As filed with the Securities and Exchange Commission on July 15, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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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 jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
27 Waterview Drive
Shelton, Connecticut 06484
(203) 922-4000
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
Christian D. Hughes, Esq.
27 Waterview Drive
Shelton, Connecticut 06484
(203) 922-4023
Vice President, Secretary and General Counsel
Pitney Bowes Credit Corporation
(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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<TABLE>
<CAPTION
CALCULATION OF REGISTRATION FEE
=================================================================================================================
Amount Proposed Maximum Proposed Maximum Amount of
Title of Each Class of to be Offering Price Aggregate Offering Registration
Securities to be Registered Registered* Per Unit** Price** Fee
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities................. $750,000,000 100% $750,000,000 $221,250
=================================================================================================================
* Or, if any Debt Securities (1) are denominated or payable in a foreign or
composite currency or currencies, such principal amount as shall result in
an aggregate initial offering price equivalent to $750,000,000 at the time
of initial offering, (2) are issued at an original issue discount, such
greater principal amount as shall result in an aggregate initial offering
price of $750,000,000, or (3) are issued with their principal amount
payable at maturity to be determined with reference to a currency
exchange rate or other index, such principal amount as shall result in
an aggregate initial offering price of $750,000,000.
** Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457 (a).
</TABLE>
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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.
==============================================================================
Subject to Completion, dated o, 1998
PITNEY BOWES CREDIT CORPORATION
Debt Securities
--------------------
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 accounts or acting as agents, or directly to other
purchasers. See "Plan of Distribution".
--------------------
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").
--------------------
This Prospectus may not be used to consummate sales of Debt Securities unless
accompanied by a Prospectus Supplement.
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The date of this Prospectus is July 15, 1998.
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.
No dealer, salesperson or other person has been authorized to
give any information or to make any representations not contained or
incorporated by reference in this Prospectus or the Prospectus Supplement, and,
if given or made, such information or representations must not be relied upon
as having been authorized. This Prospectus and the Prospectus Supplement do
not constitute an offer to sell or a solicitation of an offer to buy any
securities other than those to which they relate or an offer to sell, or a
solicitation of an offer to buy, such securities to any person in any
jurisdiction where such an offer or solicitation would be unlawful. Neither
the delivery of this Prospectus or any Prospectus Supplement nor any sale made
hereunder or thereunder shall, under any circumstances, create any implication
that the information contained or incorporated by reference herein or therein
is correct as of any time subsequent to their respective dates.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and, in
accordance therewith, files reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission"). Such reports,
proxy statements 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. The Commission maintains a
website on the internet containing reports, proxy and information statements
and other information regarding registrants, such as the Company, who file
electronically with the Commission. Materials filed in this manner may be
accessed through the website at http://www.sec.gov.
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 are hereby incorporated in this Prospectus by reference
the following documents which have been filed with the Commission (File No.
0-13497):
(i) the Company's Annual Report on Form 10-K for the year ended
December 31, 1997;
(ii) the Company's Quarterly Report on Form 10-Q for the period
ended March 31, 1998; and
(iii) the Company's Current Report on Form 8-K filed February
4, 1998.
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, 27 Waterview Drive, Shelton,
Connecticut 06484, telephone (203) 922-4000.
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 and mortgage
servicing 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 29,900 people throughout the United States,
Europe, Canada, Australia and other countries. PBI operates within three
industry segments: business equipment, business services, and commercial and
industrial financing.
The Internal Financing Division of PBCC provides marketing
support to PBI. Equipment leased or financed for these Internal Division
programs include mailing, paper handling and shipping equipment, scales,
copiers and facsimile units. 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. As part of the Company's focus on new
business initiatives, the Company launched in August, 1996, a revolving credit
product called Purchase Power(TM). This product allows Pitney Bowes customers
to finance postage as well as mailing, copier and facsimile supplies. The
Company earns income on balances from customers who elect to use this credit
facility.
PBCC's Capital Services (formerly the external financing
division) operates in the commercial and industrial market by offering
financial services to its customers for products not manufactured or sold by
PBI or its subsidiaries. Sales of lease transactions are part of the
Company's ongoing strategy to shift the foundation of the external large-ticket
financing business from asset-based to service-based. During 1997, the
Company reduced external large-ticket finance assets by approximately $1.0
billion, which represents approximately 50% of the portfolio balance before
the reduction. Products financed through Capital Services large-scale
financing programs include over-the-road trucks and trailers, railcars and
locomotives, and high-technology equipment such as data processing and
communications equipment. Transaction sizes range from $50,000 to several
million dollars, with lease terms generally from 36 to 180 months. The
Company's Capital Services division also participates, on a select basis, in
certain other types of financial transactions including: sales of lease
transactions, senior secured loans in connection with acquisition, leveraged
buyout and recapitalization financings, and certain project financings.
PBCC's Capital Services 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.
Colonial Pacific Leasing Corporation ("CPLC"), a wholly-owned
subsidiary of PBCC, operates in the small-ticket external market and is
located in Portland, Oregon. Colonial Pacific provides lease financing
services to small- and medium-sized businesses throughout the United States,
marketing primarily through a nationwide network of brokers and independent
lessors. Transaction size ranges from $2,000 to $2 million, with lease terms
generally from 24 to 72 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
hold or assume the credit risk on mortgages it services. In return for a
servicing 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.
AMIC originates mortgages on a select basis and sells originated mortgages in
the secondary market after a short holding period.
Financial Structures Limited ("FSL"), located in Bermuda, is a
wholly-owned subsidiary of PBCC through its intermediate subsidiary, FSL
Holdings, Inc. FSL, together with its affiliate, Financial Structures
Insurance Company, provides residual value insurance to unaffiliated third
parties, including manufacturers, financial institutions and leasing companies
involved in financing transactions. FSL mitigates its residual risk by
diversifying its portfolio by both asset type and maturity date.
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, noncancellable 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") dated June 12, 1995, 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 to 1 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 27 Waterview Drive, Shelton, Connecticut
06484, telephone (203) 922-4000.
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.
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:
Years Ended December 31,
------------------------
1997 1996 1995 1994 1993
---- ---- ---- ---- ----
2.39 2.31 2.14 2.43 2.37
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 Indenture under which the Debt Securities are to be issued.
The Debt Securities may be issued from time to time in one or more series.
The particular terms of each issue of the Debt Securities (the "Offered Debt
Securities") offered by any Prospectus Supplement and the extent, if any, to
which the general provisions of the Indenture may apply to the Offered Debt
Securities will be described in the Prospectus Supplement relating to such
Offered Debt Securities.
Offered Debt Securities are to be issued under an Indenture
(the "Indenture"), between the Company and SunTrust Bank, Atlanta, as Trustee.
A copy of the form of Indenture is filed as an exhibit to the Registration
Statement of which this Prospectus 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
provisions of the Indenture (including definitions therein of certain terms)
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. All
section references appearing herein are to sections of the Indenture.
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 applicable Prospectus Supplement for
the following terms of and information relating to the Offered Debt
Securities: (i) the title of the Offered Debt Securities; (ii) any limit on
the aggregate principal amount of the Offered Debt Securities; (iii) the price
or prices at which the Offered Debt Securities will be issued; (iv) the date
or dates on which principal of, and any premium on, the Offered Debt
Securities will be payable; (v) the rate or rates (which may be fixed or
variable) at which the Offered Debt Securities shall bear interest, if any, or
the method by which such rate or rates shall be determined, the basis on which
such interest, if any, shall be calculated if other than a 360-day year
consisting of twelve 30-day months, the date or dates from which such
interest, if any, will accrue and on which such interest, if any, will be
payable and the related record dates; (vi) if other than the offices of the
Trustee, the place where the principal of, and any premium and interest on,
the Offered Debt Securities will be payable; (vii) any redemption, repayment
or sinking fund provisions; (viii) if other than denominations of $1,000 or
multiples thereof, the denominations in which the Offered Debt Securities will
be issuable; (ix) if other than the principal amount thereof, the portion of
the principal amount due upon acceleration; (x) if other than U.S. dollars,
the currency or currencies or currency unit or currency units in which the
Offered Debt Securities will be denominated and in which principal of, and
premium, if any, and interest, if any, on, the Offered Debt Securities will
or may be payable; (xi) any index or formula used to determine the amount of
payments of principal of and any premium and interest on the Offered Debt
Securities; (xii) the terms and conditions, if any, pursuant to which the
Offered Debt Securities may be converted or exchanged for other securities of
the Company or any other person; (xiii) whether the Offered Debt Securities
shall be issued in the form of one or more Global Securities (as defined in
"Book-Entry System"); (xiv) the identity of any trustees, depositaries,
authenticating or paying agents, transfer agents or registrars with respect to
the Offered Debt Securities and (xv) any other specific terms of the Offered
Debt Securities not inconsistent with the Indenture. (Section 3.01)
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 and any integral
multiple of $1,000. (Section 3.02) 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 3.05)
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 3.01)
Certain Definitions
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 "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 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 "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 1.01)
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) will not waive
compliance under, amend in any material respect or terminate the Finance
Agreement; provided, however, that the Finance Agreement may be amended if
such amendments would not have a material adverse effect on the holders of any
outstanding Securities of any series or if the holders of at least the
majority in principal amount of the outstanding Securities of each series so
affected shall waive compliance with the provisions of the relevant Section of
the Indenture insofar as it relates to such amendment. (Section 10.06)
Restrictions on Creation of Secured Debt. 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.
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), (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 or sales of chattel paper in the ordinary course of business
or (ix) any lien, mortgage, pledge, security agreement, interest or
encumbrance securing indebtedness resulting from any financing transaction
entered into in the ordinary course of the Company's business involving the
sale of Company receivables consisting of loan and/or lease obligating owed
to the Company to any Subsidiary or special purpose entity formed for the
sale purpose of effecting such financing and which applies only to such
Subsidiaries or special purpose entity and its assets.
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 1.01 and
10.07)
Restrictions on Consolidation, Merger, Conveyance, Transfer or Lease
The Indenture provides that no consolidation or merger of the
Company with or into any other Person and no conveyance, transfer or lease of
its property substantially as an entirety to another Person 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; (iii) if, as a result thereof, any
assets of the Company would become subject to a mortgage or other encumbrance
which is not expressly permitted by the Indenture (see "Certain
Restrictions--Restrictions on Creation of Secured Debt") unless all the
outstanding Securities are secured by a lien upon such assets equal with (or
prior to) that of the indebtedness secured by such mortgage or encumbrance;
and (iv) the Company has delivered the required Officers' Certificate and
Opinion of Counsel to the Trustee. (Section 8.01)
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 6.13)
SunTrust Bank, Atlanta, the Trustee under the Indenture,
maintains a banking relationship with the Company.
Book-Entry System
If so specified in the applicable Prospectus Supplement, the
Offered Debt Securities may be represented by one or more certificates in
global form (each a "Global Security"). Each Global Security will be
deposited with, or on behalf of, a depositary, which, unless otherwise
specified in the applicable Prospectus Supplement, will be The Depository
Trust Company ("DTC"), New York, New York (including any successor depositary
appointed by the Company, the "Depositary"). The Global Securities will be
registered in the name of the Depositary or its nominee.
DTC has advised the Company that DTC is a limited purpose trust
company organized under the laws of the State of New York, a "banking
organization" within the meaning of the New York banking law, a member of the
Federal Reserve System, a "clearing corporation" within the meaning of the New
York Uniform Commercial Code and a "clearing agency" registered pursuant to
the provisions of Section 17A of the Exchange Act. DTC was created to hold
securities of its participants and to facilitate the clearance and settlement
of securities transactions among its participants through electronic
book-entry changes in accounts of the participants, thereby eliminating the
need for physical movement of securities certificates. The Depositary's
participants include securities brokers and dealers, banks, trust companies,
clearing corporations and certain other organizations, some of which (and/or
representatives of which) own the Depositary. Access to the Depositary's
book-entry system is also available to others, such as banks, brokers, dealers
and trust companies that clear through or maintain a custodial relationship
with a participant, either directly or indirectly.
Upon the issuance of a Global Security, the Depositary will
credit, on its book-entry registration and transfer system, the respective
principal amounts of the Debt Securities represented by such Global Security
to the accounts of participants. The accounts to be credited will be
designated by the underwriters, dealers or agents, if any, or by the Company,
if such Debt Securities are offered and sold directly by the Company.
Ownership of beneficial interests in a Global Security will be limited to
participants or persons that may hold interests through participants.
Ownership of beneficial interests by participants in a Global Security will be
shown on, and the transfer of that ownership interest will be effected only
through, records maintained by the Depositary or its nominee (with respect to
interests of participants) and on the records of participants (with respect to
interests of persons other than participants). The laws of some jurisdictions
may require that certain purchasers of securities take physical delivery of
such securities in certificated form. Such laws may impair the ability to
transfer beneficial interests in a Global Security.
So long as the Depositary or its nominee is the registered
owner of a Global Security, the Depositary or such nominee, as the case may
be, will be considered the sole owner or holder of the Debt Securities
represented by such Global Security for all purposes under the Indenture.
Except as set forth below, owners of beneficial interests in such Global
Security will not be entitled to have the Debt Securities represented thereby
registered in their names, will not receive or be entitled to receive physical
delivery of certificates representing the Debt Securities and will not be
considered the owners or holders thereof under the Indenture. Accordingly,
each person owning a beneficial interest in such Global Security must rely on
the procedures of the Depositary and, if such person is not a participant, on
the procedures of the participant through which such person owns its interest,
to exercise any rights of a holder under the Indenture.
Payment of principal of, and any premium and interest on, Debt
Securities represented by a Global Security will be made by the Company
through the Trustee or a paying agent (which may also be the Trustee) to the
Depositary or its nominee, as the case may be, as the registered owner and
holder of the Global Security representing such Debt Securities. Under the
terms of the Indenture, the Company and the Trustee may treat the persons in
whose names the Offered Debt Securities are registered as the owners thereof
for the purpose of receiving such payments and for any and all other purposes.
Consequently, none of the Company, the Trustee, any paying agent or registrar
for such Debt Securities will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests in a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
The Company expects that the Depositary or its nominee, as the
case may be, upon receipt of any payment of principal, premium or interest in
respect of a Global Security, will immediately credit participants' accounts
with payments in amounts proportionate to their respective beneficial
interests in the principal amount of such Global Security as shown on the
records of the Depositary or its nominee. The Company also expects that
payments by participants to owners of beneficial interests in such Global
Security held through such participants will be governed by standing
instructions and customary practices, as is now the case with securities held
for the accounts of customers registered in "street name," and will be the
responsibility of such participants.
A Global Security may not be transferred except as a whole by
the Depositary to its nominee or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the Depositary or its
nominee to a successor of the Depositary or a nominee of such successor. If
the Depositary for a Global Security is at any time unwilling or unable to
continue as depositary and a successor depositary is not appointed by the
Company within 90 days, the Company will issue Debt Securities in certificated
form in exchange for all of the Global Securities representing such Debt
Securities. In addition, the Company may at any time and in its sole
discretion determine not to have any Debt Securities represented by one or
more Global Securities and, in such event, will issue Debt Securities in
certificated form in exchange for all of the Global Securities representing
such Debt Securities. Further, if the Company so specifies with respect to
the Debt Securities of a series, an owner of a beneficial interest in a Global
Security representing Debt Securities of such series may on terms acceptable
to the Company and the Depositary receive Debt Securities of such series in
certificated form. In any such instance, an owner of a beneficial interest in
a Global Security will be entitled to physical delivery in certificated form
of Debt Securities of the series represented by such Global Security equal in
principal amount to such beneficial interest and to have such Debt Securities
registered in its name (Section 3.05).
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 to the Company and the Trustee by the holders of at least 25%
in principal amount of the Outstanding Securities of each series 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 5.01)
If an Event of Default under clause (a), (b), (c), (d) 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
affected 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 such series may rescind or annul such
declaration and its consequences. (Section 5.02) 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 10.08) 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 6.02)
The Company will be required to furnish to the Trustee annually
a certificate 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 10.09)
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 5.12 and 5.13)
The Indenture provides that in case an Event of Default has
occurred 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 6.01) 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 6.03)
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 9.02)
Defeasance and Discharge
The Indenture provides that with respect to the Securities of a
certain series, unless otherwise specified, the Company 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 securities
exchange to be de-listed as a result thereof and, if designated with respect to
the Securities of such series, 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 4.02)
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 with respect to the Securities of a
certain series, unless otherwise specified, the Company may omit to comply
with certain restrictive covenants described in Sections 10.06 (Maintenance of
Finance Agreement) and 10.07 (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. If specified with respect to the Securities of such series,
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 10.08) The designation
of such provisions, Federal income tax consequences and other considerations
applicable thereto will be described in the Prospectus Supplement relating
thereto.
Concerning the Trustee
Unless otherwise specified in the applicable Prospectus
Supplement, SunTrust Bank, Atlanta, is the Trustee, paying agent and registrar
under the Indenture.
Governing Law
The Indenture and the Debt Securities will be governed by the
laws of the State of New York.
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 Offered Debt Securities will set forth the terms of the
offering of such Offered Debt Securities, including the name or names of any
underwriters or agents, the purchase price of the Offered 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 Offered 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 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 Offered 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. Certain agents and
underwriters, including their affiliates, may be customers of, have engaged or
will engage in transactions with, or have performed or will perform services
for, the Company in the ordinary course of business. The agents and the
underwriters, including their affiliates, have and will receive fees and
commissions from the Company for these services.
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 Christian D. Hughes, 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, 1997 have been so incorporated in reliance on
the report of PricewaterhouseCoopers LLP, independent accountants, given
on the authority of said firm as experts in auditing and accounting.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Securities and Exchange Commission Registration Fee........ $221,250
-------
Trustee's Fees and Expenses................................ 15,000
-------
Printing and Engraving Expenses............................ 20,000
-------
Rating Agency Fees......................................... 25,000
-------
Accounting Fees and Expenses............................... 30,000
-------
Legal Fees and Expenses.................................... 50,000
-------
Blue Sky and Legality Fees and Expenses.................... 5,000
-------
Miscellaneous Expenses..................................... 3,750
-------
Total..................................................... $ 370,000
=======
- ------------
The above items are estimates except the registration fee.
Item 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law allows for
indemnification of any person who has been made, or threatened to be made, a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative by reason of the fact
that he or she is or was serving as a director, officer, employee or agent of
the registrant or by reason of the fact that he or she 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 attorneys' 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 Delaware General Corporation Law
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 Delaware General Corporation Law.
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.
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 -- Form of Indenture between the Company and SunTrust Bank, Atlanta, as Trustee Exhibit 4
5.1 -- Opinion re legality Exhibit 5.1
12 -- Computation of Ratio of Earnings to Fixed Charges of Pitney Bowes Credit
Corporation Exhibit 12
23(a) -- Consent of PricewaterhouseCoopers LLP Exhibit 23(a)
23(b) -- Consent of Christian D. Hughes, Esq. Exhibit 23(b)
23(c) -- Consent of Davis Polk & Wardwell (included in opinion filed as Exhibit 5.1) Exhibit 23(c)
24 -- Power of Attorney (contained on signature page) Exhibit 24
25 -- Statement of eligibility of trustee Exhibit 25
- ------------
*To be filed by amendment or under cover of Form 8-K.
</TABLE>
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
(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 Company'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 Company 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, the Company has been informed 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Shelton, State of
Connecticut, on this 15 day of July, 1998.
PITNEY BOWES CREDIT CORPORATION
By /s/ G. Kirk Hudson
-------------------------------------
G. Kirk Hudson
Vice President-Finance
(Principal Financial and Accounting
Officer)
POWER OF ATTORNEY
The Company and each person whose signature appears below
constitutes and appoints Matthew S. Kissner, G. Kirk Hudson and Christian D.
Hughes, and any agent for service named in this Registration Statement and
each of them singly, his, her or its true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him, her or it
and in his, her, or its name, place and stead, in any and all capacities, to
sign any registration statements and any and all amendments (including
post-effective amendments filed pursuant to Rule 462(b) under the Securities
Act of 1933, as amended) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents, and each of them singly, full power and authority to do and
perform each and every act and thing requisite or necessary to be done in and
about the premises, as fully to all intents and purposes as he, she, or it
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their or his or her substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Matthew S. Kissner President and Chief Executive July 15, 1998
- -------------------------- Officer-Director
Matthew S. Kissner
/s/ G. Kirk Hudson Vice President-Finance July 15, 1998
- -------------------------- (Principal Financial and
G. Kirk Hudson Accounting Officer)
/s/ Marc C. Breslawsky Director July 15, 1998
- --------------------------
Marc C. Breslawsky
/s/ Michael J. Critelli Director July 15, 1998
- --------------------------
Michael J. Critelli
/s/ Arlen F. Henock Director July 15, 1998
- --------------------------
Arlen F. Henock
/s/ John N.D. Moody Director July 15, 1998
- --------------------------
John N.D. Moody
/s/ Sara E. Moss Director July 15, 1998
- --------------------------
Sara E. Moss
/s/ Harry W. Neinstedt Director July 15, 1998
- --------------------------
Harry W. Neinstedt
/s/ Murray L. Reichenstein Director July 15, 1998
- ---------------------------
Murray L. Reichenstein
/s/ Douglas A. Riggs Director July 15, 1998
- -----------------------
Douglas A. Riggs
</TABLE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibits Description Page
- -------- ----------- ----
<S> <C> <C>
1(a) -- Form of Underwriting Agreement
1(b)* -- Form of Distribution Agreement
4 -- Form of Indenture between the Company and SunTrust Bank, Atlanta, as Trustee
5.1 -- Opinion re legality
12 -- Computation of Ratio of Earnings to Fixed Charges of Pitney Bowes Credit Corporation
23(a) -- Consent of PricewaterhouseCoopers LLP
23(b) -- Consent of Christian D. Hughes, Esq.
23(c) -- Consent of Davis Polk & Wardwell (included in opinion filed as Exhibit 5.1)
24 -- Power of Attorney (contained on signature page)
25 -- Statement of eligibility of trustee
- ------------
*To be filed by amendment or under cover of Form 8-K.
</TABLE>
EXHIBIT 1(a)
PITNEY BOWES CREDIT CORPORATION
DEBT SECURITIES
UNDERWRITING AGREEMENT
----------------------
, 1998
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 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 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 the other Underwriters, have
been declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a
"Rule 462(b) registration statement"), filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended (the "Act"), which
becomes effective upon filing, 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; and no stop order suspending the effectiveness of any such
registration statement has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in any such registration statement or
filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Act, being hereinafter called
a "Preliminary Prospectus"; the various parts of such registration
statements and the Rule 462(b) registration statement, if any,
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 statement became effective
or the Rule 462(b) registration statement, if any, becomes 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
any such registration statement, each as amended at the time such part
of the registration statement became effective or such part of the
Rule 462(b) registration statement, if any, becomes 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 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, or to any Rule
462(b) registration statement 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;
(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 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
longterm 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 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 under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its material subsidiaries or Pitney Bowes
is a party or by which the Company or any of its material subsidiaries
or Pitney Bowes is bound or to which any of the property or assets of
the Company or Pitney Bowes is subject that is material to the Company
and its subsidiaries, taken as a whole, including, without limitation,
the Finance Agreement, dated June 12, 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 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) The Company has complied with all provisions of
Section 517.075, Florida Statutes relating to doing business with the
Government of Cuba or with any person or affiliate located in Cuba;
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 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 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 twenty-four
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
wire transfer in immediately available funds to an account of the Company as
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.
Concurrently with the delivery of and payment for the
Underwriters' Securities, the Company will deliver to the Representatives for
the accounts of the Underwriters by wire transfer in immediately available
funds to the order of the party designated in the Pricing Agreement relating
to such Securities 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 Rules
424(b) or 462(b) under the Act, as applicable, not later than the
Commission's close of business on the business day so required by Rule
424(b), if applicable, 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, 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 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 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 and
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
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; if the Company has elected
to rely on Rule 462(b), the Rule 462(b) registration statement has
become effective by 10:00 p.m. Washington, D.C. time, on the date of
the Pricing Agreement; 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 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 her written opinion, dated the Time
of Delivery for such Designated Securities, in form and substance
satisfactory to the Representatives and as set forth in Annex II
hereto.
(d) Counsel for the Company satisfactory to the
Representatives shall have furnished to the Representatives their
written opinion, dated the Time of Delivery for such Designated
Securities, in form and substance satisfactory to the Representatives
and as set forth in Annex III hereto.
(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
Delivery to the effect set forth in Annex IV 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 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 or
preferred stock 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 implications, its rating of any of the Company's
debt securities or preferred stock;
(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 between the
Company and Pitney Bowes, 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 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 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 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 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 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 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 express mail (with guaranteed overnight delivery) 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 or facsimile transmission to the address of the Company set
forth in the Registration Statement, Attention: Corporate Secretary;
provided, however, that any notice to an Underwriter pursuant to Section
8(c) hereof shall be delivered or sent by mail or facsimile transmission to
such Underwriter at its address set forth in its Underwriters'
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.
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:
----------------------------------
[Title]
By:
----------------------------------
[Title]
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 May ___, 1998 (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
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:
----------------------------------
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
SCHEDULE I
Principal Amount
of Designated
Securities
Underwriter to be Purchased
----------- ----------------
[Name(s) of Representatives]................ $
---------------
[Names of other Underwriters]...............
---------------
Total................................. $
===============
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
[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.]
Indenture:
Indenture, dated as of __________, 1998 (the "Indenture") between
the Company and SunTrust Bank, Atlanta, as Trustee
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, or redemption at the option of the holders of the Designated
Securities]
[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 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]
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]*:
- ------------
* 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.
ANNEX II
Pursuant to Section 7(c) of the Underwriting Agreement,
Christian D. Hughes, Vice President, Secretary and General Counsel for the
Company, shall furnish an opinion 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;
(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;
(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 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 any of its material subsidiaries or Pitney Bowes is a
party or by which the Company or any of its material subsidiaries
or Pitney Bowes is bound or to which any of the property or
assets of the Company or any of its material subsidiaries 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 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 opinion,
such counsel 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 and the Form T-1, 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 and the Form
T-1, 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.
Such counsel's opinion shall state that it is limited to the
Federal laws of the United States, the laws of the State of New York and the
General Corporation Law of the State of Delaware.
In connection with (vi) and (vii) above, such counsel may
assume that the Indenture has been duly authorized, executed and delivered by
the Trustee, that the Notes conform to the specimens thereof examined by such
counsel, that the Trustee's certificates of authentication of the Notes will
be manually signed by one of the Trustee's authorized officers and that the
signatures on all the documents examined by such counsel are genuine, all
without independent verification.
Such counsel may also assume that none of the terms of any
Designated Security to be established subsequent to the date of such counsel's
opinion nor the issuance and delivery of such Designated Security, nor the
compliance by the Company with the terms of such Designated Security, will
violate any applicable law or will result in a violation of any provision of
any instrument or agreement then binding upon the Company, or any restriction
imposed by any court or governmental body having jurisdiction over the
Company.
ANNEX III
Pursuant to Section 7(d) of the Underwriting Agreement, Davis
Polk & Wardwell, Counsel for the Company, shall furnish an opinion 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 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) above, 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 and the Form T-1, 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 and the
Form T-1, 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 and the Form T-1, 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.
With respect to paragraph (iv) above, Davis Polk & Wardwell may
assume that the Indenture has been duly authorized, executed and delivered by
the Trustee without independent verification.
ANNEX IV
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;
(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 Items 301, 302 and 503(d),
respectively, 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 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 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
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 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 IV 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.
ANNEX V
Delayed Delivery Contract
, ____
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:
Date from Which
Delivery Date Principal Amount Interest Accrues
------------- ---------------- ----------------
, 199 $ , 199
, 199 $ , 199
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 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)
==============================================================================
EXHIBIT 4
PITNEY BOWES CREDIT CORPORATION,
Issuer
TO
SUNTRUST BANK, ATLANTA,
Trustee
---------
Indenture
Dated as , 1998
---------
==============================================================================
Reconciliation and tie(1) between Trust Indenture Act of 1939, as amended, and
Indenture, dated as of July , 1998
between
Pitney Bowes Credit Corporation, Issuer
and
SunTrust Bank, Atlanta, Trustee
- ------------
(1)NOTE: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
Trust Indenture Indenture
Act Section Section
Section 310(a)(1).................................. 6.09
(a)(2)....................................... 6.09
(a)(3)....................................... Not Applicable
(a)(4)....................................... Not Applicable
(b).......................................... 6.08
............................................. 6.10
Section 311(a)..................................... 6.13(a)
(b).......................................... 6.13(b)
(b)(2)....................................... 7.03(a)(ii)
Section 312(a)..................................... 7.01
............................................. 7.02(a)
(b).......................................... 7.02(b)
(c).......................................... 7.02(c)
Section 313(a)..................................... 7.03(a)
(b).......................................... 7.03(b)
(c).......................................... 7.03(a), 7.03(b)
(d).......................................... 7.03(c)
Section 314(a)..................................... 7.04
(b).......................................... Not Applicable
(c)(1)....................................... 1.02
(c)(2)....................................... 1.02
(c)(3)....................................... Not Applicable
(d).......................................... Not Applicable
(e).......................................... 1.02
Section 315 (a).................................... 6.01(a)
(b).......................................... 6.02
............................................. 7.03(a)(vi)
(c).......................................... 6.01(b)
(d).......................................... 6.01(c)
(d)(1)....................................... 6.01(a)(i)
(d)(2)....................................... 6.01(c)(ii)
(d)(3)....................................... 6.01(c)(iii)
(e).......................................... 5.14
Section 316 (a).................................... 1.01
(a)(1)(A).................................... 5.02
............................................. 5.12
(a)(1)(B).................................... 5.13
(a)(2)....................................... Not Applicable
(b).......................................... 5.08
Section 317 (a)(1)................................. 5.03
(a)(2)....................................... 5.04
(b).......................................... 10.03
Section 318 (a).................................... 1.07
TABLE OF CONTENTS
--------------
Page
ARTICLE 1
Definitions and Other Provisions
Section 1.1. Definitions.............................................1
Section 1.2. Compliance Certificates and Opinions....................9
Section 1.3. Form of Documents Delivered to Trustee.................10
Section 1.4. Acts of Holders........................................10
Section 1.5. Notices, Etc., to Trustee and Company..................11
Section 1.6. Notice of Holders; Waiver..............................12
Section 1.7. Conflict with Trust Indenture Act......................12
Section 1.8. Effect of Headings and Table of Contents...............12
Section 1.9. Successors and Assigns.................................12
Section 1.10. Separability Clause....................................13
Section 1.11. Benefits of Indenture..................................13
Section 1.12. Governing Law..........................................13
Section 1.13. Legal Holidays.........................................13
ARTICLE 2
Security Forms
Section 2.1. Forms Generally........................................13
Section 2.2. Securities in Permanent Global Form....................14
ARTICLE 3
The Securities
Section 3.1. Amount Unlimited; Issuable in Series...................15
Section 3.2. Denominations..........................................18
Section 3.3. Execution, Authentication, Delivery and Dating.........18
Section 3.4. Temporary Securities...................................20
Section 3.5. Registration, Registration of Transfer and Exchange....21
Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities.......24
Section 3.7. Payment of Interest; Interest Rights Preserved.........25
Section 3.8. Persons Deemed Owners..................................26
Section 3.9. Cancellation...........................................27
Section 3.10. Computation of Interest................................27
Section 3.11. Rights under Finance Agreement.........................27
ARTICLE 4
Satisfaction and Discharge
Section 4.1. Satisfaction and Discharge of Indenture................27
Section 4.2. Defeasance of Securities of Any Series.................29
Section 4.3. Application of Trust Funds; Indemnification............30
Section 4.4. Reinstatement..........................................31
ARTICLE 5
Remedies
Section 5.1. Events of Default......................................32
Section 5.2. Acceleration of Maturity; Rescission and Annulment.....33
Section 5.3. Collection of Indebtedness and Suits for Enforcement
by Trustee.............................................35
Section 5.4. Trustee May File Proofs of Claim.......................36
Section 5.5. Trustee May Enforce Claims Without Possession of
Securities.............................................37
Section 5.6. Application of Money Collected.........................37
Section 5.7. Limitation on Suits....................................37
Section 5.8. Unconditional Right of Holders to Receive Principal,
Premium and Interest...................................38
Section 5.9. Restoration of Rights and Remedies.....................38
Section 5.10. Rights and Remedies Cumulative.........................39
Section 5.11. Delay or Omission Not Waiver...........................39
Section 5.12. Control by Holders.....................................39
Section 5.13. Waiver of Past Defaults................................40
Section 5.14. Undertaking for Costs..................................40
Section 5.15. Waiver of Usury, Stay or Extension Law.................41
ARTICLE 6
The Trustee
Section 6.1. Certain Duties and Responsibilities....................41
Section 6.2. Notice of Defaults.....................................42
Section 6.3. Certain Rights of Trustee..............................43
Section 6.4. Not Responsible for Recitals or Issuance of Securities.44
Section 6.5. May Hold Securities....................................44
Section 6.6. Money Held in Trust....................................44
Section 6.7. Compensation and Reimbursement.........................45
Section 6.8. Disqualification; Conflicting Interest.................45
Section 6.9. Corporate Trustee Required; Eligibility................46
Section 6.10. Resignation and Removal; Appointment of Successor......46
Section 6.11. Acceptance of Appointment by Successor.................48
Section 6.12. Merger, Conversion, Consolidation or Succession to
Business...............................................49
Section 6.13. Preferential Collection of Claims Against Company......49
Section 6.14. Appointment of Authenticating Agent....................54
ARTICLE 7
Holders' List and Reports by Trustee and Company
Section 7.1. Company to Furnish Trustee Names and Addresses of
Holders................................................57
Section 7.2. Preservation of Information; Communications to
Holders................................................57
Section 7.3. Reports by Trustee.....................................58
Section 7.4. Reports by Company.....................................60
ARTICLE 8
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.1. Company May Consolidate, Etc., Only on Certain Terms...61
Section 8.2. Successor Corporation Substituted......................62
ARTICLE 9
Supplemental Indentures
Section 9.1. Supplemental Indentures Without Consent of Holders.....63
Section 9.2. Supplemental Indentures with Consent of Holders........64
Section 9.3. Execution of Supplemental Indentures...................65
Section 9.4. Effect of Supplemental Indentures......................65
Section 9.5. Conformity with Trust Indenture Act....................66
Section 9.6. Reference in Securities to Supplemental Indentures.....66
ARTICLE 10
Covenants
Section 10.1. Payment of Principal, Premium and Interest............66
Section 10.2. Maintenance of Office or Agency.......................66
Section 10.3. Money for Securities Payments to Be Held in Trust.....67
Section 10.4. Corporate Existence...................................68
Section 10.5. Payment of Taxes and Other Claims.....................69
Section 10.6. Maintenance of Finance Agreement......................69
Section 10.7. Restriction on Creation of Secured Debt...............69
Section 10.8. Defeasance of Certain Obligations.....................72
Section 10.9. Certificate of Officers of the Company................73
Section 10.10. Waiver of Certain Covenants...........................73
ARTICLE 11
Redemption of Securities
Section 11.1. Applicability of Article..............................74
Section 11.2. Election to Redeem; Notice to Trustee.................74
Section 11.3. Selection by Trustee of Securities to Be Redeemed.....74
Section 11.4. Notice of Redemption..................................75
Section 11.5. Deposit of Redemption Price...........................76
Section 11.6. Securities Payable on Redemption Date.................76
Section 11.7. Securities Redeemed in Part...........................76
ARTICLE 12
Sinking Funds
Section 12.1. Applicability of Article..............................77
Section 12.2. Satisfaction of Sinking Fund Payments with Securities.77
Section 12.3. Redemption of Securities for Sinking Fund.............77
ANNEX A - FORM OF SECURITIES..........................................A1
INDENTURE, dated as of July , 1998, between PITNEY BOWES
CREDIT CORPORATION, a corporation duly organized and existing under the laws
of the State of Delaware (herein called the "Company"), having its principal
office at 27 Waterview Drive, Shelton, Connecticut 06484-8000, and SunTrust
Bank, Atlanta, a banking corporation duly organized and existing under the
laws of the State of Georgia, 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 1
Definitions and Other Provisions
Section 1.1. Definitions For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) 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;
(c) 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
(d) 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 1.4.
"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 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
Atlanta, Georgia 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 3495 Piedmont Road, Bldg. 10,
Suite 810, Atlanta, Georgia 30305.
"Corporation" includes corporations, associations, companies and
business trusts.
"Defaulted Interest" has the meaning specified in Section 3.7.
"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 3.1, 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 5.1.
"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 3.1.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only upon Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an installment 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.
"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 5.2.
"Outstanding", 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 canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption (a) money 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 4.2 in the necessary amount have been theretofore deposited with
the Trustee (or another trustee satisfying the requirements of Section 6.9) in
trust for the Holders of such Securities in accordance with Section 4.3;
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;
(iii) Securities as to which Defeasance has been effected pursuant to
Section 4.2 and not reinstated pursuant to Section 4.4; and
(iv) Securities which have been paid pursuant to Section 3.6 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, waiver or other action
hereunder as of any date (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be the
amount of the principal thereof which would be due and payable as of such
date upon acceleration of the Maturity thereof to such date pursuant to
Section 5.2, (B) if, as of such date, the principal amount payable at the
Stated Maturity of a Security is not determinable, the principal amount of
such Security which shall be deemed to be Outstanding shall be the amount
as specified or determined as contemplated by Section 3.1, (C) the
principal amount of a Security denominated in one or more foreign
currencies or currency units which shall be deemed to be Outstanding shall
be the U.S. dollar equivalent, determined as of such date in the manner
provided as contemplated by Section 3.1, of the principal amount of such
Security (or, in the case of a Security described in Clause 1.1(d)(iv)(A)
or 1.1(d)(iv)(B) above, of the amount determined as provided in such
Clause), and (D) 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, waiver or other
action, only Securities which a Responsible Officer of 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.
"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 3.1.
"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 3.6 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 3.1.
"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 3.5.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 3.7.
"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 mean 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
provided, however, that in the event the Trust Indenture Act of 1939 is
amended after such date, "Trust Indenture Act" means, to the extent required
by such amendment, the Trust Indenture Act of 1939 as so amended.
"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 depositary 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 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 1.2. 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
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3. 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.
Section 1.4. 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 6.1) 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.
(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 1.5. 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,
(a) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, Attention: Corporate Trustee
Administration Department, or at any other address previously furnished in
writing to the Company and the Holders by the Trustee; or
(b) 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 1.6. 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 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 1.7. 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 1.8. 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 1.9. Successors and Assigns
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 1.10. 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 1.11. 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.
Section 1.12. 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 1.13. 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 2
Security Forms
Section 2.1. Forms Generally
The Securities of each series shall be in substantially the
form set forth in Exhibit A, 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 3.3 for the authentication and delivery of such Securities.
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 2.2. Securities in Permanent Global Form
If the Company shall establish pursuant to Section 3.1 that the
Securities of a series are to be issued in whole or in part in permanent global
form, then notwithstanding Section 3.1(h) and the provisions of Section 3.2,
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 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 3.3 or Section 3.4. Subject to the
provisions of Section 3.3 and, if applicable, Section 3.4, 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 3.3 or 3.4 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 1.2 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 3.3 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 1.2 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 3.3.
Unless otherwise specified as contemplated by Section 3.1 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.
ARTICLE 3
The Securities
Section 3.1. 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 3.3, 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
(a) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(b) 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 3.4, 3.5, 3.6, 9.6 or 11.7 and except for any
Securities which, pursuant to Section 3.3 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);
(c) the date or dates on which the principal of the Securities of
the series is payable;
(d) the Person to whom any interest on any Security of the series
shall be payable if other than as set forth in Section 3.7; 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 and the Regular Record Date, for the interest
payable on any Interest Payment Date;
(e) the place or places where the principal of and any premium or
interest on Securities of the series shall be payable;
(f) 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;
(g) 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;
(h) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(i) 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 5.2;
(j) if applicable, that the Securities of the Series, in whole or
any specified part, shall be defeasible pursuant to Section 4.2 or Section
10.8 or both Sections and if other than a Board Resolution, the manner in
which any election by the Company to defease those securities shall be
evidenced;
(k) 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 2.2,
(ii) any circumstances in addition to or in lieu of those set forth in Clause
3.5(b) in which such permanent global Security may be exchanged in whole or in
part for Securities registered, and in which 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;
(l) the currency or currencies, including composite currencies, in
which payment of the principal of, and any premium and interest on, the
Securities of the series shall be payable if other than the currency of the
United States of America;
(m) 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);
(n) if the amount of payments of principal of, or any premium or
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;
(o) 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 which such amount deemed to be the
principal amount shall be determined);
(p) any addition to or change in the Events of Default which
applies to any Securities of the series and any change in the right of the
Trustee or the requisite Holders of such Securities to declare the principal
amount thereof due and payable pursuant to Section 5.1;
(q) any addition to or change in the covenants set forth in
Article Ten which applies to any Securities of the series; and
(r) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 9.1(e)).
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
3.3) 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 3.2. 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
3.1. 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 3.3. 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.
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 2.1 and 3.1, 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
6.1) 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 2.1, 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 3.1, 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 3.1 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 3.1 or the Company Order
and Opinion of Counsel otherwise required pursuant to such preceding paragraph
at or prior to the time of 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 2.2, 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 3.9 together with a written statement
(which need not comply with Section 1.2 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 3.4. 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 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 3.5. 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 Securities 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 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 3.4, 9.6 or 11.7 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
11.3 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 (a) - (g) below shall apply only to
permanent global Securities:
(a) 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.
(b) 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 (i) the Depositary
notifies the Company pursuant to Clause 3.5(d) of this Section that it is
unwilling or unable to continue as Depositary for such 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, (ii) if the
Company in its sole discretion determines pursuant to Clause 3.5(e) of this
Section 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, (iii) 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 or (iv) there shall exist such circumstances, if any, in addition or
in lieu of the foregoing as have been specified for this purpose as
contemplated by Section 3.1.
(c) Subject to Clause 3.5(b) 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. The Trustee shall deliver such Securities to or
as directed by the Persons in whose names such Securities are so registered.
(d) If at any time the Depositary for any Securities of a series
represented by one or more global Securities notifies the Company that it is
unwilling or unable to continue as Depositary for such Securities or if at any
time the Depositary ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, the Company shall appoint a
successor Depositary with respect to such Securities. If a successor
Depositary for such Securities is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of such ineligibility
(and in any event before the Depositary surrenders such global Security for
exchange), the Company's election that such Securities be represented by one
or more global Securities shall no longer be effective and the Company shall
execute, and the Trustee, upon receipt of an Officers' Certificate for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series in definitive registered
form without coupons, in any authorized denominations, in an aggregate
principal amount equal to the principal amount of the global Security or
Securities representing such Securities in exchange for such global Security
or Securities.
(e) The Company may at any time and in its sole discretion
determine that the Securities of any series issued in the form of one or more
global Securities shall no longer be represented by a global Security or
Securities. In such event the Company will execute, and the Trustee, upon
receipt of an Officers' Certificate for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver Securities
of such series in definitive registered form, in any authorized denominations,
in an aggregate principal amount equal to the principal amount of the global
Security or Securities representing such Securities, in exchange for such
global Security or Securities.
(f) Subject to Clause 3.5(b) above, with respect to Securities
represented by a global Security, the Depositary for such global Security may
surrender such global Security in exchange in whole or in part for Securities
of the same series in definitive registered form on such terms as are
acceptable to the Company and such Depositary. Thereupon, the Company shall
execute, and the Trustee shall authenticate and deliver, without service
charge,
(i) to the Person specified by such Depositary a new
Security or Securities of the same series, of any authorized
denomination as requested by such Person, in an aggregate
principal amount equal to and in exchange for such Person's
beneficial interest in the global Security; and
(ii) to such Depositary a new global Security in a
denomination equal to the difference, if any, between the
principal amount of the surrendered global Security and the
aggregate principal amount of Securities authenticated and
delivered pursuant to clause 3.5(f)(i) above.
Upon the exchange of a global Security for Securities in
definitive registered form, in authorized denominations, such global Security
shall be canceled by the Trustee.
(g) 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 3.4, 3.6, 9.6 or 11.7 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 3.6. 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.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, 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
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 3.7. Payment of Interest; Interest Rights Preserved
Unless otherwise provided as contemplated by Section 3.1 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 (a) or (b) below:
(a) 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 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 Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit prior
to the date of the proposed payment, such money when deposited to be held in
trust for the benefit of the 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
3.7(b).
(b) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which 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.
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 3.8. 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 3.7) 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 3.9. 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 canceled 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 3.10. Computation of Interest
Except as otherwise specified as contemplated by Section 3.1 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 3.11. Rights under Finance Agreement
All Securities issued hereunder shall be entitled to the
benefits of the Finance Agreement and shall be deemed to be "Approved Debt"
thereunder.
ARTICLE 4
Satisfaction and Discharge
Section 4.1. 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
(a) either
(i) all Securities theretofore authenticated and delivered
(other than (x) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 3.6 and
(y) 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 10.3) have been delivered to the Trustee for cancellation; or
(ii) all such Securities not theretofore delivered to the
Trustee for cancellation
(A) have become due and payable, or
(B) will become due and payable at their Stated
Maturity within one year, or
(C) 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 (A), (B) or (C) 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 theretofore delivered to the Trustee for cancellation,
for principal, and any premium or 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;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) 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 Sections 4.3(b)
and 6.7, the obligations of the Trustee to any Authenticating Agent under
Section 6.14 and, if money shall have been deposited with the Trustee pursuant
to subclause 4.1(a)(ii), the obligations of the Trustee under Section 4.3 and
the last paragraph of Section 10.3 shall survive.
Section 4.2. Defeasance of Securities of Any Series
Unless otherwise specified pursuant to Section 3.1 with respect
to the Securities of any series, then notwithstanding Section 4.1, 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 4.2(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) (hereinafter
called "Defeasance"), except as to:
(a) the rights of Holders of Securities to receive, from the trust
funds described in subparagraph 4.2(d) hereof, (i) payment of the principal of
and any premium and each instalment of principal of and any premium 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
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 3.5, 3.6, 4.3, 10.2 and 10.3; 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 irrevocably
deposited or caused to be irrevocably deposited with the Trustee as trust funds
for purposes of making the following payments, 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 4.2(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, and which shall be applied by the Trustee
for such purposes, (A) the principal of and any premium and each instalment of
principal and any premium or interest on the Outstanding Securities of that
series on the Stated Maturity of such principal or instalment of principal or
interest or the Redemption Date, as the case may be, 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, each in
accordance with the terms of this Indenture and of such Securities;
(e) such Defeasance shall not cause the Trustee with respect to the
Securities of that series to have a conflicting interest as defined in Section
6.8 and for purposes of the Trust Indenture Act with respect to the Securities
of any series;
(f) such Defeasance 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;
(g) such Defeasance 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 Opinion of Counsel
stating that (i) 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; (ii)
such deposits, defeasances and discharge would not cause any outstanding
Security of such series then listed on any nationally recognized securities
exchange to be delisted as a result thereof; and (iii) and that such Defeasance
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
(j) 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 4.3. Application of Trust Funds; Indemnification
(a) Subject to the provisions of the last paragraph of Section
10.3, all money deposited with the Trustee pursuant to Section 4.1, all money
and U.S. Government Obligations deposited with the Trustee pursuant to Section
4.2 or Section 10.8 and all money received by the Trustee in respect of U.S.
Government Obligations deposited with the Trustee pursuant to Section 4.2 or
Section 10.8 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 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 4.2 or
Section 10.8, 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 4.2 or Section 10.8 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 4.2 or 10.8 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 4.4. Reinstatement
If the Trustee or the Paying Agent is unable to apply any money
in accordance with Section 4.2 or 10.8 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 or upon the occurrence of
an Event of Default, then the obligations under this Indenture and such
Securities from which the Company has been discharged or released pursuant to
Section 4.2 or 10.8 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 4.3 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 5
Remedies
Section 5.1. 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):
(a) 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
(b) default in the payment of the principal of (or premium, if any
on) any Security of that series at its Maturity; or
(c) default in the deposit of any sinking fund payment, when and
as due by the terms of a Security of that series; or
(d) 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 Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of each series affected 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
(e) 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 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
(f) 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
(g) any events of default provided with respect to Securities of
that Series.
Section 5.2. Acceleration of Maturity; Rescission and
Annulment
If an Event of Default described in clause 5.1(a), 5.1(b),
5.1(c), 5.1(d) or 5.1(g) with respect to Securities of any series at the time
Outstanding occurs 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 5.1(a), 5.1(b), 5.1(c) or 5.1(g), and
all such series voting as one class in the case of such an Event of Default
under clause 5.1(d)) 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
5.1(d) with respect to all series of Securities then Outstanding, or any Event
of Default described in clause 5.1(e) or 5.1(f) 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
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(i) the overdue interest on all Securities of the series,
(ii) 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 thereon at the rate or rates prescribed therefor in
such Securities,
(iii) 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
(iv) 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 all other amounts due under Section 6.7;
and
(b) 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 5.13.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
Section 5.3. Collection of Indebtedness and Suits for
Enforcement by Trustee
The Company covenants that if
(a) 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
(b) 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 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 5.4. 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,
(a) 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
(b) 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 Section
6.7.
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 5.5. 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 5.6. 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 this Indenture; and
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 5.7. 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
(a) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that
series;
(b) 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;
(c) 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;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
(e) 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 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 5.8. 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 3.7) 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 5.9. 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 5.10. 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 3.6, 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 the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section 5.11. 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 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 5.12. Control by Holders
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(a) such direction shall not be in conflict with any rule of law
or with this Indenture,
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(c) 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 5.7.
Section 5.13. 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 5.1(d) which
relates to less than all series of Outstanding Securities or described in
clause 5.1(g) 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
affected thereby waive any past default described in said clause 5.1(d),
5.1(e), and 5.1(f) with respect to the Securities of such series and its
consequences, except in any such case a default
(a) in the payment of the principal of, or any premium or interest
on, any Security of such series, or
(b) 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 5.14. 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, having
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 25% 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 5.15. Waiver of Usury, Stay or Extension Law
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) 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 6
The Trustee
Section 6.1. Certain Duties and Responsibilities
(a) Except during the continuance of an Event of Default,
(i) 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
(ii) 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 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
(i) this Subsection shall not be construed to limit the
effect of Subsection 6.1(a);
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Trustee was negligent in ascertaining
the pertinent facts;
(iii) 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 5.12, 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
(iv) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not
reasonably assured to it.
(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 6.2. Notice of Defaults
Within 90 days after receipt by the Trustee of written notice
of the occurrence of any default hereunder with respect to the Securities of
any series the Trustee shall transmit in the manner and to the extent provided
in Section 7.3(d), 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 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 5.1(d) 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 6.3. Certain Rights of Trustee
Subject to the provisions of Section 6.1:
(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 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;
(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; and
(i) The Trustee's immunities and protections from liability and its
rights to compensation and indemnification in connection with the performance
of its duties under this Indenture shall extend to the Trustee's officers,
directors, agents and employees. Such immunities and protections and right to
indemnification, together with the Trustee's right to compensation, shall
survive the Trustee's resignation or removal and final payment of the
Securities.
Section 6.4. 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 6.5. 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 6.8 and 6.13, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
Section 6.6. 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 6.7. Compensation and Reimbursement
The Company agrees
(a) 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);
(b) 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;
(c) 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; and
(d) The Trustee shall have, and is hereby granted, a first
priority lien on all monies, securities and collateral (other than monies held
in trust by the Trustee for the purpose of paying the principal, premium, if
any, and interest on any specific Securities) held by or on behalf of the
Trustee pursuant to this Indenture for payment or reimbursement to the Trustee
of its fees, expenses and any other monies payable to it hereunder.
Section 6.8. Disqualification; Conflicting Interest
(a) If the Trustee has or shall acquire any conflicting interest
within the meaning of the Trust Indenture Act 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 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 6.8(a) 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.
Section 6.9. 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 any State
in the United States of America or in the District of Columbia. If such
corporation publishes or files 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 or
filed. 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.
Section 6.10. 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 6.11.
(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 6.11 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:
(i) the Trustee shall fail to comply with Section 6.8(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
(ii) the Trustee shall cease to be eligible under Section 6.9
and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(iii) 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, (A) the Company, by a Board Resolution, may remove
the Trustee with respect to the applicable series of Securities, or (B)
subject to Section 5.14, 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 6.11. 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 6.11, 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 6.11, 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 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 6.11. 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 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 6.11(a) or 6.11(b), 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 6.12. 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 as if such successor Trustee had itself authenticated such
Securities.
Section 6.13. Preferential Collection of Claims Against
Company
(a) Subject to Subsection 6.13(b), if the Trustee shall be or shall
become a creditor, directly or indirectly, secured or unsecured, of the
Company within three months prior to a default, as defined in Subsection
6.13(c), or subsequent to such a default, as defined in Subsection 6.13(c),
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 6.13(c):
(i) 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 three
months' 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
6.13(a)(ii), 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
(ii) 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 three 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 (1) payments made
on account of any such claim by any Person (other than the
Company) who is liable thereon, (2) the proceeds of the bona
fide sale of any such claim by the Trustee to a third
Person, and (3) 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 three
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 three 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 6.13(c),
would occur within four months; or
(D) to receive payment on any claim referred to in
paragraph 6.13(a)(ii)(B) or 6.13(a)(ii)(C), against the
release of any property held as security for such claim as
provided in paragraph 6.13(a)(ii)(B) or 6.13(a)(ii)(C), as
the case may be, to the extent of the fair value of such
property.
For the purposes of paragraphs 6.13(a)(ii)(B), 6.13(a)(ii)(C),
and 6.13(a)(ii)(D), property substituted after the beginning of such three
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 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 represented 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 (1) 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 (2) 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 three 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 three
months' period, it shall be subject to the provisions of this Subsection if
and only if the following conditions exist:
(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 three
months' period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
In any case commenced under the Bankruptcy Act of July 1, 1898,
or any amendment thereto, enacted prior to November 6, 1978, all references to
periods of three months shall be deemed to be references to periods of four
months.
(b) There shall be excluded from the operation of Subsection
6.13(a) a creditor relationship arising from:
(i) 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;
(ii) 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;
(iii) 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;
(iv) 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
6.13(c);
(v) 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
(vi) the acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper, as defined in
Subsection 6.13(c).
(c) For the purposes of this Section only:
(i) 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;
(ii) the term "other indenture securities" means securities
upon which the Company is an obligor outstanding under any other
indenture (A) under which the Trustee is also trustee, (B) which
contains provisions substantially similar to the provisions of this
Section, and (C) under which a default exists at the time of the
apportionment of the funds and property held in such special account;
(iii) 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;
(iv) 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;
(v) the term "Company" means any obligor upon the
Securities; and
(vi) the term "Federal Bankruptcy Act" means the Bankruptcy
Act or Title 11 of the United States Code.
Section 6.14. 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 3.6, 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
paper or any further act on the part of the Trustee or such 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 6.7.
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:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
SUNTRUST BANK, ATLANTA,
As Trustee,
By
----------------------------------
as Authenticating Agent
By
----------------------------------
Authorized Officer
ARTICLE 7
Holders' List and Reports by Trustee and Company
Section 7.1. 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 7.2. 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 7.1 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 7.1 upon receipt of a new list so furnished.
(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
7.2(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
7.2(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 7.2(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
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 7.2(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 7.2(b).
Section 7.3. Reports by Trustee
(a) If required under Section 313(a) of the Trust Indenture Act,
within 60 days after April 1 of each year commencing with the year 1999, so
long as any of the Securities are outstanding, the Trustee shall transmit by
mail to all Holders, as provided in subsection 7.3(c), a brief report dated as
of such April 1 with respect to any of the following events which may have
occurred within the previous 12 months (but if no such event has occurred
within such period no report need be transmitted):
(i) any change to its eligibility under Section 6.9 or the
creation of or any material change to its qualifications under Section
6.8;
(ii) 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, except that the
Trustee shall not be required (but may elect) to report such advances
if such advances so remaining unpaid aggregate not more than one-half
of one percent of the principal amount of the Securities Outstanding
of such series on the date of such report;
(iii) any change to the amount, interest rate and maturity date
of all other indebtedness owing by the Company (or by any other
obligor on the Securities) to 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 6.13(b)(ii),(iii),(iv) or (vi);
(iv) any change to the property and funds, if any, physically
in the possession of the Trustee as such on the date of such report;
(v) any additional issue of Securities which the Trustee has
not previously reported; and
(vi) 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 6.2.
(b) The Trustee shall transmit by mail to all Holders, as provided
in subsection 7.3(c), 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 7.3(a) (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 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) Reports pursuant to this Section shall be transmitted by mail:
(i) to all Holders of Securities, as the names and addresses
of such Holders appear in the Security Register as of a date not more
than fifteen days prior to the mailing thereof;
(ii) to such holders of Securities of any series as have,
within two years preceding such transmission, filed their names and
addresses with the Trustee for such series for that purpose; and
(iii) except in the case of reports pursuant to subsection
7.3(b), to all Holders of Securities whose names and addresses have
been received by the Trustee pursuant to Section 7.1.
(d) 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 7.4. Reports by Company
The Company shall:
(a) 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;
(b) 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
(c) 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 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 7.2(a) such
summaries of any information, documents and reports required to be filed by
the Company pursuant to paragraphs 7.4(a) and 7.4(b) as may be required by
rules and regulations prescribed from time to time by the Commission.
ARTICLE 8
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.1. Company May Consolidate, Etc., Only on Certain
Terms
The Company shall not consolidate with or merge into any other
Person or convey, transfer or lease 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:
(a) in case the Company shall consolidate with or merge into
another Person 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;
(b) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company or a
Subsidiary as a result of such transaction as having been incurred by the
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;
(c) 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
(d) 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 8.2. Successor Corporation Substituted
Upon any consolidation by the Company with or merger by the
Company into any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 8.1, 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 Person had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE 9
Supplemental Indentures
Section 9.1. 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:
(a) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of the
Company herein and in the Securities; or
(b) 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
(c) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such additional Events of
Default are to be for the benefit of less than all series of Securities,
stating that such additional Events of Default are expressly being included
solely for the benefit of the relevant series) or to surrender any right or
power herein conferred upon the Company; or
(d) 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 permit or facilitate the issuance of
Securities in uncertificated form; or
(e) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
such addition, change or elimination (A) shall neither (i) apply to Securities
of any series created prior to the execution of such supplemental indenture and
entitled to the benefit of such provision nor (ii) modify the rights of the
Holder of such Securities with respect to such provision or (B) shall become
effective only when there is no such Security Outstanding; or
(f) to secure the Securities pursuant to the requirements of
Sections 8.1(c) or 10.7 or otherwise; or
(g) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 3.1; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series 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
6.11(b); or
(i) 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 9.2. 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,
(a) 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 5.2,
or change any Place of Payment where, or the coin or currency in which, any
Security or any premium 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
(b) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
(c) modify any of the provisions of this Section, Section 5.13 or
Section 10.10, 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 10.10, or the deletion of this
proviso, in accordance with the requirements of Sections 6.11(b) and 9.1(h).
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 9.3. Execution of Supplemental Indentures
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 6.1) 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 9.4. 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 9.5. 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 9.6. 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 10
Covenants
Section 10.1. Payment of Principal, Premium and 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.
Section 10.2. 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 and the Holders 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 and surrenders of Securities of that
series and 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 and the Holders of any such designation or rescission and of any
change in the location of any such other office or agency.
Section 10.3. 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 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:
(a) 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;
(b) 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
(c) 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 4.2 or 10.8) 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 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 10.4. 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 10.5. 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,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings.
Section 10.6. Maintenance of Finance Agreement
The Company covenants that:
(a) it will observe and perform in all material respects all
covenants or agreements of the Company contained in the Finance Agreement; and
(b) with the consent of Holders of not less than a majority in
principal amount of the 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 each nationally recognized securities 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 10.7. 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) 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 10.7(a)(ii) or
10.7(a)(iii) 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 foregoing
paragraphs 10.7(a) and 10.7(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 or sales of chattel paper generated in the ordinary course
of business; or
(g) Any lien, mortgage, pledge, security agreement, interest or
encumbrance securing indebtedness resulting from any financing transaction
entered into in the ordinary course of the Company's business involving the
sale of Company receivables consisting of loan and/or lease obligations
owed to the Company to any Subsidiary of the Company or any special purpose
entity formed by the Company formed for the sole purpose of effecting such
financing and which applies only to such Subsidiary or such special purpose
entity and its assets.
Notwithstanding the foregoing provisions of this Section 10.7,
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 10.8. Defeasance of Certain Obligations
Unless otherwise specified pursuant to Section 3.1 with respect
to Securities of any series, the Company may omit to comply, on or after the
date the conditions set forth in subsections (a) to (f) of this Section 10.8
are satisfied, with any term, provision or condition set forth in Section 10.6
and Section 10.7, with respect to the Securities of such series, and with any
term, provision or condition set forth in any additional negative or
restrictive covenant of the Company (other than those contained in this
Indenture) applicable to the Securities of such series (hereafter called
"Covenant Defeasance") as specified pursuant to Section 3.1(q)), if
(a) With reference to this Section 10.8, the Company has
irrevocably deposited or caused to be irrevocably deposited with the Trustee
as trust funds in trust for the purpose of making the following payments,
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
10.8(a)(iii)(A) or 10.8(a)(iii)(B) 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, and which shall be applied by
the Trustee for such purposes (A) the principal of and any premium and each
instalment of principal and any premium and interest on the Outstanding
Securities of that series on the Stated Maturity of such principal or
installment of principal or interest or the Redemption Date, as the case may
be, 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 each in accordance with the terms of the Indenture and of such
Securities;
(b) Such Covenant Defeasance shall not cause the Trustee with
respect to the Securities of that series to have a conflicting interest as
defined in Section 6.8 and for purposes of the Trust Indenture Act with
respect to the Securities of any series;
(c) Such Covenant Defeasance 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;
(d) 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;
(e) The Company has delivered to the Trustee an Opinion of Counsel
stating that (i) Holders of the Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of such
deposit and Covenant Defeasance 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 Covenant Defeasance had not occurred; (ii)
such Covenant Defeasance would not cause any outstanding Security of such
series then listed on any nationally recognized securities exchange to be
delisted as a result thereof; and (iii) 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
(f) 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 10.9. Certificate of Officers of the Company
On or before the last day of March of each year beginning with
the year 1999, the Company will file with the Trustee an Officers' Certificate
stating whether or not to the best knowledge of the signers thereof the
Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture, and, if the Company shall be in
default, specifying all such defaults and the nature and status thereof of
which they may have knowledge. For purposes of this paragraph, any such
default shall be determined without regard to any period of grace or
requirement of notice provided in this Indenture.
Section 10.10. Waiver of Certain Covenants
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in Sections 10.4 to 10.7,
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 11
Redemption of Securities
Section 11.1. 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 3.1 for Securities of any
series) in accordance with this Article.
Section 11.2. 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.
Section 11.3. 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 11.4. 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:
(a) the Redemption Date,
(b) the Redemption Price,
(c) 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,
(d) 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,
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(f) 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 and
shall be irrevocable. The notice of redemption mailed in the manner herein
provided shall be conclusively presumed to have been duly given whether or not
the Holder receives such notice. In any case, failure to give such notice by
mail or any defect in the notice to the Holder of any Security shall not
affect the validity of the proceeding for the redemption of any other Security.
Section 11.5. 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 10.3) 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 11.6. 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 Predecessor Securities, registered as such at the close of business on
the relevant Record Dates according to their terms and the provisions of
Section 3.7.
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 11.7. 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 to the Holder,
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 12
Sinking Funds
Section 12.1. Applicability of Article
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 3.1 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 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 12.2. 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 12.2. Satisfaction of Sinking Fund Payments with
Securities
The Company (a) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (b) 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 the Securities to be so credited have not been previously
so credited. The Securities to be so credited shall be received and credited
for such purpose by the Trustee at the Redemption Price, as specified in the
Securities to be so redeemed, for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 12.3. 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 such Securities, 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 12.2 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 11.3 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 11.4. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in
the manner stated in Sections 11.5, 11.6 and 11.7.
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.
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
-----------------------------------
Title:
-------------------------------
By
-----------------------------------
Title:
-------------------------------
SUNTRUST BANK, ATLANTA, as Trustee
By
-----------------------------------
Title:
-------------------------------
By
-----------------------------------
Title:
-------------------------------
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the __ day of July, 1998, before me personally came
____________ and __________ to me known, who, being by me duly sworn, did
depose and say that they are _________ and Vice President and Chief Financial
Officer, respectively, of PITNEY BOWES CREDIT CORPORATION, one of the
corporations described in and which executed the foregoing instrument; that
each knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that each signed their names
thereto by like authority.
STATE OF GEORGIA )
) ss.:
COUNTY OF FULTON )
On the day of , 1998, before me personally came
and , to me known, who, being by me duly sworn,
did depose and say that they are the __________ and __________, respectively,
of SunTrust Bank, Atlanta, one of the corporations described in and which
executed the foregoing instrument; that each knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that each signed their names thereto by like authority.
Exhibit A
---------
FORM OF FACE OF SECURITY
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, 55 WATER STREET, NEW YORK, NEW
YORK (THE "U.S. DEPOSITARY"), TO PITNEY BOWES INC. OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF THE U.S. DEPOSITARY (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE U.S. DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
[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.]
[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), insert--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 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.
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:
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.
Date of Authentication:
SUNTRUST BANK, ATLANTA,
as Trustee
By
-----------------------------------
Authorized Officer
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 ____________ (herein called
the "Indenture"), between the Company and SunTrust Bank, Atlanta, 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 ............... 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 Redemption Otherwise
Operation Than Through
of the 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.]
[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 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.
As provided in and subject to the provisions of the Indenture,
the Holder of this Security shall not have the right to institute any
proceeding with respect to the Indenture or for the appointment of a receiver
or trustee or for any other remedy thereunder, unless such Holder shall have
previously given the Trustee written notice of a continuing Event of Default
with respect to the Securities of this series, the Holders of not less than
25% in principal amount of the Securities of this series at the time
Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity, and the Trustee shall not have received from the
Holders of a majority in principal amount of Securities of this series at the
time Outstanding a direction inconsistent with such request, and shall have
failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any
payment of principal hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
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 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.
Exhibit 5.1
DAVIS POLK & WARDWELL
450 Lexington Avenue
New York, N.Y. 10017
___________, 1998
Pitney Bowes Credit Corporation
27 Waterview Drive
Shelton, Connecticut 06484-8000
Ladies and Gentlemen:
We have acted as special counsel to you, Pitney Bowes Credit
Corporation (the "Company"), in connection with the registration of the
Company's debt securities (the "Securities") from which the Company will
receive up to an aggregate of $750,000,000, for issuance from time to time
pursuant to Rule 415 of the Securities Act of 1933, as amended (the
"Securities Act"). We advise that in our opinion the Company has full power
and authority under the laws of Delaware, the State of the Company's
incorporation, and under the Company's Restated Certificate of Incorporation
to borrow the money and to contract the indebtedness to be evidenced by the
said Securities.
It is our further opinion that when the Indenture, between the
Company and SunTrust Bank, Atlanta, as Trustee (the "Indenture"), has been
duly authorized, executed and delivered and the Securities, as provided in the
Indenture, have been duly authorized, executed and authenticated, issued and
paid for, the Securities will be valid and legally binding obligations of the
Company in accordance with, and subject to, the terms thereof and of the
Indenture.
We hereby consent to the use of the foregoing opinion as
Exhibit 5.1 of the Company's Registration Statement filed with the United
States Securities and Exchange Commission under the Securities Act, with
respect to the above mentioned Securities and to the use of our name in such
Registration Statement and in the related Prospectus Supplement(s) under the
heading "Validity of Debt Securities."
Very truly yours,
/s/ Davis Polk & Wardwell
Exhibit 12
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(in thousands of dollars)
<TABLE>
<CAPTION>
Three Months Ended
Years Ended December 31, March 31,
------------------------------------------------------------------ ------------------------
1997 1996 1995 1994 1993 1998 1997
---------- ---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
Income before income taxes.... $277,116 $266,089 $231,334 $218,913 $189,960 $ 66,356 $ 66,339
------- ------- ------- ------- ------- ------- -------
Fixed charges:
Interest on debt............ 197,234 201,543 202,090 151,239 137,372 40,399 49,895
One-third of rent expense... 1,686 1,530 1,519 1,463 1,575 324 340
------- ------- ------- ------- ------- ------- -------
Total fixed charges........... 198,920 203,073 203,609 152,702 138,947 40,723 50,235
------- ------- ------- ------- ------- ------- -------
Earnings before fixed charges. $476,036 $469,162 $434,943 $371,615 $328,907 $107,079 $116,574
======= ======= ======= ======= ======= ======= =======
Ratio of earnings to fixed
charges(1).................. 2.39x 2.31x 2.14x 2.43x 2.37x 2.63x 2.32x
======= ======= ======= ======= ======= ======= =======
- -----------
(1) The ratio of earnings to fixed charges is computed by dividing earnings
before fixed charges by fixed charges. Fixed charges consist of interest
on debt and one-third of rent expense as representative of the interest
portion.
</TABLE>
Exhibit 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the
Prospectus constituting part of this Registration Statement on Form S-3 of our
report dated January 26, 1998 appearing on page 13 of Pitney Bowes Credit
Corporation's Annual Report on Form 10-K for the year ended December 31, 1997.
We also consent to the reference to us under the heading "Experts" in such
Prospectus.
PricewaterhouseCoopers LLP
Stamford, Connecticut
July 15 , 1998
Exhibit 23(b)
CONSENT OF CHRISTIAN D. HUGHES, ESQ.
________, 1998
Pitney Bowes Credit Corporation
27 Waterview Drive
Shelton, Connecticut 06484-8000
Re: Pitney Bowes Credit Corporation
$750,000,000 Aggregate Principal
Amount of Debt Securities
--------------------------------
Ladies and Gentlemen:
I hereby consent to the use of my 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 I am an "Expert" for purposes of the
Securities Act of 1933, as amended.
Very truly yours,
Christian D. Hughes, Esq.
Delayed Offering
Registration No. ________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
___________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2) X
___________________
SUNTRUST BANK, ATLANTA
(Exact name of trustee as specified in its charter)
58-0466330
(I.R.S. employer identification no.)
25 Park Place, N.E.
Atlanta, Georgia 30303
(Address of principal executive offices) (Zip Code)
___________________
David M. Kaye
SunTrust Bank, Atlanta
58 Edgewood Avenue, N.E.
Room 400A
Atlanta, Georgia 30303
(404) 588-8060
(Name, address and telephone number of agent for service)
Pitney Bowes Credit Corporation
(Exact name of obligor as specified in its charter)
Delaware 06-0946476
(State or other jurisdiction of (IRS employer
incorporation or organization) identification no.)
27 Waterview Drive
Shelton, Connecticut 06484
(Address of principal executive offices) (Zip Code)
_________________
Debt Securities (1)
(Title of the indenture securities)
(1) Applicable to all securities registered pursuant to the delayed offering
registration statement.
______________________________________________________________________
1. General information.
(a) Name and address of each examining or supervising authority
to which it is subject.
Department of Banking and Finance
State of Georgia
Atlanta, Georgia
Federal Reserve Bank of Atlanta
104 Marietta Street, N.W.
Atlanta, Georgia
Federal Deposit Insurance Corporation
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with obligor.
None.
3. Voting Securities of the Trustee.
Not applicable.
4. Trusteeships under Other Indentures.
Not applicable.
5. Interlocking Directorates and Similar Relationships with the Obligor or
Underwriters.
Not applicable.
6. Voting Securities of the Trustee Owned by the Obligor or its Officials.
Not applicable.
7. Voting Securities of the Trustee Owned by Underwriters or their
Officials.
Not applicable.
8. Securities of the Obligor Owned or Held by the Trustee.
Not applicable.
9. Securities of Underwriters Owned or held by the Trustee.
Not applicable.
10. Ownership or Holdings by the Trustee of Voting Securities of Certain
Affiliates or Security Holders of the Obligor.
Not applicable.
11. Ownership or Holdings by the Trustee of any Securities or a Person Owning
50 Percent or More of the Voting Securities of the Obligor.
Not applicable.
12. Indebtedness of the Obligor to the Trustee.
Not applicable.
13. Defaults by the Obligor.
(a) Whether there is or has been a default with respect to the securities
under this indenture.
There is not and has not been any such default.
(b) If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in
any other securities, of the obligor are outstanding, or is trustee
for more than one outstanding series of securities under the
indenture, state whether there has been a default under any such
indenture or series.
There has not been any such default.
14. Affiliations with the Underwriters.
Not applicable.
15. Foreign Trustee.
Not applicable.
16. List of Exhibits.
The additional exhibits listed below are filed herewith; exhibits, if
any, identified in parentheses are on file with the Commission and are
incorporated herein by reference as exhibits hereto pursuant to Rule 7a-29
under the Trust Indenture Act of 1939, as amended, and Rule 24 of the
Commission's Rules of Practice.
Exhibit
Number
- -------
1 A copy of the Articles of Amendment and Restated Articles of
Incorporation as now in effect. (Exhibit 1 to Form T-1, Registration
No. 333-25463.)
2 A copy of the certificate of authority of the Trustee to commence
business. (Included in Exhibit 1.)
3 A copy of the authorization of the Trustee to exercise trust powers.
(Included in Exhibit 1.)
4 By-laws of the Trustee. (Included in Exhibit 4 to Form T-1,
Registration No. 333-25463.)
5 Not applicable.
6 Consent of the trustee required by Section 321(b) of the Trust
Indenture Act of 1939, as amended.
7 Latest report of condition of the Trustee published pursuant
to law or the requirements of its supervising or examining authority
as of the close of business on March 31, 1998.
8 Not applicable.
9 Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
trustee, SunTrust Bank, Atlanta, a banking corporation organized and existing
under the laws of the State of Georgia, has duly caused this statement of
eligibility and qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of Atlanta and the State of
Georgia, on the ____ day of July, 1998
SunTrust Bank, Atlanta
By: /s/ David M. Kaye
---------------------
Group Vice President
EXHIBIT 6 TO FORM T-1
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939 in connection with the proposed issuance of Pitney Bowes Inc. Debt
Securities to be issued under the Indenture, SunTrust Bank, Atlanta hereby
consents that reports of examinations by Federal, State, Territorial or
District authorities may be furnished by such authorities to the Securities
and Exchange Commission upon request therefor.
SUNTRUST BANK, ATLANTA
By:/s/ David M. Kaye
---------------------
Group Vice President
EXHIBIT 7 FORM T-1
LATEST REPORT OF CONDITION
OF
SUNTRUST BANK, ATLANTA
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
SUNTRUST BANK ATLANTA Call Date: 03/31/98 State #: 130330 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert #: 00867 RC-1
ATLANTA, GA 30302 Transit #: 6100010-4
</TABLE>
----------
11
----------
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December 31, 1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
<TABLE>
<CAPTION>
Schedule RC -- Balance Sheet
ASSETS Dollar Amounts in Thousands
<S> <C> <C> <C> <C> <C>
1. Cash and balances due from depositary institutions (from Schedule RC-A): RCFD
a. Noninterest-bearing balances and currency and coins(1) . . . . . . 0081 867,073 1.a
b. Interest-bearing balances(2) . . . . . . . . . . . . . . . . . . . 0071 4,574 1.b
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A) . . . . 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B column D). . . . 1773 3,322,133 2.b
3. Federal funds sold and securities purchased under agreements to resell. 1350 796,683 3.
4. Loans and lease financing receivables: RCFD
a. Loans and losses, net of unearned income (from Schedule RC-C). . . 2122 11,210,585 4.a
b. LESS: Allowances for loan and lease losses . . . . . . . . . . . . 3123 134,515 4.b
c. LESS: Allocated transfer risk reserve. . . . . . . . . . . . . . . 3128 0 4.c
RCFD
d. Loans and leases, net of unearned income,
allowance, and reserve (Item 4.a minus 4.b and 4.c). . . . . . . . 2125 11,076,070 4.d
5. Trading assets (from Schedule RC-D) . . . . . . . . . . . . . . . . . . 3545 16,724 5.
6. Premises and fixed assets (including capitalized leases). . . . . . . . 2145 101,431 6.
7. Other real estate owned (from Schedule RC-M). . . . . . . . . . . . . . 2150 1,387 7.
8. Investments in unconsolidated subsidiaries and associated companies
(from Schedule RC-M). . . . . . . . . . . . . . . . . . . . . . . . . . 2130 12,664 8.
9. Customers' liability to this bank on acceptance outstanding . . . . . . 2155 350,591 9.
10. Intangible assets (from Schedule RC-M). . . . . . . . . . . . . . . . . 2143 16,265 10.
11. Other assets (from Schedule RC-F) . . . . . . . . . . . . . . . . . . . 2180 149,944 11.
12. Total assets (sum of items 1 through 11). . . . . . . . . . . . . . . . 2170 16,715,539 12.
- ------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
</TABLE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
SUNTRUST BANK ATLANTA Call Date: 03/31/98 State #: 130330 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert #: 00867 RC-1
ATLANTA, GA 30302 Transit #: 6100010-4
</TABLE>
----------
12
----------
<TABLE>
<CAPTION>
Schedule RC -- Balance Sheet
LIABILITIES Dollar Amounts in Thousands
<S> <C> <C> <C> <C>
13. Deposits: RCFD
a. In domestic offices (sum of totals of columns A and C from Schedule
RC-E, part I). . . . . . . . . . . . . . . . . . . . . . . . . . . RCON 2200 7,190,048 13.a
(1) Noninterest-bearing(1). . . . . . . . . . . . . . . . . . . . 6631 2,439,599 13.a.1
(2) Interest-bearing. . . . . . . . . . . . . . . . . . . . . . . 6636 4,750,449 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from RCON
Schedule RC-E, part II). . . . . . . . . . . . . . . . . . . . . . RCFN 2200 855,056 13.b
(1) Noninterest-bearing . . . . . . . . . . . . . . . . . . . . . 6631 0 13.b.1
(2) Interest-bearing. . . . . . . . . . . . . . . . . . . . . . . 6636 855,056 13.b.2
14. Federal funds purchased and securities sold under agreements to RCFD
repurchase. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2800 3,858,832 14
RCON
15. a. Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . 2840 0 15.a
RCFD
b. Trading liabilities (from Schedule RC-D) . . . . . . . . . . . . . 3548 3 15.b
16. Other borrowed money (includes mortgage indebtedness and obligations
under capitalized leases):
a. With a remaining maturity of one year or less. . . . . . . . . . . 2332 564,410 16.a
b. With a remaining maturity of more than one year through three years A547 2,530 16.b
c. With a remaining maturity of more than three years . . . . . . . . A546 0 16.c
17. Not applicable
18. Bank's liability on acceptances executed and outstanding. . . . . . . . 2920 350,591 18
19. Subordinated notes and debentures(2). . . . . . . . . . . . . . . . . . 3200 250,000 19
20. Other liabilities (from Schedule RC-G). . . . . . . . . . . . . . . . . 2930 1,232,470 20
21. Total liabilities (sum of items 13 through 20). . . . . . . . . . . . . 2948 14,303,940 21
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus . . . . . . . . . . . . . 3638 0 23
24. Common stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3230 21,601 24
25. Surplus (exclude all surplus related to preferred stock). . . . . . . . 3839 573,406 25
26. a. Undivided profits and capital reserves . . . . . . . . . . . . . . 3632 611,847 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8434 1,204,745 26.b
27. Cumulative foreign currency translation adjustments . . . . . . . . . . 3284 0 27
28. Total equity capital (sum of items 23 through 27) . . . . . . . . . . . 3210 2,411,599 28
29. Total liabilities and equity capital (sum of items 21 and 28) . . . . . 3300 16,715,539 29
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the RCFD Number
statement below that best describes the most ---- ------
comprehensive level of auditing work performed for
the bank by independent external auditors as of
any date during 1997. . . . . . . . . . . . . . . . . . . . 6724 2 M.1
1 = Independent audit of the bank conducted in accordance with
generally accepted auditing standards by a certified public
accounting form which submits a report on the bank
2 = Independent audit of the bank's parent holding company
conducted in accordance with generally accepted auditing
standards by a certified public accounting firm which
submits a report on the consolidated holding company (but
not on the bank separately)
3 = Directors' examination of the bank conducted in accordance
with generally accepted auditing standards by a certified
public accounting firm (may be required by state chartering
authority)
4 = Directors' examination of the bank performed by other
external auditors (may be required by state chartering
authority)
5 = Review of the bank's financial statements by external
auditors
6 = Compilation of the bank's financial statements by external
auditors
7 = Other audit procedures (excluding preparation work)
8 = No external audit work<PAGE>
- ------------
(1) Includes total demand deposits and noninterest-bearing time and
savings deposits.
(2) Includes limited-life preferred stock and related surplus.
