a default exists at the time of the
apportionment of the funds and property held in such special
account;
(3) the term "cash transaction" means any transaction in
which full payment for goods or securities sold is made within
seven days after delivery of the goods or securities in currency or
in checks or other orders drawn upon banks or bankers and payable
upon demand;
(4) the term "self-liquidating paper" means any draft, bill
of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company for the purpose of financing
the purchase, processing, manufacturing, shipment, storage or sale
of goods, wares or merchandise and which is secured by documents
evidencing title to, possession of, or a lien upon, the goods,
wares or merchandise or the receivables or proceeds arising from
the sale of the goods, wares or merchandise previously constituting
the security, provided the security is received by the Trustee
simultaneously with the creation of the creditor relationship with
the Company arising from the making, drawing, negotiating or
incurring of the draft, bill of exchange, acceptance of obligation;
(5) the term "Company" means any obligor upon the
Securities; and
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(6) the term "Federal Bankruptcy Act" means the Bankruptcy
Act or Title 11 of the United States Code.
SECTION 614. Appointment of Authenticating Agent.
At any time the Trustee may appoint an Authenticating Agent or
Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon original issue, exchange, registration of transfer or
partial redemption thereof or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by Federal or State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any
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paper or any further act on the part of the Trustee or the Authenticating
Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
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This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
CHEMICAL BANK,
As Trustee,
By........................................
as Authenticating Agent
By........................................
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders as of
the date of such list, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than 15
days prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in
- ---------
its capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to
Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 701 and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
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(b) If three or more Holders of Securities of any series (herein
referred to as "applicants") apply in writing to the Trustee, and furnish to
the Trustee reasonable proof that each such applicant has owned a Security of
such series for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders of such series or with Holders of all other
series of Securities with respect to their rights under this Indenture or under
such Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee
shall, within five business days after the receipt of such application, at its
election, either
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with Section 702(a),
or
(ii) inform such applicants as to the approximate number of
Holders of such series of Securities or Holders of all other series of
Securities whose names and addresses appear in the information preserved
at the time by the Trustee in accordance with Section 702(a), and as to
the approximate cost of mailing to the Holders of such series of
Securities or the Holders of all series of Securities the form of proxy
or other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of such series of Securities or of all series
of Securities or of all series of Securities whose name and address appear in
the information preserved at the time by the Trustee in accordance with Section
702(a) a copy of the form of proxy or other communication which is specified in
such request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interest of the relevant Holders or would be in violation of applicable law.
Such written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified in
the written statement so filed, shall enter an order
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refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies
of such material to all such Holders with reasonable promptness after the entry
of such order and the renewal of such tender; otherwise the Trustee shall be
relieved of any obligation or duty to such applicants respecting their
application.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 702(b), regardless of the source from which
such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 702(b).
SECTION 703. Reports by Trustee.
(a) Within 60 days after March 1 of each year commencing with the
year 1996, so long as any of the Securities are outstanding, the Trustee shall
transmit by mail to all Holders, as their names and addresses appear in the
Security Register as of a date not more than fifteen days prior to the mailing
thereof, to such Holders of Securities as have, within the two years preceding
such transmission, filed their names and addresses with the Trustee for that
purpose and Holders of securities whose names and addresses have been furnished
to or received by the trustee pursuant to Section 702(a) a brief report dated
as of such March 1 with respect to:
(1) its eligibility under Section 609 and its
qualifications under Section 608, or in lieu thereof, if to the
best of its knowledge it has continued to be eligible and qualified
under said Sections, a written statement to such effect;
(2) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the
making thereof) made by the Trustee (as such) which remain unpaid
on the date of such report, and for the reimbursement of which it
claims or may claim a lien or charge, prior to that of the
Securities, on any property or funds held or collected by it as
Trustee,
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except that the Trustee shall not be required (but may elect) to
report such advances if such advances so remaining unpaid aggregate
not more that 1/2 of 1% of the principal amount of the Securities
Outstanding of such series on the date of such report;
(3) the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or by any other obligor on
the Securities) the Trustee in its individual capacity, on the date
of such report, with a brief description of any property held as
collateral security therefor, except an indebtedness based upon a
creditor relationship arising in any manner described in Section
613(b)(2),(3),(4) or (6);
(4) the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(5) any additional issue of Securities which the Trustee
has not previously reported; and
(6) any action taken by the Trustee in the performance of
its duties hereunder which it has not previously reported and which
in its opinion materially affects the Securities, except action in
respect of a default, notice of which has been or is to be withheld
by the Trustee in accordance with Section 602.
(b) The Trustee shall transmit by mail to all Holders, as their
names and addresses appear in the Security Register as of a date not more than
fifteen days prior to the mailing thereof, and to such Holders of Securities as
have, within the two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose a brief report with respect to the
character and amount of any advances (and if the Trustee elects so to state,
the circumstances surrounding the making thereof) made by the Trustee (as such)
since the date of the last report transmitted pursuant to Subsection (a) of
this Section (or if no such report has yet been so transmitted, since the date
of execution of this instrument) for the reimbursement of which it claims or
may claim a lien or charge, prior to that of the Securities, on property or
funds held or collected by it as Trustee and which it has not previously
reported pursuant to this Subsection, except that the Trustee shall not be
required (but may elect) to report such advances if such advances remaining
unpaid at
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any time aggregate 10% or less of the principal amount of the Securities
Outstanding of such series at such time, such report to be transmitted within
90 days after such time.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
SECTION 704. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required
to file information, documents or reports pursuant to either of
said Sections, then it shall file with the Trustee and the
Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required
pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such
rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and
covenants of this Indenture as may be required from time to time by
such rules and regulations; and
(3) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, within 30 days after the
filing thereof with the Trustee, to such Holders of Securities as
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have, within the two years preceding such transmission, filed their
names and addresses with the Trustee for that purpose and Holders
of securities whose names and addresses have been furnished to or
received by the Trustee pursuant to Section 702(a) such summaries
of any information, documents and reports required to be filed by
the Company pursuant to paragraphs (1) and (2) of this Section as
may be required by rules and regulations prescribed from time to
time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, and the Company shall not permit
any Person to consolidate with or merge into the Company or convey, transfer or
lease its properties and assets substantially as an entirety to the Company,
unless:
(1) in case the Company shall consolidate with or merge
into another corporation or convey, transfer or lease its properties
and assets substantially as an entirety to any Person, the
corporation formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance or transfer, or
which leases, the properties and assets of the Company substantially
as an entirety shall be a corporation organized and existing under
the laws of the United States of America, any State thereof or the
District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the
principal of (and premium, if any) and interest on all the
Securities and the performance of every covenant of this Indenture
on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transactions
and treating any indebtedness which
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becomes an obligation of the Company or a Subsidiary as a result of
such transaction as having been incurred by the Company or such
Subsidiary at the time of such transaction, no Event of Default,
and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing;
(3) if, as a result of any such consolidation or merger or
such conveyance, transfer or lease, properties or assets of the
Company would become subject to a mortgage, pledge, lien, security
interest or other encumbrance which would not be permitted by this
Indenture, the Company or such successor corporation or Person, as
the case may be, shall take such steps as shall be necessary
effectively to secure the Securities equally and ratably with (or
prior to) all indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article
and that all conditions precedent herein provided for relating to
such transaction have been complied with.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the Company
into any other corporation or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 801, the successor corporation formed by such consolidation or
into which the Company is merged or to which such conveyance, transfer or lease
is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor corporation shall be relieved of
all obligations and covenants under this Indenture and the Securities.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by
a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to
the Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit
of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being
included solely for the benefit of such series) or to surrender any
right or power herein conferred upon the Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Securities in bearer form, registrable
or not registrable as to principal, and with or without interest
coupons; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall
become effective only when there is no Security Outstanding of any
series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision; or
(6) to secure the Securities pursuant to the requirements
of Sections 801(3) or 1007 or otherwise; or
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(7) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for
and facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 611(b);
or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture; provided such action shall
not adversely affect the interests of the Holders of Securities of
any series in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture voting as one class, by Act of said Holders delivered to
the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under the Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected
thereby
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security,or reduce
the principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or reduce the amount
of the principal of an Original Issue Discount Security that would
be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502, or change any Place of
Payment where, or the coin or currency in which, any Security or
any premium
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or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series,the consent of whose Holders
is required for any such supplemental indenture, or the consent of
whose Holders is required for any waiver (of compliance with
certain provisions of this Indenture or certain defaults hereunder
and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section
513 or Section 1010, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, however, that this
clause shall not be deemed to require the consent of any Holder
with respect to changes in the references to "the Trustee" and
concomitant changes in this Section and Section 1010, or the
deletion of this proviso, in accordance with the requirements of
Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Articles or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive,
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and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Securities of any series so modified as to conform, in
the opinion of the Trustee and the Company, to any such supplemental indenture
may be prepared and executed by the Company and authenticated and delivered by
the Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium an Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
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SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series
of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designation; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of (and
premium, if any) or interest on any Securities of that Series, deposit with a
Paying Agent a sum sufficient to pay the principal (and
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premium, if any) or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on Securities of
that series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(2) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities of that series) in the
making of any payment of principal (and premium, if any) or
interest on the Securities of that series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee (except pursuant to Section
402) or any Paying Agent, or then held by the Company, in trust for the payment
of the principal of (and premium, if any) or interest on any Security of any
series and remaining unclaimed for two years after such principal (and premium,
if any) or interest has become due and payable shall be paid to the Company on
Company Request, or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to
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the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however, that the Trustee
or such Paying Agent, before being required to make any such repayment, may at
the expense of the Company cause to be published once, in a newspaper published
in the English language, customarily published on each Business Day and of
general circulation in the Borough of Manhattan, The City of New York, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its
corporate existence, rights (charter and statutory) and franchises; provided,
however, that the Company shall not be required to preserve any such right or
franchise if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company
and that the loss thereof is not disadvantageous in any material respect to the
Holders.
SECTION 1005. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all taxes, assessments
and governmental charges levied or imposed upon the Company or any Subsidiary
or upon the income, profits or property of the Company or any Subsidiary, and
(2) all lawful claims for labor, materials and supplies which, if unpaid, might
by law become a lien upon the property of the Company or any Subsidiary;
provided, however, that the Company shall not be required to pay or discharge
or cause to be paid or discharged any such tax, assessment or charge whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings.
SECTION 1006. Maintenance of Finance Agreement.
The Company covenants that:
(1) it will observe and perform in all material respects all
covenants or agreements of
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the Company contained in the Finance Agreement; and
(2) with the consent of Holders of not less than a majority
in principal amount of such Outstanding Securities of each series
affected by such termination, amendment or waiver, by act of said
Holders delivered to the Company and the Trustee, the Trustee may
consent to the termination or amendment of, or waive compliance
with (either generally or in a particular instance, and either
retroactively or prospectively), any provision of the Finance
Agreement; provided, however, that the Finance Agreement
-------- -------
may be terminated or amended or compliance with any provision
thereof waived by consent of the Trustee alone if such termination,
amendment or waiver would not have a material adverse effect on the
Holders of Securities of any series then Outstanding or if at least
two nationally recognized statistical rating agencies that have
rated the Securities or any series then Outstanding confirm in
writing that their ratings for such Securities in effect prior to
such termination, amendment or waiver will not be downgraded as a
result of such termination, amendment or waiver.
SECTION 1007. Restriction on Creation of Secured Debt.
The Company will not at any time create, assume or guarantee any
Secured Debt and will not permit any Subsidiary at any time to create, assume
or guarantee any Secured Debt without, in any such case, making, or causing
such Subsidiary to make, effective provision (and the Company covenants that in
such case it will make or cause to be made effective provision) whereby the
Securities of any series then Outstanding and, if the Company shall so
determine, any other indebtedness of or guaranteed by the Company or such
relevant Subsidiary, subject to applicable priorities of payment, shall be
secured by such mortgage, pledge, lien, security interest or encumbrance
equally and ratably with any and all other obligations and indebtedness thereby
secured, so long as any such other obligations and indebtedness shall be so
secured; provided, however, that the foregoing covenants shall not be
applicable to the following:
(a)(i) Any mortgage, pledge, lien, security interest or
encumbrance on any fixed asset or other physical or real property
hereafter acquired (including acquisition through merger or
consolidation)
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or hereafter constructed or improved by the Company or any Subsidiary and
created, or for the creation of which a bona fide firm commitment in
writing was executed, prior to, contemporaneously with or within 360 days
after such acquisition or the completion of such construction or
improvement or the commencement of commercial operation or the placing in
service of such property by the Company or any Subsidiary, whichever is
later, to secure or provide for the payment of all or a part of the
purchase price or cost of construction or improvement of such property;
or (ii) the acquisition of property subject to any mortgage, pledge,
lien, security interest or encumbrance upon such property existing at the
time of acquisition thereof, whether or not assumed by the Company or any
Subsidiary; or (iii) any mortgage, pledge, lien, security interest or
encumbrance on property of a corporation existing at the time such
corporation is merged into or consolidated with the Company or any
Subsidiary or at the time of a sale, lease or other disposition of the
properties of a corporation or firm as an entirety or substantially as an
entirety to the Company or any Subsidiary; provided, however, that the
lien of any such mortgage, pledge, lien, security interest or encumbrance
permitted by clauses (ii) or (iii) of this subparagraph (a) shall not
extend to property owned by the Company or any Subsidiary prior to any
event referred to in such clauses or to other property thereafter
acquired by the Company or any Subsidiary, other than additions and
improvements to the property referred to in such clauses; or
(b) Mortgages, including mortgages, pledges, liens,
security interests or encumbrances, on property of the Company or any
subsidiary in favor of the United States of America or any State thereof,
or any department, agency or instrumentality or political subdivision of
the United States of America or any State thereof, or in favor of any
other country, or any department, agency or instrumentality or political
subdivision thereof, to secure partial, progress, advance or other
payments pursuant to any contract or statute or to secure any
indebtedness incurred for the purpose of financing all or any part of the
purchase price or the cost of construction or improvement of the property
subject to such mortgages; or
(c) Any extension, renewal or replacement (or successive
extensions, renewals replacements) in whole or in part of any mortgage,
pledge, lien, security interest or encumbrance referred to in the
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foregoing paragraphs (a) and (b); provided, however, that the principal
amount of Secured Debt secured thereby shall not exceed the principal
amount outstanding at the time of such extension, renewal or replacement,
and that such extension, renewal or replacement shall be limited to the
property which secured the mortgage so extended, renewed or replaced and
additions to such property; or
(d) Any mortgage, pledge, lien, security interest or
encumbrance securing indebtedness owing by the Company to one or more
Wholly-owned Subsidiaries; or
(e) Any lien, chattel mortgage, security agreement, and
other title retention agreement on tangible personal property, resulting
from the Company, any Subsidiary,or an owner-trustee representing either
of the foregoing acquiring or agreeing to acquire the same property for
substantially concurrent leasing or financing to third parties in
Leveraged Leases or Partnerships; or
(f) Any liens to secure non-recourse obligations in
connection with the Company's or a Subsidiary's engaging in Leveraged
Lease or single-investor lease transactions.
Notwithstanding the foregoing provisions of this Section 1007, the
Company may create, assume or guarantee Secured Debt which would otherwise be
subject to the foregoing restrictions in an aggregate amount which, together
with all other Secured Debt of the Company which would otherwise be subject to
the foregoing restrictions (not including Secured Debt permitted to be secured
under subparagraphs (a) through (d) above), does not at the time exceed 10% of
Consolidated Net Tangible Assets.
SECTION 1008. Defeasance of Certain Obligations.
If this Section 1008 is specified, as contemplated by Section 301,
to be applicable to Securities of any series, the Company may omit to comply
with any term, provision or condition set forth in Sections 1006 to 1007,
inclusive, with respect to the Securities of any series, and with any term,
provision or condition set forth in any negative or restrictive covenant of the
Company (other than those contained in this Indenture) applicable to the
Securities of such series (except if otherwise specified as contemplated by
Section 301), if
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(1) With reference to this Section 1008, the Company has
deposited or caused to be irrevocably deposited with the Trustee
(or another trustee satisfying the requirements of Section 609) as
trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities
of that Series, (i) money in an amount, or (ii) U.S. Government
Obligations which through the payment of interest and principal in
respect thereof in accordance with their terms will provide not
later than one day before the due date of any payment referred to
clause (A) or (B) of this subparagraph (1) money in an amount, or
(iii) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay and discharge (A) the principal of (and premium, if
any) and each instalment of principal (and premium, if any) and
interest on the Outstanding Securities of that series on the Stated
Maturity of such principal or instalment of principal or interest
and (B) any mandatory sinking fund payments or analogous payments
applicable to Securities of such series on the day on which such
payments are due and payable in accordance with the terms of the
Indenture and of such Securities;
(2) Such deposit shall not cause the Trustee with respect
to the Securities of that series to have a conflicting interest as
defined in Section 608 and for purposes of the Trust Indenture Act
with respect to the Securities of any series;
(3) Such deposit will not result in a breach or violation
of, or constitute a default under, this Indenture or any other
agreement or instrument to which the Company is a party or by which
it is bound;
(4) No Event of Default or event which with notice or lapse
of time would become an Event of Default with respect to Securities
of that series shall have occurred and be continuing on the date of
such deposit;
(5) The Company has delivered to the Trustee an Opinion of
Counsel to the effect that Holders of the Securities of such series
will not recognize income, gain or loss for Federal income
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tax purposes as a result of such deposit and defeasance of certain
obligations and will be subject to Federal income tax on the same
amount and in the same manner and at the same times, as would have
been the case if such deposit and defeasance had not occurred; and
(6) Such deposit would not cause any outstanding Security
of such series then listed on any nationally recognized securities
exchange to be delisted as a result thereof;
(7) Such deposit would not result in the trust arising from
such deposit constituting an investment company within the meaning
of the Investment Company Act of 1940, as amended from time to
time; and
(8) The Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the defeasance
contemplated by this Section have been complied with.
SECTION 1009. Certificate of Officers of the Company.
On or before the last day of March of each year beginning with the
year 1996, the Company will file with the Trustee an Officers' Certificate
stating that in the course of the performance of their duties as such officers
they would normally obtain knowledge of any action or failure to act on the
part of the Company in violation of any covenant, agreement, provision or
condition contained in this Indenture, or of any action or failure to act on
the part of Pitney Bowes in violation of any covenant, agreement, provision or
condition contained in the Finance Agreement, stating whether or not they have
obtained knowledge of any action or failure to act on the part of the Company
during the preceding calendar year, in violation of any covenant, agreement,
provision or condition contained in this Indenture, or of any action or failure
to act on the part of Pitney Bowes during the period since the date of the most
recent Officers' Certificate delivered pursuant to this Section 1009, or in the
case of the first such Officers' Certificate, since the date of this Indenture,
in violation of any covenant, agreement, provision or condition contained in
the Finance Agreement, as the case may be, and, if so, specifying each such
default of which the signers may have knowledge and the nature thereof.
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<PAGE>
SECTION 1010. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1004 to 1007, inclusive,
with respect to the Securities of any series if before the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provisions or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and
the duties of the Trustee in respect of any such term, provision or condition
shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall,
at least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date, of the tenor, if applicable, of the Securities to be
redeemed, and of the principal amount of Securities of such series to be
redeemed. In the case of any redemption of Securities prior to the expiration
of any restriction on such redemption provided in the terms of such Securities
or elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
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<PAGE>
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of a specified tenor are to be redeemed), the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series. If less than all of the
Securities of such series and of a specified tenor are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 45 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series and specified tenor not previously called for redemption in
accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date to each Holder of Securities to be redeemed, at this address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
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<PAGE>
(3) if less than all the Outstanding Securities of any
series are to be redeemed, the identification (and, in the case of
partial redemption, the principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and,
if applicable, that interest thereon will cease to accrue on and
after said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is
the case.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with accrued
interest to the Redemption Date; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more
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<PAGE>
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same
series and of like tenor, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered. If a
Security in permanent global form is so surrendered, the Company shall execute,
and the Trustee shall authenticate and deliver to the Depositary for such
Security in permanent global form, without service charge, a new Security in
permanent global form in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Security in permanent global form so
surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series except as otherwise specified
as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If
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<PAGE>
provided for by the terms of Securities of any series, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 1202.
Each sinking fund payment shall be applied to the redemption of Securities of
any series as provided for by the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities.
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
Series; provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for
any series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 stating that such Securities have not been previously
used as a credit against any sinking fund payment and will also deliver to the
Trustee any Securities to be so delivered. Not less than 30 days before each
such sinking fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
1103 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 1104. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 1105,1106 and 1107.
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This instrument may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunder
affixed and attested, all as of the day and year first above written.
PITNEY BOWES CREDIT CORPORATION
By
--------------------------------
By
--------------------------------
CHEMICAL BANK
By
--------------------------------
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EXHIBIT 4(b)
AMENDED AND RESTATED
FINANCE AGREEMENT
This AMENDED AND RESTATED FINANCE AGREEMENT is dated as of the 12th day of
June, 1995, and amends and restates in its entirety the Finance Agreement dated
as of July 5, 1978 between Pitney Bowes Inc. ("Pitney Bowes") and Pitney Bowes
Credit Corporation ("PBCC") (formerly, PB Leasing Corporation).
Pitney Bowes, as the owner and holder of all of the issued and outstanding
shares of voting stock of PBCC, desires to provide certain agreements as to the
fixed charge coverage of, and availability of funds to, PBCC in connection with
the incurrence, assumption or guaranty by PBCC from time to time of Approved
Debt (as hereinafter defined) and commercial paper.
In order to accomplish the foregoing, the parties hereto agree as follows:
1. Fixed Charge Coverage. As long as this Agreement is in effect, Pitney
---------------------
Bowes will, within 45 days after the last day of each fiscal quarter of PBCC,
make, or cause to be made, a determination of ratio of Income Available for
Fixed Charges for the immediately preceding one-year period. If, at any time
such determination is made, said ratio of Income Available for Fixed Charges to
Fixed Charges shall be less than 1.25 to 1, Pitney Bowes will, within 10 days
after the date of such determination, pay to PBCC a fee in an amount at least
sufficient to increase said ratio of Income Available for Fixed Charges to
Fixed Charges to 1.25 to 1.
<PAGE>
2. Maintenance of Liquidity. At all times while this Agreement is in
------------------------
effect, if PBCC is unable to make timely payment of any principal, interest or
premium in respect of any Approved Debt or commercial paper, Pitney Bowes shall,
at PBCC's request, provide (or cause to be provided) to PBCC on a timely basis,
funds (which, if provided by Pitney Bowes or any subsidiary of Pitney Bowes, may
be provided as an equity contribution, as a loan or otherwise, in each case, as
elected by Pitney Bowes) sufficient to make such payment.
3. Stock Ownership. At all times during the term of this Agreement, Pitney
---------------
Bowes shall own and hold, directly or indirectly, the legal title to and
beneficial interest in a majority of the outstanding shares of stock of PBCC
having the right to vote for the election of members of the Board of Directors
of PBCC, and shall not pledge, directly or indirectly, or in any way encumber or
otherwise dispose of any such shares of stock of PBCC or permit its subsidiaries
to do so.
4. Definitions. As used in this Agreement, the following terms have the
-----------
meanings indicated:
"Approved Debt" shall mean indebtedness for borrowed money incurred,
assumed or guaranteed by PBCC pursuant to (i) The Indenture, dated May 1, 1985,
as supplemented (the "Indenture"), between PBCC and Bankers Trust Company, as
Trustee, and (ii) other agreements (including future indentures for borrowed
money) which by their express terms make such indebtedness entitled to the
provisions of this Agreement.
<PAGE>
"Fixed Charges" of PBCC and its subsidiaries shall mean, at the time of any
determination thereof, the sum of (i) the aggregate amount of fixed rentals
payable during the immediately preceding one-year period by PBCC and its
subsidiaries with respect to all leases of real and personal property (other
than leases between PBCC and any subsidiary or between subsidiaries) and (ii)
the interest charges on the aggregate principal amount of consolidated
indebtedness of PBCC and its subsidiaries during such period.
"Income Available for Fixed Charges" shall mean, at the time of any
determination thereof, the consolidated net income of PBCC and its subsidiaries
determined in accordance with generally accepted accounting principles, except
that such determination shall be made before any deduction for Fixed Charges or
provisions for taxes in respect of income.
5. Amendment and Termination. This Agreement, or any term, covenant,
-------------------------
agreement or condition hereof, may be amended or terminated by the parties
hereto at any time in writing; provided that, so long as any series of Approved
--------
Debt therefore issued remains outstanding, no such amendment or termination
which has a material adverse affect on the rights of the holders of such series
of Approved Debt shall become effective with respect to such series of Approved
Debt unless (i) at least two nationally recognized statistical rating agencies
that have rated such series of Approved Debt prior to such amendment or
termination confirm in writing that their ratings for such series of Approved
Debt in effect immediately prior to such amendment or termination will not be
<PAGE>
downgraded as a result of such amendment or termination, or (ii) the holders of
the majority in principal amount of such series of Approved Debt shall have
consented thereto in writing.
6. Rights of Holders of Debt. All holders of Approved Debt and commercial
-------------------------
paper issued during the term of this Agreement shall be intended third-party
beneficiaries of this Agreement; provided that the third-party beneficiary
rights of any such holder shall be limited to (i) the right to demand that PBCC
enforce PBCC's rights under paragraphs 1 and 2 of this Agreement, and (ii) the
right to proceed against Pitney Bowes on behalf of PBCC to enforce PBCC's rights
under paragraphs 1 and 2 of this Agreement if PBCC fails or refuses to take
timely action to enforce PBCC's rights hereunder following demand for such
enforcement by any such holder. Notwithstanding the foregoing, holders of
Approved Debt issued pursuant to the terms of the Indenture shall only be
entitled to exercise such rights in accordance with the terms of the Indenture.
7. Not a Guaranty. Notwithstanding any other provision of this Agreement,
--------------
this Agreement, its provisions and any actions taken pursuant hereto by Pitney
Bowes shall not constitute or be deemed to constitute a direct or indirect
guaranty by Pitney Bowes or any Approved Debt or any other obligation or
liability of any kind or character whatsoever of PBCC, and no holder of any such
Approved Debt, obligation or liability shall have any right to proceed directly
against Pitney Bowes to obtain any amount due with respect to any such Approved
Debt,
<PAGE>
obligation or liability, including, without limitation, any principal thereof or
interest or premium thereon.
8. Successors or Assigns. This Agreement shall be binding upon and inure
---------------------
to the benefit of the parties hereto and their respective successors and
assigns.
9. Notices. Pitney Bowes and PBCC shall provide any nationally recognized
-------
statistical rating agency that has rated Approved Debt and commercial paper,
notice of the intention to amend or terminate this agreement which will be no
less than the greater of (i) 60 days or (ii) the number of days to maturity of
PBCC's latest maturing commercial paper.
10. Applicable Law. This Agreement shall be governed by and construed in
--------------
accordance with the laws of the State of New York.
PITNEY BOWES CREDIT CORPORATION PITNEY BOWES INC.
By: /s/ Matthew Kissner By: /s/ George B. Harvey
--------------------- -----------------------------
Title: President and CEO Title: Chairman, President & CEO
<PAGE>
EXHIBIT 5
[LETTERHEAD OF PITNEY BOWES CREDIT CORPORATION]
September 8, 1995
Pitney Bowes Credit Corporation
201 Merritt Seven
Norwalk, CT 06856-5151
Ladies and Gentlemen:
Referring to the Registration Statement on Form S-3 (the "Registration
Statement") which Pitney Bowes Credit Corporation (the "Company") is about to
file with the United States Securities and Exchange Commission (the
"Commission") under the United States Securities Act of 1933, as amended (the
"Act"), relating to $750,000,000 aggregate principal amount of the Company's
debt securities (the "Debt Securities") to be issued pursuant to an Indenture
(the "Indenture") between the Company and Chemical Bank, as Trustee, I am of the
opinion that:
(A) when (i) the Indenture has been duly authorized, executed and
delivered by the parties thereto, (ii) the Debt Securities, substantially in the
form set forth in the Indenture filed as an exhibit to the Registration
Statement, have been duly authorized by the Company and (iii) such Debt
Securities have been duly executed and authenticated in accordance with the
Indenture and duly delivered to and paid for by the purchasers thereof in the
manner described in the Registration Statement, the Debt Securities will
constitute valid and binding obligations of the Company enforceable in
accordance with their terms, except as the same may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and by general
principles of equity.
(B) the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware with full
power and authority to own its properties and conduct its business as described
in the prospectus forming a part of the Registration Statement; and
(C) the issuance of the Debt Securities has been duly authorized by
appropriate corporate action.
<PAGE>
I hereby consent to the filing of this opinion with the Commission in
connection with the filing of the Registration Statement. I also consent to the
use of my name under the caption "Validity of Debt Securities" in the prospectus
forming a part of the Registration Statement and to the filing, as an exhibit to
the Registration Statement, of this opinion. In giving such consent I do not
concede I am an "Expert" for the purposes of the Act.
Very truly yours,
/s/ Keith H. Williamson
Keith H. Williamson
Vice President, Secretary and
General Counsel
<PAGE>
EXHIBIT 12
Exhibit
Computation of Ratio of Earnings to Fixed Charges
-------------------------------------------------
<TABLE>
<CAPTION>
(Dollars in thousands)
Three Months Ended Six Months Ended
June 30, June 30, Years Ended December 31,
------------------ ------------------ ------------------------------------------------
1995 1994 1995 1994 1994 1993 1992 1991 1990
-------- ------- -------- -------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Income before income
taxes................ $ 55,498 $52,973 $107,963 $103,510 $218,913 $189,960 $185,704 $148,746 $131,582
-------- ------- -------- -------- -------- -------- -------- -------- --------
Fixed charges:
Interest on debt.... 50,918 36,806 99,467 70,130 151,239 137,372 146,594 167,236 164,699
1/3 rental expense.. 373 350 765 697 1,463 1,575 1,491 1,389 1,321
-------- ------- -------- -------- -------- -------- -------- -------- --------
Total fixed charges... 51,291 37,156 100,232 70,827 152,702 138,947 148,085 168,625 166,020
-------- ------- -------- -------- -------- -------- -------- -------- --------
Total................. $106,789 $90,129 $208,195 $174,337 $371,615 $328,907 $333,789 $317,371 $297,602
======== ======= ======== ======== ======== ======== ======== ======== ========
Ratio of earnings to
fixed charges(1)..... 2.08x 2.43x 2.08x 2.46x 2.43x 2.37x 2.25x 1.88x 1.79x
======== ======= ======== ======== ======== ======== ======== ======== ========
</TABLE>
(1) The ratio of earnings to fixed charges is computed by dividing income before
income taxes and fixed charges by fixed charges. Fixed charges consist of
interest on debt and one-third rental expense as representative of the
interest portion of rentals.
<PAGE>
EXHIBIT 23.(A)
Consent of Independent Accountants
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Amendment No. 1 to the Registration Statement on Form
S-3 of our report dated January 31, 1995 appearing on page 21 of Pitney Bowes
Credit Corporation's Annual Report on Form 10-K for the year ended December 31,
1994. We also consent to the reference to us under the heading "Experts" in such
Prospectus.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
Stamford, Connecticut
November 2, 1995
<PAGE>
EXHIBIT 23.(C)
[LETTERHEAD OF DAVIS POLK & WARDWELL]
September 8, 1995
Pitney Bowes Credit Corporation
201 Merritt Seven
Norwalk, Connecticut 06856-5151
Re: Pitney Bowes Credit Corporation
$750,000,000 Aggregate Principal
Amount of Debt Securities
--------------------------------
Ladies and Gentlemen:
We hereby consent to the use of our name under the caption "Validity of
Debt Securities" in the Prospectus contained in the Registration Statement on
Form S-3 of Pitney Bowes Credit Corporation. The issuance of such a consent does
not concede that we are an "Expert" for purposes of the Securities Act of 1933,
as amended.
Very truly yours,
/s/ Davis Polk & Wardwell
