SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549-1004
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FORM 8-K
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CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (Date of Earliest Event Reported):
August 30, 1999
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Commission file number 0-13497
PITNEY BOWES CREDIT CORPORATION
Incorporated pursuant to the Laws of the State of Delaware
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Internal Revenue Service -- Employer Identification No. 06-0946476
27 Waterview Drive, Shelton, CT 06484-4361
(203) 922-4000
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Item 5. Other Events.
On August 30, 1999, Pitney Bowes Credit Corporation, a Delaware
corporation (the "Registrant") established a medium-term note program for the
issuance from time to time of up to $500 million aggregated principal amount of
Medium-Term Notes, Series D (the "Notes").
The Registrant expects to use the net proceeds from any offering of Notes
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
Notes will be dependent on market conditions and the availability and cost of
other funds to the Registrant.
The Distribution Agreement dated August 30, 1999 in connection with the
medium-term note program is attached hereto as Exhibit 1. The form of the Notes
to be issued by the Registrant are attached hereto as Exhibits 2.a, 2.b, 2.c
and 2.d. The Indenture dated as of July 31, 1999 between the Registrant and
SunTrust Bank, Atlanta, as Trustee, is attached hereto as Exhibit 3.
Item 7. Exhibits.
(c) Exhibits
Exhibit Number Description of Exhibit
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1 Distribution Agreement dated August 30, 1999, among Pitney
Bowes Credit Corporation, Salomon Smith Barney Inc., Banc
of America Securities LLC, Bear, Stearns & Co. Inc. and J.P.
Morgan Securities Inc.
2.a Form of Medium Term Note, Series D (Global Fixed Rate)
2.b Form of Medium Term Note, Series D (Global Floating Rate)
2.c Form of Medium Term Note, Series D (Certificated Fixed
Rate)
2.d Form of Medium Term Note, Series D (Certificated Floating
Rate)
3 Indenture dated as of July 31, 1999, between Pitney
Bowes Credit Corporation and SunTrust Bank, Atlanta, as
Trustee
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
PITNEY BOWES CREDIT CORPORATION
By /s/ NANCY E. COOPER
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Nancy E. Cooper
Vice President, Finance and
Chief Financial Officer
(Principal Financial Officer)
Dated: September 2, 1999
By /s/ R. JEFFREY MACARTNEY
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R. Jeffrey Macartney
Controller
(Principal Accounting Officer)
Dated: September 2, 1999
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EXHIBIT 1
PITNEY BOWES CREDIT CORPORATION
$500,000,000
Medium-Term Notes, Series D
Distribution Agreement
August 30, 1999
Salomon Smith Barney Inc.
Seven World Trade Center
New York, New York 10048
Banc of America Securities LLC
100 North Tryon Street
Charlotte, North Carolina 28255
Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Ladies and Gentlemen:
Pitney Bowes Credit Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell from time to time its Medium-Term Notes, Series D
(the "Securities") in an aggregate principal amount up to $500,000,000 and
agrees with each of you (individually, an "Agent" and collectively, the
"Agents") as set forth in this Agreement.
Subject to the terms and conditions stated herein and to the reservation
by the Company of the right to sell Securities directly on its own behalf or
through other agents, dealers or underwriters as set forth in Section 2(a), the
Company hereby (i) appoints each Agent as an agent of the Company for the
purpose of soliciting and receiving offers to purchase Securities from the
Company pursuant to Section 2(a) hereof and (ii) agrees that, except as
otherwise contemplated herein, whenever it determines to
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sell Securities directly to any Agent as principal, it will enter into a
separate agreement (each, a "Terms Agreement"), substantially in the form of
Annex I hereto, relating to such sale in accordance with Section 2(b) hereof.
The Distribution Agreement shall not be construed to create either an
obligation on the part of the Company to sell any Securities or an obligation
of any of the Agents to purchase Securities as principal.
The Securities will be issued under an indenture, dated as of July 31,
1999 (the "Indenture"), between the Company and SunTrust Bank, Atlanta, as
Trustee (the "Trustee"). The Securities shall have the maturity ranges,
interest rates, if any, redemption provisions and other terms set forth in the
Prospectus referred to below as it may be amended or supplemented from time to
time. The Securities will be issued, and the terms and rights thereof
established, from time to time by the Company in accordance with the Indenture.
1. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, each Agent that:
(a) A registration statement on Form S-3 (File No. 333-59181) in respect
of $750,000,000 aggregate principal amount of debt securities of the Company,
including the Securities (together, the "Registered Securities"), has been
filed with the Securities and Exchange Commission (the "Commission") in the
form heretofore delivered or to be delivered to such Agent, excluding exhibits
to such registration statement but including all documents incorporated by
reference in the prospectus included in the registration statement, and has
been declared effective by the Commission in such form; no other document with
respect to such registration statement or document incorporated by reference
therein has heretofore been filed or transmitted for filing with the Commission
(other than the prospectuses filed pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Act, each in the form heretofore
delivered to the Agents); and no stop order suspending the effectiveness of
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 such registration statement or filed with the Commission pursuant
to Rule 424(a) of the rules and regulations of the Commission under the Act is
hereinafter called a "Preliminary Prospectus"; the various parts of such
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registration statement, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in the registration
statement at the time such part of the registration statement became effective
but excluding Form T-1, each as amended at the time such part of the
registration statement became effective, is hereinafter collectively called the
"Registration Statement"; the prospectus (including, if applicable, any
prospectus supple ment) relating to the Securities, in the form in which it has
most recently been filed or transmitted for filing with the Commission on or
prior to the date of this Agreement, is hereinafter called the "Prospectus";
any reference herein to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to the applicable form under the Securities Act of 1933, as amended
(the "Act"), as of the date of such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus, including any supplement to the
Prospectus that sets forth only the terms of a particular issue of the
Securities (a "Pricing Supplement"), shall be deemed to refer to and include
any documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and incorporated therein by reference; any
reference to any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed pursuant to Section
13(a) or 15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration Statement; and
any reference to the Prospectus as amended or supplemented shall be deemed to
refer to and include the Prospectus as amended or supplemented (including by
the applicable Pricing Supplement filed in accordance with Section 4(a) hereof)
in relation to Securities to be sold pursuant to this Agreement, in the form to
be filed or transmitted for filing with the Commission pursuant to Rule 424(b)
under the Act and in accordance with Section 4(a) 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
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to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed and
incorporated by reference in the Prospectus, or any further amendment or
supplement thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by any Agent expressly for use
in the Prospectus as amended or supplemented to relate to a particular issuance
of Securities;
(c) The Registration Statement and the Prospectus conform, and any further
amendments or supplements to the Registration Statement or the Prospectus will
conform, in all material respects to the requirements of the Act and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the rules
and regulations of the Commission thereunder and do not and will not, as of the
applicable effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus and any
amendment or supplement thereto, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Company by any Agent expressly for use in the Prospectus as amended or
supplemented to relate to a particular issuance of Securities;
(d) Neither the Company nor any of its subsid iaries has sustained since
the date of the latest audited financial statements included or incorporated by
reference in the Prospectus any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Prospectus; and,
since the respective dates as of which information is given in the Registration
Statement and the
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Prospectus, there has not been any change in the capital stock or long-term
debt of the Company or any of its subsidiaries, or any material adverse change,
or any development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and
non-assessable and all of such shares are owned directly or indirectly by
Pitney Bowes Inc., a Delaware corporation ("Pitney Bowes"), free and clear of
all liens, encumbrances, security interests or claims;
(g) This Agreement and any applicable Terms Agreement have been duly
authorized, executed and delivered by the Company;
(h) The Securities have been duly authorized, and, when issued and
delivered pursuant to this Agreement and any Terms Agreement, will have been
duly executed, authenticated, issued and delivered and will constitute valid
and legally binding obligations of the Company entitled to the benefits
provided by the Indenture, which will be substantially in the form filed as an
exhibit to the Registration Statement; the Indenture has been duly authorized
and duly qualified under the Trust Indenture Act and constitutes a valid and
legally binding instrument, enforceable in accordance with its terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to general
equity principles; and the Indenture conforms and the Securities of any
particular issuance of Securities will conform to the descriptions thereof
contained in the Prospectus as amended or supplemented to relate to such
issuance of Securities;
(i) The issue and sale of the Securities, the compliance by the Company
with all of the provisions of the
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Securities, the Indenture, this Agreement and any Terms Agreement, and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which Pitney Bowes,
the Company or any of its material subsidiaries is a party or by which Pitney
Bowes, the Company or any of its material subsidiaries is bound or to which any
of the property or assets of Pitney Bowes, the Company or any of its material
subsidiaries is subject, nor will such action result in any violation of the
provisions of the Certificate of Incorporation, as amended, or the By-Laws of
the Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its
material subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any court or
governmental agency or body is required for the solicitation of offers to
purchase Securities and the issue and sale of the Securities or the
consummation by the Company of the other transactions contemplated by this
Agreement, any Terms Agreement or the Indenture, except such as have been, or
will have been prior to the Commencement Date (as defined in Section 3 hereof),
obtained under the Act or the Trust Indenture Act and such consents, approvals,
authorizations, orders, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the solicitation by
such Agent of offers to purchase Securities from the Company and with purchases
of Securities by such Agent as principal, as the case may be, in each case in
the manner contemplated hereby;
(j) Neither the Company nor any of its material subsidiaries is in
violation of its Certificate of Incorporation or By-Laws or in default in the
performance or observance of any material obligation, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it or any of
its properties may be bound;
(k) The statements set forth in the Prospectus under the captions
"Description of Debt Securities" and "Description of Notes We May Offer",
insofar as they purport to constitute a summary of the terms of the Securities,
and under the captions "United States Taxation", "Supplemental Plan of
Distribution" and "Plan of Distribution", insofar as
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they purport to describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair;
(l) Other than as set forth or contemplated in the Prospectus, there are
no legal or governmental proceed ings pending to which the Company or any of
its subsidiaries is a party or to which any property of the Company or any of
its subsidiaries is subject, which, if determined adversely to the Company or
any of its subsidiaries, would individually or in the aggregate be reasonably
expected to have a material adverse effect on the current consolidated
financial position, stockholders' equity, results of operations or prospects of
the Company and its subsidiaries; and, to the best of the Company's knowledge,
no such pro ceedings are threatened or contemplated by governmental authorities
or threatened by others;
(m) The Company is not, and after giving effect to each offering and sale
of the Securities will not be, an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(n) Neither the Company nor any of its affiliates does business with the
government of Cuba or with any person or affiliate located in Cuba within the
meaning of Sec tion 517.075, Florida Statutes;
(o) Immediately after any sale of Securities by the Company hereunder or
under any Terms Agreement, the aggregate amount of Securities which shall have
been issued and sold by the Company hereunder or under any Terms Agreement and
of any debt securities of the Company (other than such Securities) that shall
have been issued and sold pursuant to the Registration Statement will not
exceed the amount of debt securities registered under the Registration
Statement; and
(p) PricewaterhouseCoopers LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
2. Agreement of Agents; Commissions; Solicitations.
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(a) On the basis of the representations and warranties herein contained,
and subject to the terms and conditions herein set forth, each of the Agents
hereby severally and not jointly agrees, as agent of the Company, to use its
reasonable best efforts to solicit and receive offers to purchase the
Securities from the Company upon the terms and conditions set forth in the
Prospectus as amended or supplemented from time to time. The Company reserves
the right to sell, and may solicit and accept offers to purchase, (i)
Securities through any agents, dealers or underwriters other than the Agents so
long as any such sale, solicitation or purchase is on terms substantially
identical to the terms and conditions as provided herein for the Agents, (ii)
Securities directly on its own behalf, and (iii) debt securities through
private placements and, in the case of any such sale not resulting from a
solicitation made by any agent, no commission will be payable with respect to
such sale. Notwithstanding the foregoing, except as it may be subject to the
terms and conditions hereof and of any Terms Agreement, the Company may sell
debt securities with a maturity at the time of original issuance of nine months
or more in connection with a firm commitment underwriting pursuant to an
underwriting agreement that does not provide for a continuous offering of
medium-term notes. These provisions shall not limit Section 4(f) hereof or any
similar provision included in any Terms Agreement.
Procedural details relating to the issue and delivery of Securities, the
solicitation of offers to purchase Securities and the payment in each case
therefor shall be as set forth in the Administrative Procedure attached hereto
as Annex II as it may be amended from time to time by written agreement between
the Agents and the Company (the "Administrative Procedure"). The provisions of
the Administrative Procedure shall apply to all transactions contemplated
hereunder other than those made pursuant to a Terms Agreement. Each Agent and
the Company agree to per form the respective duties and obligations
specifically provided to be performed by each of them in the Administrative
Procedure. The Company will furnish to the Trustee a copy of the Administrative
Procedure as from time to time in effect.
The Company reserves the right, in its sole discretion, to instruct the
Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase the Securities. As soon as practicable, but
in any event not later than one business day in New York City, after receipt of
notice from the Company, the Agents
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will suspend solicitation of offers to purchase Securities from the Company
until such time as the Company has advised the Agents that such solicitation
may be resumed.
The Company agrees to pay each Agent a commission, at the time of
settlement of any sale of a Security by the Company as a result of a
solicitation made by such Agent, in an amount equal to the following applicable
percentage of the principal amount of such Security sold:
Commission
(percentage of
aggregate
principal amount
Range of Maturities of Securities sold)
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From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .675%
From 20 years to 30 years .750%
(b) Each sale of Securities to any Agent as principal shall be made in
accordance with the terms of this Agreement and (unless the Company and such
Agent shall otherwise agree) a Terms Agreement which will provide for the sale
of such Securities to, and the purchase thereof by, such Agent; a Terms
Agreement may also specify certain provisions relating to the reoffering of
such Securities by such Agent; the commitment of any Agent to purchase
Securities as principal, whether pursuant to any Terms Agreement or otherwise,
shall be deemed to have been made on the basis of the representations and
warranties of the Company herein contained and shall be subject to the terms
and conditions herein set forth; each Terms Agreement shall specify the
principal amount of Securities to be purchased by any Agent pursuant thereto,
the price to be paid to the Company for such Securities, any provisions
relating to rights of, and default by, underwriters acting together with such
Agent in the reoffering of the Securities and the time and date and place of
delivery of and payment for such Securities; and such Terms Agreement shall
also specify any requirements for opinions of counsel, accountants' letters
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and officers' certificates pursuant to Section 6 hereof. Each Agent proposes to
offer Securities purchased by it as principal for sale at prevailing market
prices or prices related thereto at the time of sale, which may be equal to,
greater than or less than the price at which such Securities are purchased by
such Agent from the Company. For each sale of Securities to an Agent as
principal that is not made pursuant to a Terms Agreement, the procedural
details relating to the issue and delivery of such Securities and payment
therefor shall be as set forth in the Administrative Procedure. For each such
sale of Securities to an Agent as principal that is not made pursuant to a
Terms Agreement, the Company agrees to pay such Agent a commission (or grant an
equivalent discount) as provided in Section 2(a) hereof and in accordance with
the schedule set forth therein. Each time and date of delivery of and payment
for Securities to be purchased by an Agent as principal, whether set forth in a
Terms Agreement or in accordance with the Administrative Procedure, is referred
to herein as a "Time of Delivery".
(c) Each Agent agrees, with respect to any Security denominated in a
currency other than U.S. dollars, as agent, directly or indirectly, not to
solicit offers to purchase, and as principal under any Terms Agreement or
otherwise, directly or indirectly, not to offer, sell or deliver, such Security
in, or to residents of, the country issuing such currency, except as permitted
by applicable law.
3. Commencement. The documents required to be delivered pursuant to
Section 6 hereof on the Commencement Date (as defined below) shall be delivered
to the Agents at the offices of Sullivan & Cromwell, 125 Broad Street, New
York, New York, at 11:00 a.m., New York City time, on the date of this
Agreement, which date and time of such delivery may be postponed by agreement
between the Agents and the Company but in no event shall be later than the day
prior to the date on which solicitation of offers to purchase Securities is
commenced or on which any Terms Agreement is executed (such time and date being
referred to herein as the "Commencement Date").
4. Certain Agreements of the Company. The Company covenants and agrees
with each Agent:
(a) (i) To make no amendment or supplement to the Registration Statement
or the Prospectus (A) prior to the Commencement Date which shall be disapproved
by any Agent promptly after reasonable notice thereof or (B) after the date of
any Terms Agreement or other agreement by an Agent to purchase Securities as
principal and prior to the related Time of Delivery which shall be disapproved
by any Agent party to such Terms Agreement or so purchasing as principal
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promptly after reasonable notice thereof; (ii) to prepare, with respect to any
Securities to be sold through or to such Agent pursuant to this Agreement, a
Pricing Supplement with respect to such Securities in a form previously
approved by such Agent and to file such Pricing Supplement pursuant to Rule
424(b)(3) under the Act not later than the close of business of the Commission
on the fifth business day after the date on which such Pricing Supplement is
first used; (iii) to make no amendment or supplement to the Registration
Statement or Prospectus, other than any Pricing Supplement, at any time prior
to having afforded each Agent a reasonable opportunity to review and comment
thereon; (iv) to file within the periods prescribed by the applicable rules and
regulations under the Exchange Act all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long
as the delivery of a prospectus is required in connection with the offering or
sale of the Securities, and during such same period to advise such Agent,
promptly after the Company receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or has become effective
or any supplement to the Prospectus or any amended Prospectus (other than any
Pricing Supplement that relates to Securities not purchased through or by such
Agent) has been filed with the Commission, of the issuance by the Commission of
any stop order or of any order preventing or suspending the use of any
prospectus relating to the Securities, of the suspension of the qualification
of the Securities for offering or sale in any jurisdiction, of the initiation
or threatening of any proceeding for any such purpose, or of any request by the
Commission for the amendment or supplement of the Registration Statement or
Prospectus or for additional information; and (v) in the event of the issuance
of any such stop order or of any such order preventing or suspending the use of
any such prospectus or suspending any such qualification, to use promptly its
best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as such Agent
reasonably may request to qualify the Securities for offering and sale under
the securities laws of such jurisdictions as such Agent may request and to
comply with such laws so as to permit the continuance of sales and dealings
therein for as long as may be necessary to complete the distribution or sale of
the Securities; provided, however, that in connection therewith the Company
shall not be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(c) The Company will furnish to each Agent copies of the Registration
Statement, including all exhibits, any
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related preliminary prospectus, any related preliminary prospectus supplement,
the Prospectus and all amendments and supplements to such documents (including
any Pricing Supplement), in each case as soon as available and in such
quantities as are reasonably requested; and if, at any time when a prospectus
relating to the Securities is required to be delivered under the Act, any event
occurs as a result of which the Prospectus, as then amended or supplemented,
would include an untrue statement of a material fact or omit to state any
material fact necessary 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 it is necessary at any such time to amend the Prospec tus to
comply with the Act, the Company will promptly notify each Agent by telephone
(with confirmation in writing) to suspend solicitation of offers to purchase
the Securities and to cease making offers or sales of Securities which an Agent
may then own as principal; and if the Company shall decide to amend or
supplement the Registration Statement or the Prospectus, it will promptly
advise each Agent by telephone (with confirmation in writing) and, subject to
the provisions of subsection (a) of this Section, will promptly prepare and
file with the Commission an amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance.
Notwithstanding the foregoing, if, at the time any such event occurs or it
becomes necessary to amend the Prospectus to comply with the Act, any Agent
shall own any of the Securities with the intention of reselling them, or the
Company has accepted an offer to purchase Securities but the related settlement
has not occurred, the Company, subject to the provisions of subsection (a) of
this Section, will promptly prepare and file with the Commission an amendment
or supplement which will correct such statement or omission or an amendment
which will effect such compliance. Neither the Agents' consent to, nor their
delivery of, any such amendment or supplement shall constitute a waiver of any
of the conditions set forth in Section 6.
(d) As soon as practicable after the date of each acceptance by the
Company of an offer to purchase Securities hereunder, but in any event not
later than the Applicable Availability Date (as defined below), the Company
will make generally available to its security holders an earnings statement
covering a period of at least 12 months beginning after the Applicable
Effective Date (as defined below) which will satisfy the provisions of Section
11(a) of the Act and the rules and regulations of the Commission thereunder.
For the purpose of the preceding sentence only, "Applicable Effective Date"
means the latest of (i) the effective date of the Registration Statement, (ii)
the effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of such
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acceptance and (iii) the date of filing of the Company's most recent Annual
Report on Form 10-K filed with the Commission prior to the date of such
acceptance, and "Applicable Availability Date" means (A) the 45th day after the
end of the fourth fiscal quarter following the fiscal quarter that includes the
Applicable Effective Date or (B) if such fourth fiscal quarter is the last
quarter of the Company's fiscal year, the 90th day after the end of such fourth
fiscal quarter;
(e) So long as any Securities are outstanding, to furnish to such Agent
copies of all reports or other communications (financial or other) furnished to
stockholders, and deliver to such Agent (i) as soon as they are available,
copies of any reports and financial statements furnished to or filed with the
Commission or any national securities exchange on which any class of securities
of the Company is listed; and (ii) such additional information concerning the
business and financial condition of the Company as such Agent may from time to
time reasonably request (such financial statements to be on a consolidated
basis to the extent the accounts of the Company and its subsidiaries are
consolidated in reports furnished to its stockholders generally or to the
Commission);
(f) That, from the date of any Terms Agreement with such Agent or other
agreement by such Agent to purchase Securities as principal and continuing to
and including the earlier of (i) the termination of the trading restrictions
for the Securities purchased thereunder, as notified to the Company by such
Agent and (ii) the related Time of Delivery, the Company will not, without the
prior written consent of such Agent, offer, sell, contract to sell or otherwise
dis pose of any debt securities of the Company which mature more than nine
months after such Time of Delivery and which are substantially similar to the
Securities;
(g) That each acceptance by the Company of an offer to purchase Securities
hereunder (including any pur chase by such Agent as principal not pursuant to a
Terms Agreement), and each execution and delivery by the Company of a Terms
Agreement with such Agent, shall be deemed to be an affirmation to such Agent
that the representations and warranties of the Company contained in or made
pursuant to this Agreement are true and correct as of the date of such
acceptance or of such Terms Agreement, as the case may be, as though made at
and as of such date, and an undertaking that such representations and
warranties will be true and correct as of the settlement date for the
Securities relating to such acceptance or as of the Time of Delivery relating
to such sale, as the case may be, as though made at and as of such date (except
that such representations and warranties shall be deemed to relate to the
Registration
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Statement and the Prospectus as amended and supplemented relating to such
Securities);
(h) That reasonably in advance of each time the Registration Statement or
the Prospectus shall be amended or supplemented (other than by a Pricing
Supplement) and each time a document filed under the Act or the Exchange Act is
incorporated by reference into the Prospectus, and each time the Company sells
Securities to such Agent as principal pursuant to a Terms Agreement and such
Terms Agreement specifies the delivery of an opinion or opinions by Sullivan &
Cromwell, counsel to the Agents, as a condition to the purchase of Securities
pursuant to such Terms Agreement, the Company shall furnish to such counsel
such papers and information as they may reasonably request to enable them to
furnish to such Agent the opinion or opinions referred to in Section 6(e)
hereof; and
(i) To offer to any person who has agreed to purchase Securities from the
Company as the result of an offer to purchase solicited by such Agent the right
to refuse to purchase and pay for such Securities if, on the related settlement
date fixed pursuant to the Administrative Procedure, any condition set forth in
Section 6(a), 6(g) or 6(h) hereof shall not have been satisfied (it being
understood that the judgment of such person with respect to the
impracticability or inadvisability of such purchase of securities shall be
substituted, for purposes of this Section 4(i), for the respective judgments of
an Agent with respect to certain matters referred to in such Sections 6(a),
6(g) and 6(h), and that such Agent shall have no duty or obligation whatsoever
to exercise the judgment permitted under such Sections 6(a), 6(g) or 6(h) on
behalf of any such person).
5. Expenses. The Company covenants and agrees with each Agent that the
Company will pay or cause to be paid the following: (i) the fees and expenses
of the Company's counsel and accountants in connection with the registration of
the Securities under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any Preliminary
Prospectus, the Prospectus and any Pricing Supplements and all other amendments
and supplements thereto and the mailing and delivering of copies thereof to
such Agent; (ii) the reasonable fees and expenses of counsel for the Agents in
connection with the establishment of the program contemplated hereby and the
transactions contemplated hereunder; (iii) the reasonable out-of-pocket
expenses of such Agent; (iv) the cost of printing, preparing by word processor
or reproducing this Agreement, any Terms Agreement, the Indenture, any Blue Sky
and Legal Investment Memoranda and any other documents in connection with the
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<PAGE>
offering, purchase, sale and delivery of the Securities; (v) all expenses in
connection with the qualification of the Securities for offering and sale under
state securities laws as provided in Section 4(b) hereof, including fees and
disbursements of counsel for the Agents in connection with such qualification
and in connection with the Blue Sky and legal investment surveys; (vi) any fees
charged by securities rating services for rating the Securities; (vii) any
filing fees incident to any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Securities; (viii) the
cost of preparing the Securities; (ix) the fees and expenses of the Trustee and
any agent of the Trustee and any transfer or paying agent of the Company and
the fees and disbursements of counsel for the Trustee or such agent in
connection with the Indenture and the Securities; (x) any advertising expenses
connected with the solicitation of offers to purchase and the sale of
Securities so long as such advertising expenses have been approved by the
Company; and (xi) all other costs and expenses incident to the performance of
the Company's obligations hereunder which are not otherwise specifically
provided for in this Section. Except as provided in Sections 7 and 8 hereof,
each Agent shall pay all other expenses it incurs.
6. Conditions of Obligations. The obligation of any Agent, as agent of the
Company, at any time ("Solicitation Time") to solicit offers to purchase the
Securities and the obligation of any Agent to purchase Securities as principal,
pursuant to any Terms Agreement or otherwise, shall in each case be subject, in
such Agent's discretion, to the condition that all representations and
warranties and other statements of the Company herein (and, in the case of an
obligation of an Agent under a Terms Agreement, in or incorporated in such
Terms Agreement by reference) are true and correct at and as of the
Commencement Date and at and as of such Solicitation Time or Time of Delivery,
as the case may be, the condition that prior to such Solicitation Time or Time
of Delivery, as the case may be, the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) (i) With respect to any Securities sold at or prior to such
Solicitation Time or Time of Delivery, as the case may be, the Prospectus as
amended or supplemented (including the Pricing Supplement) with respect to such
Securities shall have been filed with the Commission pursuant to Rule 424(b)
under the Act within the applicable time period prescribed for such filing by
the rules and regulations under the Act and in accordance with Section 4(a)
hereof; (ii) no stop order suspending the effectiveness of any part of the
Registration Statement shall have been
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<PAGE>
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and (iii) all requests for additional information
on the part of the Commission shall have been complied with to the reasonable
satisfaction of such Agent.
(b) At the Commencement Date and, if specified in a Terms Agreement, at
the time of delivery of the Securities described in such Terms Agreement, such
Agent shall have received:
(1) an opinion, dated the Commencement Date, or such date of
delivery, as the case may be, of Stephen D. Wayne, Esq., Assistant General
Counsel for the Company, to the effect set forth in Annex III hereto; and
(2) an opinion, dated the Commencement Date, or such date of
delivery, as the case may be, of Davis Polk & Wardwell, counsel for the
Company, to the effect set forth in Annex IV hereto.
(c) At the Commencement Date and, if specified in a Terms Agreement, at
the time of delivery of the Securities described in such Terms Agreement, such
Agent shall have received a certificate, dated the Commencement Date or such
date of delivery, as the case may be, of the President or any Vice President
and a principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge, shall state that (i) the
representations and warranties of the Company in this Agreement are true and
correct, (ii) the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to
the Commencement Date or such date of delivery, as the case may be, (iii) no
stop order suspending the effectiveness of the Registration Statement or of any
part thereof has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission, and (iv) subsequent to the
date of the most recent financial statements in the Prospectus, there has been
no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or otherwise),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole, except as set forth in or contemplated by the
Prospectus or as described in such certificate. In the case of each such
certificate delivered pursuant to a Terms Agreement, the statements contained
in such certificate relating to the Registration Statement or the Prospectus
shall relate to the Registration Statement or the Prospectus, as the case may
be, as amended or supplemented as of the date of the Company's acceptance of
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<PAGE>
the offer to purchase such Securities and as of the time of delivery of such
Securities.
(d) At the Commencement Date and on each date the Company files with the
Commission an Annual Report on Form 10-K or a Quarterly Report on Form 10-Q,
such Agent shall have received a letter, dated the Commencement Date or such
date of filing or delivery, as the case may be, of PricewaterhouseCoopers LLP,
confirming that they are independent public accountants within the meaning of
the Act and the applicable pub lished rules and regulations thereunder and
stating to the effect set forth in Annex V hereto.
(e) At the Commencement Date, the Agents shall have received from Sullivan
& Cromwell, counsel for the Agents, such opinion or opinions, dated the
Commencement Date, with respect to the incorporation of the Company, the
validity of the Securities, the Registration Statement, the Prospectus and
other related matters as the Agents may reasonably require, and the Company
shall have furnished to such counsel such documents as they reasonably request
for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Agents or their counsel such
further certificates and documents as the Agents or such counsel reasonably
request.
(g)(i) Neither the Company nor any of its subsid iaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus as amended or supplemented prior to
the date of the Pricing Supplement relating to the Securities to be delivered
at the relevant Time of Delivery any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Prospectus as
amended or supplemented prior to the date of the Pricing Supplement relating to
the Securities to be delivered at the relevant Time of Delivery and (ii) since
the respective dates as of which information is given in the Prospectus as
amended or supplemented prior to the date of the Pricing Supplement relating to
the Securities to be delivered at the relevant Time of Delivery there shall not
have been any change in the capital stock or long-term debt of the Company or
any of its subsidiaries, or any change, or any development involving a
prospective change, in or affecting the
17
<PAGE>
general affairs, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, otherwise than as
set forth or contemplated in the Prospectus as amended or supplemented prior to
the date of the Pricing Supplement relating to the Securities to be delivered
at the relevant Time of Delivery, the effect of which, in any such case
described in clause (i) or (ii), is in the judgment of such Agent so material
and adverse as to make it impracticable or inadvisable to proceed with the
solicitation by such Agent of offers to purchase Securities from the Company or
the purchase by such Agent of Securities from the Company as principal, as the
case may be, on the terms and in the manner contemplated in the Prospectus as
amended or supplemented prior to the date of the Pricing Supplement relating to
the Securities to be delivered at the relevant Time of Delivery;
(h) There shall not have occurred any of the following: (i) a suspension
or material limitation in trading in securities generally on the New York Stock
Exchange; (ii) a general moratorium on commercial banking activities in New
York declared by either Federal or New York State authorities; (iii) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the effect
of any such event specified in this clause (iii) in the judgment of such Agent
makes it impracticable or inadvisable to proceed with the solicitation of
offers to purchase Securities or the purchase by such Agent of Securities from
the Company as principal, pursuant to the applicable Terms Agreement or
otherwise, as the case may be, on the terms and in the manner contemplated in
the Prospectus as amended or supplemented; or (iv) (x) any downgrading in the
rating accorded the Company's debt securities by any "nationally recognized
statistical rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act or (y) any such organization shall
have publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt securities; and
(i) With respect to any Security denominated in a currency other than the
U.S. dollar, more than one currency or a composite currency or any Security the
principal or interest of which is indexed to such currency, currencies or
composite currency, there shall not have occurred a suspension or material
limitation in foreign exchange trading in such currency,
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<PAGE>
currencies or composite currency by a major international bank, a general
moratorium on commercial banking activities in the country or countries issuing
such currency, currencies or composite currency, the outbreak or escalation of
hostilities involving, the financial, political or economic conditions of, or
the declaration of war or a national emergency by, the country or countries
issuing such currency, currencies or composite currency or the imposition or
proposal of exchange controls by any governmental authority in the country or
countries issuing such currency, currencies or composite currency.
The Company will furnish the Agents with such conformed copies of such
opinions, certificates, letters and documents as they reasonably request.
7. Additional Covenants of the Company. The Company agrees that:
(a) Each acceptance by the Company of an offer for the purchase of
Securities shall be deemed to be an affirmation that its representations
and warranties contained in this Agreement are true and correct at the
time of such acceptance and a covenant that such representations and
warranties will be true and correct at the time of delivery to the
purchaser of the Securities as though made at and as of each such time, it
being understood that such representations and warranties shall relate to
the Registration Statement and the Prospectus as amended or supplemented
at each such time. Each such acceptance by the Company of an offer to
purchase Securities shall be deemed to constitute an additional
representation, warranty and agreement by the Company that, as of the date
of delivery of such Securities to the purchaser thereof, after giving
effect to the issuance of such Securities, of any other Securities to be
issued on or prior to such delivery date and of any other Registered
Securities to be issued and sold by the Company on or prior to such
delivery date, the aggregate amount of Registered Securities (including
any Securities) which have been issued and sold by the Company will not
exceed the amount of Registered Securities registered pursuant to the
Registration Statement.
(b) At each Selected Representation Date (as defined below), the
Company shall, (A) concurrently with such amendment or supplement, if such
amendment or supplement shall occur at a Marketing Time (as defined
below), or (B) immediately at the next Marketing Time if such amendment or
supplement shall not occur at a Marketing Time, furnish the Agents with a
certificate,
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<PAGE>
dated the date of delivery thereof, of the President or any Vice President
and a principal financial or accounting officer of the Company, in form
reasonably satisfactory to the Agents, to the effect that the statements
contained in the certificate covering the matters set forth in Section
6(c) hereof which was last furnished to the Agents pursuant to Section
6(c) or this Section 7(b) are true and correct at the time of such
amendment or supplement, as though made at and as of such time or, in lieu
of such certificate, a certificate of the same tenor as the certificate
referred to in Section 6(c); provided, however, that any certificate
furnished under this Section 7(b) shall relate to the Registration
Statement and the Prospectus as amended or supplemented at the time of
delivery of such certificate and, in the case of the matters set forth in
clause (ii) of Section 6(c), to the time of delivery of such certificate.
A "Selected Representation Date" shall mean each time that the
Registration Statement or the Prospectus is amended or supplemented (other
than by the filing of (i) a Current Report on Form 8-K or a Quarterly
Report on Form 10-Q, (ii) a prospectus supplement that does not relate to
the Securities or (iii) a Pricing Supplement). A "Marketing Time" shall
mean any time when no suspension of offers to purchase Securities pursuant
to Section 2(a) or Section 4(c) shall be in effect or any time when either
any Agent shall own any Securities with the intention of reselling them or
the Company has accepted an offer to purchase Securities but the related
settlement has not occurred.
(c) At each Selected Representation Date referred to in Section 7(b)
(other than the Selected Representation Dates on which the Registration
Statement or the Prospectus is amended or supplemented solely to include
additional financial information), and as specified in a Terms Agreement
with respect to the opinion referred to in Section 6(b)(1) hereof, the
Company shall, (A) concurrently if such Selected Representation Date shall
occur at a Marketing Time, or (B) immediately at the next Marketing Time
if such Selected Representation Date shall not occur at a Marketing Time,
furnish the Agents with a written opinion or opinions, dated the date of
such Selected Representation Date, of counsel for the Company, in form
reasonably satisfactory to the Agents, to the effect set forth in Section
6(b) hereof; provided, however, that to the extent appropriate such
opinion or opinions may reconfirm matters set forth in a prior opinion or
opinions delivered at the Commencement Date or under this Section 7(c);
provided further, however, that any opinion or opinions furnished under
this
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<PAGE>
Section 7(c) shall relate to the Registration Statement and the Prospectus
as amended or supplemented at such Selected Representation Date and shall
state that the Securities sold in the relevant Applicable Period (as
defined below) have been duly executed, authenticated, issued and
delivered and constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, subject only to the
exceptions set forth in clause (4) of Annex III hereto and clause (3) of
Annex IV hereto as to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and general equity principles,
and conform to the description thereof contained in the Prospectus as
amended or supplemented at the relevant date or dates for the delivery of
such Securities to the purchaser or purchasers thereof. For the purpose of
this Section 7(c), "Applicable Period" shall mean with respect to any
opinion delivered on a Selected Representation Date the period commencing
on the date as of which the most recent prior opinion delivered at the
Commencement Date or under this Section 7(c) speaks and ending on such
Selected Representation Date.
(d) At each Representation Date (as defined below), other than a
Representation Date arising from the filing of (i) a Current Report on
Form 8-K which relates solely to summary quarterly earnings information,
(ii) a prospectus supplement that does not relate to the Securities or
(iii) a Pricing Supplement, on which the Registration Statement or the
Prospectus shall be amended or supplemented to include additional
financial information, the Company shall cause PricewaterhouseCoopers LLP
(A) concurrently if such Representation Date shall occur at a Marketing
Time, or (B) immediately at the next Marketing Time if such Representation
Date shall not occur at a Marketing Time, to furnish the Agents with a
letter, addressed jointly to the Company and the Agents and dated the date
of such Representation Date, in form and substance reasonably satisfactory
to the Agents, to the effect set forth in Section 6(d) hereof; provided,
however, that to the extent appropriate such letter may reconfirm matters
set forth in a prior letter delivered at the Commencement Date or pursuant
to this Section 7(d); provided further, however, that any letter furnished
under this Section 7(d) shall relate to the Registration Statement and the
Prospectus as amended or supplemented at such Representation Date, with
such changes as may be necessary to reflect changes in the financial
statements and other information derived from the accounting records of
the Company. A
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"Representation Date" shall mean each time of acceptance and delivery
referred to in subsection (a) of this Section 7, the Commencement Date and
each time the Registration Statement or the Prospectus is amended or
supplemented.
(e) The Company agrees that any obligation of a person who has agreed
to purchase Securities and to make payment for and take delivery of such
Securities shall be subject to (i) the accuracy, on the related settlement
date fixed pursuant to the Administrative Procedure, of the Company's
representation and warranty deemed to be made to the Agents pursuant to
subsection (a) of this Section 7, and (ii) the satisfaction, on such
settlement date, of each of the conditions set forth in Sections 6(a), (g)
and (h), it being understood that any reference to an Agent therein shall
be deemed a reference to such person for purposes of this Section 7(e) and
under no circumstance shall any Agent have any duty or obligation to
exercise the judgment permitted under Section (6)(g) or (h) on behalf of
any such person.
8. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each Agent against any
losses, claims, damages or liabilities, joint or several, to which such Agent
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement, the
Prospectus, the Prospectus as amended or supplemented, or any other prospectus
relating to the Securities or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse such Agent for any legal or other
expenses reasonably incurred by it in connection with investigating or
defending any such action or claim; provided, however, that the Company shall
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement, the Prospectus, the Prospectus as
amended or supplemented or any other prospectus relating to the Securities or
any such amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company by such Agent expressly for use
therein.
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<PAGE>
(b) Each Agent will severally and not jointly indemnify and hold harmless
the Company against any losses, claims, damages or liabilities to which the
Company may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration Statement, the
Prospectus, the Prospectus as amended or supplemented or any other prospectus
relating to the Securities, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, the Registration Statement,
the Prospectus, the Prospectus as amended or supplemented or any other
prospectus relating to the Securities, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by such Agent expressly for use therein; and will reimburse the Company
for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indem nifying
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 indemni fied 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
23
<PAGE>
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 each Agent on the other from the
offering of the Securities to which such loss, claim, damage or liability (or
action in respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c)
above, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company on the one hand and each Agent on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabil ities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and each Agent on the other shall be deemed to be in the same
proportion as the total net proceeds from the sale of Securities (before
deducting expenses) received by the Company bear to the total commissions or
discounts received by such Agent in respect thereof. The relative fault shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading relates to information supplied by
the Company on the one hand or by any Agent on the other and the parties'
relative intent, knowledge, access to informa tion and opportunity to correct
or prevent such statement or omission. The Company and each Agent agree that it
would
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<PAGE>
not be just and equitable if contribution pursuant to this subsection (d) were
determined by per capita allocation (even if all Agents were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), each Agent shall not be required to
contribute any amount in excess of the amount by which the total public
offering price at which the Securities purchased by or through such Agent were
sold exceeds the amount of any damages which such Agent has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of each of the Agents under this subsection
(d) to contribute are several in proportion to the respective purchases made by
or through it to which such loss, claim, damage or liability (or action in
respect thereof) relates and are not joint.
(e) The obligations of the Company under this Section 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 Agent within the meaning of the Act; and the obligations of each
Agent under this Section 8 shall be in addition to any liability which such
Agent may otherwise have and shall extend, upon the same terms and conditions,
to each officer and director of the Company and to each person, if any, who
controls the Company within the meaning of the Act.
9. Status of Each Agent. Each Agent, in soliciting offers to purchase
Securities from the Company and in performing the other obligations of such
Agent hereunder (other than in respect of any purchase by an Agent as
principal, pursuant to a Terms Agreement or otherwise), is acting solely as
agent for the Company and not as principal. Each Agent will make reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Securities from the Company was solicited by such Agent and
has been accepted by the Company, but such Agent shall not have any liability
to the Company in the event such purchase is not consummated for any reason. If
the Company shall default on its obliga tion to deliver Securities to a
purchaser whose offer it has
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<PAGE>
accepted, the Company shall (i) hold each Agent harmless against any loss,
claim or damage arising from or as a result of such default by the Company and
(ii) notwithstanding such default, pay to the Agent that solicited such offer
any commission to which it would be entitled in connection with such sale.
10. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements by
any Agent and the Company set forth in or made pursuant to this Agreement shall
remain in full force and effect regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of any Agent or any
controlling person of any Agent or the Company, or any officer or director or
any controlling person of the Company, and shall survive each delivery of and
payment for any of the Securities.
11. Termination. The provisions of this Agreement relating to the
solicitation of offers to purchase Securities from the Company may be suspended
or terminated at any time by the Company as to any Agent or by any Agent as to
such Agent upon the giving of written notice of such suspension or termination
to such Agent or the Company, as the case may be. In the event of such
suspension or termination with respect to any Agent, (x) this Agreement shall
remain in full force and effect with respect to any Agent as to which such
suspension or termination has not occurred, (y) the Company shall not have any
liability to such Agent and such Agent shall not have any liability to the
Company, except as provided in any Terms Agreements and in the fourth paragraph
of Section 2(a), Section 4(d), Section 4(e), Section 5, Section 8, Section 9
and Section 10 and except that (i) so long as such Agent owns Securities with a
view to reselling such Securities, the Company shall continue to have the
obligations provided in subsections (a), (b), (c) and (e) of Section 4 and
(ii), until the later of the date of the last settlement of a purchase of
Securities resulting from a solicitation made by such Agent prior to such
suspension or termination and the last Time of Delivery with respect to any
Terms Agreement to which such Agent is a party, the Company and such Agent
shall continue to have the respective obligations provided in the
Administrative Procedure and the Company shall continue to have the obligations
provided in subsections (a), (b), (c) and (e) through (i) of Section 4.
12. Sales of Securities Denominated in a Currency Other Than U.S. Dollars
or of Indexed Securities. If at any time the Company and any of the Agents
shall determine to issue and sell Securities denominated in a currency other
than U.S. dollars, which other currency may include a
26
<PAGE>
currency unit, or with respect to which an index is used to determine the
amounts of payments of principal and any premium and interest, the Company and
any such Agent may execute and deliver a supplement to this Agreement for the
purpose of making any appropriate additions to and modifications of the terms
of this Agreement (and the Administrative Procedure) applicable to such
Securities and the offer and sale thereof. The Agents are authorized to solicit
offers to purchase Securities with respect to which an index is used to
determine the amounts of payments of principal and any premium and interest,
and the Company shall agree to any sales of such Securities (whether offered on
any agency or principal basis), only in a minimum aggregate amount of
$2,500,000. The Company will not issue Securities denominated in Yen otherwise
than in compliance with applicable Japanese laws, regulations and policies. In
particular, the Company or its designated agent shall submit such reports or
information as may be required from time to time by applicable law, regulations
and guidelines promulgated by Japanese governmental and regulatory authorities
in the case of the issue and purchase of the Securities and the Company shall
ensure that each such Security shall have a minimum denomination of
(Y)1,000,000 and a minimum maturity of one year or such other minimum
denomination and maturity as may be allowed from time to time by Japanese
governmental and regulatory authorities. The Agents hereby agree to comply with
all applicable foreign laws as they relate to such Securities denominated in a
currency other than U.S. dollars.
13. Notices. Except as otherwise specifically provided herein or in the
Administrative Procedure, all statements, requests, notices and advices
hereunder shall be in writing, or by telephone if promptly confirmed in
writing, and if to Salomon Smith Barney Inc. shall be sufficient in all
respects when delivered or sent by facsimile transmission or registered mail to
Seven World Trade Center, New York, New York 10048, Facsimile Transmission No.
212-783-2274, Attention: Martha Bailey, and if to Banc of America Securities
LLC shall be sufficient in all respects when delivered or sent by facsimile
transmission or registered mail to 100 North Tryon Street, Charlotte, North
Carolina 28255, Facsimile Transmission No. 704-388-9939, Attention: Ileana Chu,
and if to Bear, Stearns & Co. Inc. shall be sufficient in all respects when
delivered or sent by facsimile transmission or registered mail to 245 Park
Avenue, New York, New York 10167, Facsimile Transmission No. 212-272-2619,
Attention: Ranada R. Fergerson, and if to J.P. Morgan Securities Inc. shall be
sufficient in all respects when delivered or sent by facsimile transmission or
registered mail to 60 Wall Street, New York, New York 10260, Facsimile
Transmission No. 212- 648-5151, Attention: Transaction Execution Group, and if
to
27
<PAGE>
the Company shall be sufficient in all respects when delivered or sent by
facsimile transmission or registered mail to 27 Waterview Drive, Shelton,
Connecticut 06484-4361, Facsimile Transmission No. (203) 922-4380, Attention:
Treasurer.
14. Successors. This Agreement and any Terms Agreement shall be binding
upon, and inure solely to the benefit of, each Agent and the Company, and to
the extent provided in Sections 8, 9 and 10 hereof, the officers and directors
of the Company and any person who controls any Agent or the Company, and their
respective personal repre sentatives, successors and assigns, and no other
person shall acquire or have any right under or by virtue of this Agreement or
any Terms Agreement. No purchaser of any of the Securities through or from any
Agent hereunder shall be deemed a successor or assign by reason merely of such
purchase.
15. Time to Be of the Essence. Time shall be of the essence in this
Agreement and any Terms Agreement. As used herein, the term "business day"
shall mean any day when the office of the Commission in Washington, D.C. is
normally open for business.
16. Applicable Law. This Agreement and any Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York.
17. Counterparts. This Agreement and any Terms Agreement may be executed
by any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be an original, but all of such respective
counterparts shall together constitute one and the same instrument.
28
<PAGE>
If the foregoing is in accordance with your under standing, please sign
and return to us three counterparts hereof, whereupon this letter and the
acceptance by each of you thereof shall constitute a binding agreement between
the Company and each of you in accordance with its terms.
Very truly yours,
PITNEY BOWES CREDIT
CORPORATION
By:______________________
Title: Vice President
By:______________________
Title: Treasurer
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<PAGE>
Accepted in New York, New York, as of the date hereof:
SALOMON SMITH BARNEY INC.
By:____________________________
Name: Martha Bailey
Title: First Vice President
BANC OF AMERICA SECURITIES LLC
By:____________________________
Name:
Title:
BEAR, STEARNS & CO. INC.
By:____________________________
Name:
Title:
J.P. MORGAN SECURITIES INC.
By:____________________________
Name:
Title:
30
<PAGE>
ANNEX I
PITNEY BOWES CREDIT CORPORATION
[Title of Security]
[$,000,000]
Medium-Term Notes, Series D
TERMS AGREEMENT
---------- --, ----
[Salomon Smith Barney Inc.,
Seven World Trade Center,
New York, New York 10048.]
[Banc of America Securities LLC
100 North Tryon Street
Charlotte, North Carolina 28255]
[Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167]
[J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260]
Dear Sirs:
Pitney Bowes Credit Corporation (the "Company") proposes, subject to the
terms and conditions stated herein and in the Distribution Agreement, dated
August 30, 1999 (the "Distribution Agreement"), between the Company on the one
hand and Salomon Smith Barney Inc., Banc of America Securities LLC, Bear,
Stearns & Co. Inc. and J.P. Morgan Securities Inc. (the "Agents") on the other,
to issue and sell to [Salomon Smith Barney Inc.][Banc of America Securities
LLC][Bear, Stearns & Co. Inc.][J.P. Morgan Securities Inc.] the securities
specified in the Schedule hereto (the "Purchased Securities"). Each of the
provisions of the Distribution Agreement not specifically related to the
solicitation by the Agents, as agent of the Company, of offers to purchase
Securities is incorporated herein by reference in its entirety, and shall be
deemed to be part of this Terms Agreement to the same extent as if such
provisions had been set forth in full herein. Nothing
I-1
<PAGE>
contained herein or in the Distribution Agreement shall make any party hereto
an agent of the Company or make such party subject to the provisions therein
relating to the solicitation of offers to purchase Securities from the Company,
solely by virtue of its execution of this Terms Agreement. Each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Terms Agreement, except that each
representation and warranty in Section 1 of the Distribution Agreement which
makes reference to the Prospectus shall be deemed to be a representation and
warranty as of the date of the Distribution Agreement in relation to the
Prospectus (as therein defined), and also a representation and warranty as of
the date of this Terms Agreement in relation to the Prospectus as amended and
supplemented to relate to the Purchased Securities.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Purchased Securities, in the
form heretofore deli vered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Distribution Agreement incorporated herein by reference, the Company agrees to
issue and sell to [Salomon Smith Barney Inc.][Banc of America Securities
LLC][Bear, Stearns & Co. Inc.][J.P. Morgan Securities Inc.] and [Salomon Smith
Barney Inc.][Banc of America Securities LLC][Bear, Stearns & Co. Inc.][J.P.
Morgan Securities Inc.] agree[s] to purchase from the Company the Purchased
Securities, at the time and place, in the principal amount and at the purchase
price set forth in the Schedule hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us two counterparts hereof, and upon acceptance hereof by you this
letter and such acceptance hereof, including those provisions of the
Distribution Agreement incorporated herein by reference, shall constitute a
binding agreement between you and the Company.
PITNEY BOWES CREDIT
CORPORATION
By:_______________________
Authorized Officer
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<PAGE>
Accepted:
[SALOMON SMITH BARNEY INC.]
[BANC OF AMERICA SECURITIES LLC]
[BEAR, STEARNS & CO. INC.]
[J.P. MORGAN SECURITIES INC.]
By:_______________________
Name:
Title:
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<PAGE>
Schedule to Annex I
Title of Purchased Securities:
[ % Notes due ] Medium-Term Notes, Series D
Aggregate Principal Amount:
$ or units of other Specified Currency
[Price to Public:]
Purchase Price by [Salomon Smith Barney Inc.][Banc of
America Securities LLC][Bear, Stearns & Co. Inc.][J.P.
Morgan Securities Inc.]
% of the principal amount of the Purchased Securities, [plus
accrued interest from to ] [and accrued amortization from to ]
Method of and Specified Funds for Payment of Purchase Price:
[By certified or official bank check or checks, payable to the order
of the Company, in [[New York] Clearing House] [immediately available]
funds]
[By wire transfer to a bank account specified by the
Company in [next day] [immediately available] funds]
Indenture:
Indenture, dated as of July 31, 1999, between the
Company and SunTrust Bank, as Trustee
Time of Delivery:
Closing Location:
Maturity:
Interest Rate:
[ %]
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<PAGE>
Interest Payment Dates:
[months and dates]
Documents to be Delivered:
The following documents referred to in the Distribution Agreement
shall be delivered as a condition to the Closing:
[(1) The opinion or opinions of counsel to the Agents referred
to in Section 6(e).]
[(2) The opinions of counsel to the Company referred to in
Section 6(b).]
[(3) The accountants' letter referred to in Section 6(d).]
[(4) The officers' certificate referred to in Section 6(c).]
Other Provisions (including Syndicate Provisions, if
applicable):
I-5
<PAGE>
ANNEX II
PITNEY BOWES CREDIT CORPORATION
Administrative Procedure
This Administrative Procedure relates to the Securities defined in the
Distribution Agreement, dated August 30, 1999 (the "Distribution Agreement"),
between Pitney Bowes Credit Corporation (the "Company") and Salomon Smith
Barney Inc., Banc of America Securities LLC, Bear, Stearns & Co. Inc. and J.P.
Morgan Securities Inc. (together, the "Agents"), to which this Administrative
Procedure is attached as Annex II. Defined terms used herein and not defined
herein shall have the meanings given such terms in the Distribution Agreement,
the Prospectus as amended or supplemented or the Indenture.
The procedures to be followed with respect to the settlement of sales of
Securities directly by the Company to purchasers solicited by an Agent, as
agent, are set forth below. The terms and settlement details related to a
purchase of Securities by an Agent, as principal, from the Company will be set
forth in a Terms Agreement pursuant to the Distribution Agreement, unless the
Company and such Agent otherwise agree as provided in Section 2(b) of the
Distribution Agreement, in which case the procedures to be followed in respect
of the settlement of such sale will be as set forth below. An Agent, in
relation to a purchase of a Security by a purchaser solicited by such Agent, is
referred to herein as the "Selling Agent" and, in relation to a purchase of a
Security by such Agent as principal other than pursuant to a Terms Agreement,
as the "Purchasing Agent".
The Company will advise each Agent in writing of those persons with whom
such Agent is to communicate regarding offers to purchase Securities and the
related settlement details.
Each Security will be issued only in fully registered form and will be
represented by either a global security (a "Global Security") delivered to the
Trustee, as agent for The Depository Trust Company (the "Depositary") and
recorded in the book-entry system maintained by the Depositary (a "Book-Entry
Security") or a certificate issued in definitive form (a "Certificated
Security") delivered to a person designated by an Agent, as set forth in the
applicable Pricing Supplement. An owner of a Book-Entry Security will not be
entitled to receive a certificate representing such a Security, except as
provided in the Indenture.
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<PAGE>
Book-Entry Securities will be issued in accordance with the Administrative
Procedure set forth in Part I hereof, and Certificated Securities will be
issued in accordance with the Administrative Procedure set forth in Part II
hereof.
PART I: ADMINISTRATIVE PROCEDURE FOR BOOK-ENTRY SECURITIES
In connection with the qualification of the Book-Entry Securities for
eligibility in the book-entry system maintained by the Depositary, the Trustee
will perform the custodial, document control and administrative functions
described below, in accordance with its respective obligations under a Letter
of Representation from the Company and the Trustee to the Depositary, dated the
date hereof, and a Medium-Term Note Certificate Agreement between the Trustee
and the Depositary, dated as of August 16, 1999 (the "Certificate Agreement"),
and its obligations as a participant in the Depositary, including the
Depositary's Same-Day Funds Settlement System ("SDFS").
Posting Rates by the Company:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Book-Entry Securities
that may be sold as a result of the solicitation of offers by an Agent. The
Company may establish a fixed set of interest rates and maturities for an
offering period ("posting"). If the Company decides to change already posted
rates, it will promptly advise the Agents to suspend solicitation of offers
until the new posted rates have been established with the Agents.
Acceptance of Offers by the Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Book-Entry Securities,
other than those rejected by such Agent. Each Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part. Each
Agent also may make offers to the Company to purchase Book-Entry Securities as
a Purchasing Agent. The Company will have the sole right to accept offers to
purchase Book-Entry Securities and may reject any such offer in whole or in
part.
The Company will promptly notify the Agent or Purchasing Agent, as the
case may be, of its acceptance or rejection of an offer to purchase Book-Entry
Securities. If the Company accepts an offer to purchase Book-Entry Securities,
it will confirm such acceptance in writing to
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<PAGE>
the Selling Agent or Purchasing Agent, as the case may be, and the Trustee.
Communication of Sale Information to the Company by Agent
and Settlement Procedures:
A. After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate promptly, but in no
event later than the time set forth under "Settlement Procedure Timetable"
below, the following details of the terms of such offer (the "Sale
Information") to the Company by telephone (confirmed in writing) or by
facsimile transmission or other acceptable written means:
(1) Principal Amount of Book-Entry Securities to be purchased;
(2) If a Fixed Rate Book-Entry Security, the interest rate and
initial interest payment date;
(3) Trade Date;
(4) Settlement Date;
(5) Maturity Date;
(6) Specified Currency and, if the Specified Currency is other than
U.S. dollars, the applicable Exchange Rate for such Specified Currency (it
being understood that currently the Depositary accepts deposits of Global
Securities denominated in U.S. dollars only);
(7) Indexed Currency, the Base Rate and the Exchange Rate
Determination Date, if applicable;
(8) Issue Price;
(9) Selling Agent's commission or Purchasing Agent's discount, as the
case may be;
(10) Net Proceeds to the Company;
(11) If a redeemable Book-Entry Security, such of the following as
are applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par), and
(iii) Amount (% of par) that the Redemption Price shall decline
(but not below par) on each anniversary of the Redemption
Commencement Date;
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<PAGE>
(12) If a Floating Rate Book-Entry Security, such of the following as
are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(13) Name, address and taxpayer identification number of the
registered owner(s);
(14) Denomination of certificates to be delivered at settlement;
(15) Book-Entry Security or Certificated Security; and
(16) Selling Agent or Purchasing Agent.
B. After receiving the Sale Information from the Selling Agent or
Purchasing Agent, as the case may be, the Company will communicate such Sale
Information to the Trustee by facsimile transmission or other acceptable
written means. The Trustee will assign a CUSIP number to the Global Security
from a list of CUSIP numbers previously delivered to the Trustee by the Company
representing such Book-Entry Security and then advise the Company and the
Selling Agent or Purchasing Agent, as the case may be, of such CUSIP number.
C. The Trustee will enter a pending deposit message through the
Depositary's Participant Terminal System, providing the following settlement
information to the Depositary, and the Depositary shall forward such
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<PAGE>
information to such Agent and Standard & Poor's Ratings Service, a Division of
The McGraw Hill Companies:
(1) The applicable Sale Information;
(2) CUSIP number of the Global Security representing such Book-Entry
Security;
(3) Whether such Global Security will represent any other Book-Entry
Security (to the extent known at such time);
(4) Number of the participant account maintained by the Depositary on
behalf of the Selling Agent or Purchasing Agent, as the case may be;
(5) The interest payment period; and
(6) Initial Interest Payment Date for such Book-Entry Security,
number of days by which such date succeeds the record date for the
Depositary's purposes (or, in the case of Floating Rate Securities which
reset daily or weekly, the date five calendar days immediately preceding
the applicable Interest Payment Date and, in the case of all other
Book-Entry Securities, the Regular Record Date, as defined in the
Security) and, if calculable at that time, the amount of interest payable
on such Interest Payment Date.
D. The Trustee will complete and authenticate the Global Security
previously delivered by the Company representing such Book-Entry Security.
E. The Depositary will credit such Book-Entry Security to the Trustee's
participant account at the Depositary.
F. The Trustee will enter an SDFS deliver order through the Depositary's
Participant Terminal System instructing the Depositary to (i) debit such
Book-Entry Security to the Trustee's participant account and credit such
Book-Entry Security to such Agent's participant account and (ii) debit such
Agent's settlement account and credit the Trustee's settlement account for an
amount equal to the price of such Book-Entry Security less such Agent's
commission. The entry of such a deliver order shall constitute a representation
and warranty by the Trustee to the Depositary that (a) the Global Security
representing such Book-Entry Security has been issued and authenticated and (b)
the Trustee is holding such Global Security pursuant to the Certificate
Agreement.
G. Such Agent will enter an SDFS deliver order through the Depositary's
Participant Terminal System
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<PAGE>
instructing the Depositary (i) to debit such Book-Entry Security to such
Agent's participant account and credit such Book-Entry Security to the
participant accounts of the Participants with respect to such Book-Entry
Security and (ii) to debit the settlement accounts of such Participants and
credit the settlement account of such Agent for an amount equal to the price of
such Book-Entry Security.
H. Transfers of funds in accordance with SDFS deliver orders described in
Settlement Procedures "F" and "G" will be settled in accordance with SDFS
operating procedures in effect on the settlement date.
I. Upon confirmation of receipt of funds, the Trustee will transfer to
account number 0920931 of Pitney Bowes Credit Corp. maintained at Mellon Bank,
New York, New York, ABA No. 043000261, or such other account as the Company may
have previously specified to the Trustee, in funds available for immediate use
in the amount transferred to the Trustee in accordance with Settlement
Procedure "F".
J. Upon request, the Trustee will send to the Company a statement setting
forth the principal amount of Book-Entry Securities outstanding as of that date
under the Indenture.
K. Such Agent will confirm the purchase of such Book-Entry Security to the
purchaser either by transmitting to the Participants with respect to such
Book-Entry Security a confirmation order or orders through the Depositary's
institutional delivery system or by mailing a written confirmation to such
purchaser.
L. The Depositary will, at any time, upon request of the Company or the
Trustee, promptly furnish to the Company or the Trustee a list of the names and
addresses of the participants for whom the Depositary has credited Book-Entry
Securities.
Preparation of Pricing Supplement:
If the Company accepts an offer to purchase a Book-Entry Security, it will
prepare a Pricing Supplement reflecting the terms of such Book-Entry Security
and arrange to have delivered to the Selling Agent or Purchasing Agent, as the
case may be, at least ten copies of such Pricing Supplement, not later than
12:00 noon, New York City time, on the Business Day following the Trade Date
(as defined below). The Company will arrange to have ten Pricing Supplements
filed with the Commission not later than the close of business of the
Commission on the fifth Business Day following the date on which such Pricing
Supplement is first used.
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Delivery of Confirmation and Prospectus to Purchaser by
Selling Agent:
The Selling Agent will deliver to the purchaser of a Book-Entry Security a
written confirmation of the sale and delivery and payment instructions. In
addition, the Selling Agent will deliver to such purchaser or its agent the
Prospectus as amended or supplemented (including the Pricing Supplement) in
relation to such Book-Entry Security prior to or together with the earlier of
the delivery to such purchaser or its agent of (a) the confirmation of sale or
(b) the Book-Entry Security.
Date of Settlement:
The receipt by the Company of immediately available funds in payment for a
Book-Entry Security and the authentication and issuance of the Global Security
representing such Book-Entry Security shall constitute "settlement" with
respect to such Book-Entry Security. All orders of Book-Entry Securities
solicited by a Selling Agent or made by a Purchasing Agent and accepted by the
Company on a particular date (the "Trade Date") will be settled on a date (the
"Settlement Date") which is the third Business Day after the Trade Date
pursuant to the "Settlement Procedure Timetable" set forth below, unless the
Company and the purchaser agree to settlement on another Business Day which
shall be no earlier than the next Business Day after the Trade Date.
Settlement Procedure Timetable:
For orders of Book-Entry Securities solicited by a Selling Agent and
accepted by the Company for settlement on the third Business Day after the
Trade Date, Settlement Procedures "A" through "I" set forth above shall be
completed as soon as possible but not later than the respective times (New York
City time) set forth below:
Settlement
Procedure Time
- ----------- ----
A 5:00 p.m. on the Business Day following the Trade
Date or 10:00 a.m. on the Business Day
prior to the Settlement Date, whichever
is earlier
B 12:00 noon on the second Business Day immediately
preceding the Settlement Date
C 2:00 p.m. on the second Business Day immediately
preceding the Settlement Date
D 9:00 a.m. on the Settlement Date
E 10:00 a.m. on the Settlement Date
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Settlement
Procedure Time
- ----------- ----
F-G 2:00 p.m. on the Settlement Date
H 4:45 p.m. on the Settlement Date
I 5:00 p.m. on the Settlement Date
If the initial interest rate for a Floating Rate Book-Entry Security has
not been determined at the time that Settlement Procedure "A" is completed,
Settlement Procedures "B" and "C" shall be completed as soon as such rate has
been determined but no later than 2:00 p.m. on the second Business Day
immediately preceding the Settlement Date. Settlement Procedure "H" is subject
to extension in accordance with any extension of Fedwire closing deadlines and
in the other events specified in the SDFS operating procedures in effect on the
Settlement Date.
If settlement of a Book-Entry Security is rescheduled or canceled, the
Trustee, upon obtaining knowledge thereof, will deliver to the Depositary,
through the Depositary's Participant Terminal System, a cancellation message to
such effect by no later than 2:00 p.m. on the Business Day immediately
preceding the scheduled Settlement Date.
Failure to Settle:
If the Trustee fails to enter an SDFS deliver order with respect to a
Book-Entry Security pursuant to Settlement Procedure "F", the Trustee may
deliver to the Depositary, through the Depositary's Participant Terminal
System, as soon as practicable a withdrawal message instructing the Depositary
to debit such Book-Entry Security to the Trustee's participant account,
provided that the Trustee's participant account contains a principal amount of
the Global Security representing such Book-Entry Security that is at least
equal to the principal amount to be debited. If a withdrawal message is
processed with respect to all the Book-Entry Securities represented by a Global
Security, the Trustee will mark such Global Security "canceled", make
appropriate entries in the Trustee's records and send such canceled Global
Security to the Company. The CUSIP number assigned to such Global Security
shall, in accordance with CUSIP Service Bureau procedures, be canceled and not
immediately reassigned. If a withdrawal message is processed with respect to
one or more, but not all, of the Book-Entry Securities represented by a Global
Security, the Trustee will exchange such Global Security for two Global
Securities, one of which shall represent such Book-Entry Security or Securities
and shall be canceled immediately after issuance and the other of which shall
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<PAGE>
represent the remaining Book-Entry Securities previously represented by the
surrendered Global Security and shall bear the CUSIP number of the surrendered
Global Security.
If the purchase price for any Book-Entry Security is not timely paid to
the participants with respect to such Book-Entry Security by the beneficial
purchaser thereof (or a person, including an indirect participant in the
Depositary, acting on behalf of such purchaser), such participants and, in
turn, the Agent for such Book-Entry Security may enter deliver orders through
the Depositary's Participant Terminal System debiting such Book-Entry Security
to such participant's account and crediting such Book-Entry Security to such
Agent's account and then debiting such Book-Entry Security to such Agent's
participant account and crediting such Book-Entry Security to the Trustee's
participant account and shall notify the Company and the Trustee thereof.
Thereafter, the Trustee will (i) immediately notify the Company of such order
and the Company shall transfer to such Agent funds available for immediate use
in an amount equal to the price of such Book-Entry Security which was credited
to the account of the Company maintained at the Trustee in accordance with
Settlement Procedure I, and (ii) deliver the withdrawal message and take the
related actions described in the preceding paragraph. If such failure shall
have occurred for any reason other than default by the applicable Agent to
perform its obligations hereunder or under the Distribution Agreement, the
Company will reimburse such Agent on an equitable basis for the loss of its use
of funds during the period when the funds were credited to the account of the
Company.
Notwithstanding the foregoing, upon any failure to settle with respect to
a Book-Entry Security, the Depositary may take any actions in accordance with
its SDFS operating procedures then in effect. In the event of a failure to
settle with respect to one or more, but not all, of the Book-Entry Securities
to have been represented by a Global Security, the Trustee will provide, in
accordance with Settlement Procedure "D", for the authentication and issuance
of a Global Security representing the other Book-Entry Securities to have been
represented by such Global Security and will make appropriate entries in its
records. The Company will, from time to time, furnish the Trustee with a
sufficient quantity of Securities.
PART II: ADMINISTRATIVE PROCEDURE FOR CERTIFICATED
SECURITIES
Posting Rates by Company:
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<PAGE>
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Certificated Securities
that may be sold as a result of the solicitation of offers by an Agent. The
Company may establish a fixed set of interest rates and maturities for an
offering period ("posting"). If the Company decides to change already posted
rates, it will promptly advise the Agents to suspend solicitation of offers
until the new posted rates have been established with the Agents.
Acceptance of Offers by Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Certificated Securities,
other than those rejected by such Agent. Each Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part. Each
Agent also may make offers to the Company to purchase Certificated Securities
as a Purchasing Agent. The Company will have the sole right to accept offers to
purchase Certificated Securities and may reject any such offer in whole or in
part.
The Company will promptly notify the Selling Agent or Purchasing Agent, as
the case may be, of its acceptance or rejection of an offer to purchase
Certificated Securities. If the Company accepts an offer to purchase
Certificated Securities, it will confirm such acceptance in writing to the
Selling Agent or Purchasing Agent, as the case may be, and the Trustee.
Communication of Sale Information to Company by Agent:
After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate the following details of
the terms of such offer (the "Sale Information") to the Company by telephone
(confirmed in writing) or by facsimile transmission or other acceptable written
means:
(1) Principal Amount of Certificated Securities to be purchased;
(2) If a Fixed Rate Certificated Security, the interest rate and
initial interest payment date;
(3) Trade Date;
(4) Settlement Date;
(5) Maturity Date;
II-10
<PAGE>
(6) Specified Currency and, if the Specified Currency is other than
U.S. dollars, the applicable Exchange Rate for such Specified Currency;
(7) Indexed Currency, the Base Rate and the Exchange Rate
Determination Date, if applicable;
(8) Issue Price;
(9) Selling Agent's commission or Purchasing Agent's discount, as the
case may be;
(10) Net Proceeds to the Company;
(11) If a redeemable Certificated Security, such of the following as
are applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par), and
(iii) Amount (% of par) that the Redemption Price shall decline
(but not below par) on each anniversary of the Redemption
Commencement Date;
(12) If a Floating Rate Certificated Security, such of the following
as are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(13) Name, address and taxpayer identification number of the
registered owner(s);
II-11
<PAGE>
(14) Denomination of certificates to be delivered at settlement;
(15) Book-Entry Security or Certificated Security; and
(16) Selling Agent or Purchasing Agent.
Preparation of Pricing Supplement by Company:
If the Company accepts an offer to purchase a Certificated Security, it
will prepare a Pricing Supplement reflecting the terms of such Certificated
Security and arrange to have delivered to the Selling Agent or Purchasing
Agent, as the case may be, at least ten copies of such Pricing Supplement, not
later than 5:00 p.m., New York City time, on the Business Day following the
Trade Date, or if the Company and the purchaser agree to settlement on the date
of acceptance of such offer, not later than noon, New York City time, on such
date. The Company will arrange to have ten Pricing Supplements filed with the
Commission not later than the close of business of the Commission on the fifth
Business Day following the date on which such Pricing Supplement is first used.
Delivery of Confirmation and Prospectus to Purchaser by
Selling Agent:
The Selling Agent will deliver to the purchaser of a Certificated Security
a written confirmation of the sale and delivery and payment instructions. In
addition, the Selling Agent will deliver to such purchaser or its agent the
Prospectus as amended or supplemented (including the Pricing Supplement) in
relation to such Certificated Security prior to or together with the earlier of
the delivery to such purchaser or its agent of (a) the confirmation of sale or
(b) the Certificated Security.
Date of Settlement:
All offers of Certificated Securities solicited by a Selling Agent or made
by a Purchasing Agent and accepted by the Company will be settled on a date
(the "Settlement Date") which is the third Business Day after the date of
acceptance of such offer, unless the Company and the purchaser agree to
settlement (a) on another Business Day after the acceptance of such offer or
(b) with respect to an offer accepted by the Company prior to 10:00 a.m., New
York City time, on the date of such acceptance.
II-12
<PAGE>
Instruction from Company to Trustee for Preparation of
Certificated Securities:
After receiving the Sale Information from the Selling Agent or Purchasing
Agent, as the case may be, the Company will communicate such Sale Information
to the Trustee by telephone (confirmed in writing) or by facsimile transmission
or other acceptable written means.
The Company will instruct the Trustee by facsimile transmission or other
acceptable written means to authenticate and deliver the Certificated
Securities no later than 2:15 p.m., New York City time, on the Settlement Date.
Such instruction will be given by the Company prior to 3:00 p.m., New York City
time, on the Business Day immediately preceding the Settlement Date unless the
Settlement Date is the date of acceptance by the Company of the offer to
purchase Certificated Securities in which case such instruction will be given
by the Company by 11:00 a.m., New York City time.
Preparation and Delivery of Certificated Securities by
Trustee and Receipt of Payment Therefor:
The Trustee will prepare each Certificated Security and appropriate
receipts that will serve as the documentary control of the transaction.
In the case of a sale of Certificated Securities to a purchaser solicited
by a Selling Agent, the Trustee will, by 2:15 p.m., New York City time, on the
Settlement Date, deliver the Certificated Securities to the Selling Agent for
the benefit of the purchaser of such Certificated Securities against delivery
by the Selling Agent of a receipt therefor. On the Settlement Date the Selling
Agent will deliver payment for such Certificated Securities in immediately
available funds to the Company in an amount equal to the issue price of the
Certificated Securities less the Selling Agent's commission; provided that the
Selling Agent reserves the right to withhold payment for which it has not
received funds from the purchaser. The Company shall not use any proceeds
advanced by a Selling Agent to acquire securities.
In the case of a sale of Certificated Securities to a Purchasing Agent,
the Trustee will, by 2:15 p.m., New York City time, on the Settlement Date,
deliver the Certificated Securities to the Purchasing Agent against delivery of
payment for such Certificated Securities in immediately available funds to the
Company in an amount equal to the issue price of the Certificated Securities
less the Purchasing Agent's discount.
Failure of Purchaser to Pay Selling Agent:
II-13
<PAGE>
If a purchaser (other than a Purchasing Agent) fails to make payment to
the Selling Agent for a Certificated Security, the Selling Agent will promptly
notify the Trustee and the Company thereof by telephone (confirmed in writing)
or by facsimile transmission or other acceptable written means. The Selling
Agent will immediately return the Certificated Security to the Trustee.
Immediately upon receipt of such Certificated Security by the Trustee, the
Company will return to the Selling Agent an amount equal to the amount
previously paid to the Company in respect of such Certificated Security. The
Company will reimburse the Selling Agent on an equitable basis for its loss of
the use of funds during the period when they were credited to the account of
the Company.
The Trustee will cancel the Certificated Security in respect of which the
failure occurred, make appropriate entries in its records and, unless otherwise
instructed by the Company, destroy the Certificated Security.
II-14
<PAGE>
ANNEX III
Pursuant to Section 6(b)(1) of the Distribution Agreement, Stephen D.
Wayne, Esq., Assistant General Counsel for the Company, shall furnish an
opinion to the relevant Agent that:
(1) 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 corporate power and authority to own its properties and conduct its
business as described in the Prospectus; and the Company is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct
of its business requires such qualification, except to the extent that
failure to so qualify would not materially adversely affect the operations
of the Company;
(2) The Company has an authorized capitalization as set forth in the
Prospectus as amended or supple mented and all of the issued shares of
capital stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable and all such shares are owned
directly or indirectly by Pitney Bowes Inc., free and clear of all liens,
encumbrances, security interests or claims;
(3) To the best of such counsel's knowledge and other than as set
forth or contemplated in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or to which any property of the Company or any of
its subsidiaries is subject, which, if determined adversely to the Company
or any of its subsidiaries, would individually or in the aggregate have a
material adverse effect on the current consolidated financial position,
stockholders' equity, results of operations or prospects of the Company
and its subsidiaries; and to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(4) Any series of Securities established on or prior to the date of
such opinion has been duly authorized and established in conformity with
the Indenture, and, when the terms of a particular Security and of its
issuance and sale have been duly authorized and established by all
necessary corporate action in conformity with the Indenture, and such
Security has been duly completed, executed, authenticated and issued
III-1
<PAGE>
in accordance with the Indenture and delivered against payment as
contemplated by the Distribution Agreement, such Security will constitute
a valid and legally binding obligation of the Company entitled to the
benefits provided by the Indenture, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles, it being understood that such counsel may assume that (a) at
the time of the issuance, sale and delivery of each Security the
authorization of such series will not have been modified or rescinded and
there will not have occurred any change in law affecting the validity,
legally binding character or enforceability of such Security and (b)
neither the issuance, sale and delivery of any Security, nor any of the
terms of such Security, nor compliance by the Company with such terms,
will violate any applicable law, any agreement or instrument then binding
upon the Company or any restriction imposed by any court or governmental
body having jurisdiction over the Company;
(5) The documents incorporated by reference in the Registration
Statement or 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, the Exchange Act or
the Trust Indenture Act, as applicable, and the rules and regulations
thereunder; and such counsel has no reason to believe that any of the
documents incorporated by reference in the Registration Statement or
Prospectus as amended or supplemented, 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;
(6) To the best of the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement or of any part
thereof has been issued and no proceedings for that purpose have been
III-2
<PAGE>
instituted or are pending or contemplated under the Act; although such
counsel does not assume responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus, such counsel has no reason to believe that the Registration
Statement, as of its effective date, the Registration Statement or the
Prospectus, as of the Commencement Date, or any such amendment or
supplement, as of its date, contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein
or necessary to make the statements therein not misleading; the
descriptions in the Registration Statement and the Prospectus of statutes,
legal and governmental proceedings and contracts and other documents are
accurate and fairly present the information required to be shown; and such
counsel does not know of any legal or governmental proceedings required to
be described in the Prospectus which are not described as required or of
any contracts or documents of a character required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as required; it
being understood that such counsel need express no opinion as to the
financial statements or other financial data contained in the Registration
Statement or the Prospectus;
(7) No consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court is required for the
consummation of the transactions contemplated by the Distribution
Agreement in connection with the issuance and sale of the Securities by
the Company, except that such counsel expresses no opinion with respect to
the Act, the Trust Indenture Act or state securities laws (it being
understood that such counsel may assume with respect to each particular
Security that the inclusion of any alternative or additional terms in such
Security that are not currently specified in the forms of Securities
examined by such counsel would not require the Company to obtain any
regulatory consent, authorization or approval or make any regulatory
filing in order for the Company to issue, sell and deliver such Security);
(8) Neither the Company nor any of its material subsidiaries is in
violation of its Certificate of Incorporation, as amended, or By-Laws or
in default in the performance or observance of any material obligation,
covenant or condition contained in any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which it is a
III-3
<PAGE>
party or by which it or any of its properties may be bound;
(9) The execution, delivery and performance of the Indenture, the
Distribution Agreement and the issuance and sale of the Securities, and
compliance with the terms and provisions thereof, will not result in a
breach or violation of any of the terms and provisions of, or constitute a
default under, any statute, any rule, regulation or order of any
governmental agency or body or any court having juris diction over the
Company or any significant subsidiary of the Company or any of their
properties or any agree ment or instrument to which the Company or any
such significant subsidiary is a party or by which the Company or any such
significant subsidiary is bound or to which any of the properties of the
Company or any such significant subsidiary is subject that in each case is
material to the Company and its subsidiaries, taken as a whole, or the
charter or by-laws of the Company or any such significant subsidiary, and
the Company has full power and authority to authorize, issue and sell the
Securities as contemplated by the Distribution Agreement (it being
understood that such counsel may assume with respect to each particular
Security that the inclusion of any alternative or additional terms in such
Security that are not currently specified in the form of Securities
examined by such counsel will not cause the issuance, sale or delivery of
such Security, the terms of such Security, or the compliance by the
Company with such terms, to violate any of the court orders or laws
specified in this paragraph or to result in a default under or a breach of
any of the agreements specified in this paragraph); and
(10) The Distribution Agreement and any applicable Terms Agreement
have been duly authorized, executed and delivered by the Company.
III-4
<PAGE>
ANNEX IV
Pursuant to Section 6(b)(2) of the Distribution Agreement, Davis Polk &
Wardwell, counsel for the Company, shall furnish an opinion to the relevant
Agent that:
(1) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware;
(2) The Indenture has been duly authorized, executed and delivered by
the Company and has been duly qualified under the Trust Indenture Act and
constitutes a valid and legally binding obligation of the Company
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorgani zation, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles;
(3) Any series of Securities established on or prior to the date of
such opinion has been duly authorized and established in conformity with
the Indenture, and, when the terms of a particular Security and of its
issuance and sale have been duly authorized and established by all
necessary corporate action in conformity with the Indenture, and such
Security has been duly completed, executed, authenticated and issued in
accordance with the Indenture and delivered against payment as
contemplated by the Distribution Agreement, such Security will constitute
a valid and legally binding obligation of the Company entitled to the
benefits provided by the Indenture, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles, it being understood that such counsel may (a) assume that at
the time of the issuance, sale and delivery of each Security the
authorization of such series will not have been modified or rescinded and
there will not have occurred any change in law affecting the validity,
legally binding character or enforceability of such Security, (b) assume
that neither the issuance, sale and delivery of any Security, nor any of
the terms of such Security, nor compliance by the Company with such terms,
will violate any applicable law, any agreement or instrument then binding
upon the Company or any restriction imposed by any court or governmental
body having jurisdiction over the Company, and (c) state that as of the
date of such opinion a judgment for money in an action based on Securities
denominated in foreign currencies or currency units in a Federal or State
IV-1
<PAGE>
court in the United States ordinarily would be enforced in the United
States only in United States dollars, and that the date used to determine
the rate of conversion of the foreign currency or currency unit in which a
particular Security is denominated into United States dollars will depend
upon various factors, including which court renders the judgment;
(4) The Distribution Agreement and any applicable Terms Agreement
have been duly authorized, executed and delivered by the Company;
(5) The Registration Statement, as of its effective date, the
Registration Statement and the Prospectus, as of the Commencement Date,
and any amendment or supplement thereto, as of its date (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, the Exchange Act or
the Trust Indenture Act, as applicable, and the rules and regulations
thereunder; although they do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained therein,
such counsel have no reason to believe that the Registration Statement, as
of its effective date, the Registration Statement or the Prospectus, as of
the Commencement Date, or any such amendment or supplement, as of its
date, contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to make
the statements therein not mis leading; it being understood that such
counsel need express no opinion as to the financial statements or other
financial data contained in the Registration Statement or the Prospectus
or as to Form T-1;
(6) The Registration Statement has become effective under the Act and
the Prospectus was filed with the Commission pursuant to the subparagraph
of Rule 424(b) under the Act specified in such opinion on the date
specified therein;
(7) All consents, approvals, authorizations or orders of, or filings
with, any governmental agency or body or any court that is required for
the consummation of the transactions contemplated by the Distribution
Agreement in connection with the issuance and sale of the Securities by
the Company under the Act and the Trust Indenture Act have been obtained
or made, as the case may be; and
IV-2
<PAGE>
(8) The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Prospectus, will not be required to register as an
"investment company", as such term is defined in the Investment Company
Act of 1940;
provided, however, that, in the case of each such opinion delivered pursuant to
a Terms Agreement, (x) the statements contained in such opinion relating to the
Registration Statement or the Prospectus shall relate to the Registration
Statement or the Prospectus, as the case may be, as amended or supplemented as
of the date of the Company's acceptance of the offer to purchase such
Securities and as of the time of delivery of such Securities; (y) such opinion
shall relate to the Securities being delivered on the date of such opinion and
not to other Securities as well; and (z) in lieu of the opinion described in
clause (3), such opinion shall state that the Securities being delivered on the
date of such opinion, when delivered against payment therefor as contemplated
by the Distribution Agreement, will have been duly executed, authenticated,
issued and delivered and will constitute valid and legally binding obligations
of the Company entitled to the benefits provided by the Indenture, enforceable
in accordance with their terms, subject only to the exceptions set forth in
clause (3) as to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and general equity principles, and will conform to the
description thereof contained in the Prospectus as amended or supplemented at
such date of delivery.
IV-3
<PAGE>
ANNEX V
Pursuant to Section 6(d) of the Distribution Agreement,
PricewaterhouseCoopers LLP shall furnish a letter to the relevant Agent to the
effect that:
(1) in their opinion, the financial statements and schedules and
summary of earnings, if any, examined by them and included in the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act and the related rules and regulations
adopted by the Commission;
(2) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing Standards No.
71, Interim Financial Information, on any unaudited financial statements
included in the Registration Statement;
(3) on the basis of the review, if any, referred to in clause (2)
above, a reading of the latest available interim financial statements of
the Company, inquiries of officials of the Company who have responsibility
for financial and accounting matters and other specified procedures,
nothing came to their attention that caused them to believe that:
(a) the unaudited financial statements, if any, and any summary
of earnings included in the Prospectus do not comply as to form in
all material respects with the applicable accounting requirements of
the Exchange Act as it applies to Form 10-Q and the related rules and
regulations adopted by the Commission or any material modifications
should be made to such unaudited financial statements and summary of
earnings for them to be in conformity with generally accepted
accounting principles;
(b) at the date of the latest available balance sheet read by
such accountants, or at a subsequent specified date not more than
three business days prior to the date of this Agreement, there was
any change in the capital stock or any increase in short-term debt or
long-term debt of the Company and its consolidated subsidiaries or,
at the date of the latest available balance sheet read by such
accountants, there was any decrease in net investment, total assets
or stockholders' equity, as compared with amounts shown on the latest
balance sheet included in the Prospectus; or
V-1
<PAGE>
(c) for the period from the closing date of the latest available
income statement included in the Prospectus to the closing date of
the latest available income statement read by such accountants there
were any decreases, as compared with (i) the corresponding period of
the previous year and (ii) the period of corresponding length ended
the date of the latest income statement included in the Prospectus,
in consolidated total revenues, income from continuing operations
before taxes or net income;
except in all cases set forth in clauses (b) and (c) above, for changes,
increases or decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(4) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Registration Statement (in each case to the extent that
such dollar amounts, percentages and other financial information are
derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's accounting
system or are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a reading of such
general accounting records and other procedures specified in such letter
and have found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as otherwise
specified in such letter.
All financial statements and schedules included in material incorporated
by reference into the Prospectus shall be deemed included in the Prospectus for
purposes of Section 6(d) of the Distribution Agreement and this Annex V.
In the case of each such letter delivered upon a filing on Form 10-K or
pursuant to a Terms Agreement, the statements contained in such letter relating
to the Registration Statement or the Prospectus shall relate to the
Registration Statement or the Prospectus, as the case may be, as amended or
supplemented as of the date of such filing or the Company's acceptance of the
offer to purchase such Securities, as the case may be, and as of the time of
delivery of such Securities.
V-2
EXHIBIT 2.a
[Form of Fixed Rate
Permanent Global
Security]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, 55 WATER STREET, NEW YORK, NEW YORK (THE
"DEPOSITORY"), TO PITNEY BOWES CREDIT CORPORATION 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 DEPOSITORY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THIS
DEPOSITORY), 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.
CUSIP NO.
No. FXR- $
PITNEY BOWES CREDIT CORPORATION
MEDIUM-TERM NOTE, SERIES D
(Global Fixed Rate)
SPECIFIED CURRENCY: EXCHANGE RATE
AGENT:
ORIGINAL
ISSUE DATE: INTEREST RATE: MATURITY DATE:
REDEMPTION REDEMPTION
COMMENCEMENT DATE: PERIODS AND
PRICES:
REPAYMENT DATE: REPAYMENT
<PAGE>
PERIODS AND
PRICES:
AUTHORIZED DENOMINATIONS:
(Only applicable if Specified
Currency is other than U.S.
dollars)
OTHER/ADDITIONAL TERMS:
DEFAULT RATE:
(Only applic-
able if
Security issued
at original
issue discount)
OID DEFAULT
AMOUNT: (Only
applicable if
Security issued
at original
issue discount)
-2-
<PAGE>
PITNEY BOWES CREDIT CORPORATION, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company", which
term includes any successor Person under the Indenture hereinafter referred
to), for value received, hereby promises to pay to CEDE & Co., as nominee for
the Depositary, or registered assigns, the principal sum of
(any such
currency or composite currency being hereinafter referred to as a "Specified
Currency") on the Maturity Date shown above or, together with any premium
thereon, upon any applicable Redemption or Repayment Date specified above, and
to pay interest thereon from the Original Issue Date shown above or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on February 1 and August 1 of each year and on the
Maturity Date, commencing on the first such Interest Payment Date next
succeeding the Original Issue Date, provided that if the Original Issue Date is
after a Regular Record Date and before the Interest Payment Date immediately
following such Regular Record Date, interest payments will commence on the
Interest Payment Date following the next succeeding Regular Record Date, at the
rate per annum set forth above, until the principal hereof is paid or made
available for payment. 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 permanent global 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 January 15 or July 15
(whether or not a Market Day (as defined below)), as the case may be, next
preceding the February 1 and Auguat 1 Interest Payment Dates; provided,
however, that interest payable at maturity or upon earlier redemption or
repayment will be payable to the Person to whom principal shall be payable. 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 permanent global 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 of which shall be given to the Holder of this permanent global
Security 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 the series evidenced by this
permanent global Security may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture. As
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<PAGE>
used herein, the term "Depositary" shall mean the Depositary designated as such
by the Company under the Indenture described herein.
The term "Market Day" means (i) unless otherwise provided in this
definition, any day that is a Business Day (as defined below) in The City of
New York; (ii) if the Specified Currency shown above is not U.S. dollars or
euro, any day that is a Business Day both in The City of New York and in the
Principal Financial Center (as defined below) in the country of the Specified
Currency; and (iii) if the Specified Currency shown above is euro, any date
that is a Business Day in The City of New York that is designated as a euro
settlement day by the Euro Banking Association in Paris or otherwise generally
regarded in the euro interbank market as a day on which payments in euro are
made. The term "Business Day", when used with respect to any place, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that place are authorized or obligated by law to close.
The term "Principal Financial Center" as used herein means the capital city of
the country issuing the currency or composite currency in which payment in
respect of this Security is to be made, except that with respect to U.S.
dollars, Australian dollars, Canadian dollars, Deutsche marks, Italian lira,
Swiss francs, Dutch guilders, Portuguese escudos, South African rand and euros,
the Principal Financial Center shall be The City of New York, Sydney, Toronto,
Frankfurt, Milan, Zurich, Amsterdam, London, Johannesburg and Luxembourg,
respectively.
Payment of principal of (and premium, if any) and interest on this
permanent global Security will be made in U.S. dollars unless the Holder elects
to receive all or part of such payments in such Specified Currency. A Holder of
a permanent global Security denominated in a Specified Currency other than U.S.
dollars may so elect by delivering a written request to the Paying Agent, on or
prior to the applicable Record Date or the date fifteen calendar days prior to
maturity or earlier redemption or repayment, as the case may be. Such written
request may be in writing (mailed or hand delivered) or by cable, telex or
other form of facsimile transmission. Such election shall remain in effect
unless such request is revoked on or prior to the applicable Record Date or the
date fifteen days prior to maturity, redemption or repayment, as the case may
be.
Payments in U.S. dollars, in respect of a Security denominated in a
Specified Currency other than U.S. dollars, will be based upon the exchange
rate as determined by the
-4-
<PAGE>
Exchange Rate Agent based on the highest firm bid quotation for U.S. dollars
received by such Exchange Rate Agent as of 11:00 A.M., New York City time, on
the second Business Day next preceding the applicable payment date from three
recog nized foreign exchange dealers, for settlement on such payment date of
the aggregate amount of the Specified Currency payable to all Holders of
permanent global Securities denominated in such Specified Currency electing to
receive U.S. dollar payments and at which the applicable dealer commits to
execute a contract. All currency exchange costs will be borne by the Holders of
such permanent global Securities by deductions from such payments. If three
such bid quotations are not available on the second Business Day preceding the
payment of principal (and premium, if any) or interest with respect to any
permanent global Security, such payment will be made in the Specified Currency.
Payment of principal of (and premium, if any) and interest due on this
permanent global Security will be made to the Depositary or its nominee, as the
case may be, as the sole registered owner and the sole Holder of this permanent
global Security for all purposes under the Indenture.
Unless otherwise specified above, payments of interest and principal (and
premium, if any) with respect to any permanent global Security made in a
Specified Currency other than U.S. dollars will be made by wire transfer in
immediately available funds to an account with a bank located in the country
issuing the Specified Currency (or, with respect to Securities denominated in
euros, a euro account) or other jurisdiction acceptable to the Company and the
Paying Agent as shall have been designated on or before the fifth Business Day
after the Regular Record Date with respect to a payment of interest or on or
before the fifteenth day before the stated maturity, redemption or repayment
date, as the case may be, by the registered Holder of this permanent global
Security on the relevant Regular Record Date or maturity, redemption or
repayment date, provided that, in the case of payment of principal of (and
premium, if any) and any interest due at maturity or upon earlier redemption or
repayment, this permanent global Security is presented to the Paying Agent in
time for the Paying Agent to make such payments in such funds in accordance
with its normal procedures. Such designation shall be made by filing the
appropriate information with the Trustee at its Corporate Trust Office in
Atlanta, Georgia, and, unless revoked, any such designation made with respect
to any permanent global Security by a registered Holder will remain in effect
with respect to any further payments with respect to this permanent global
Security payable to such Holder. If a payment with respect to this permanent
global
-5-
<PAGE>
Security cannot be made by wire transfer because the required designation has
not been received by the Trustee on or before the requisite date or for any
other reason, a notice will be mailed to the Holder at its registered address
requesting a designation pursuant to which such wire transfer can be made and,
upon the Trustee's receipt of such a designation, such payment will be made
within 5 days of such receipt. The Company will pay any administrative costs
imposed by banks in connection with making payments by wire transfer, but any
tax, assessment or governmental charge imposed upon payment will be borne by
the Holder hereof in respect of which payments are made.
If the Specified Currency is not available due to the imposition of
exchange controls or other circumstances beyond the Company's control, then the
Company will be entitled to satisfy its obligations to Holders by making
payments in U.S. dollars on the basis of the most recently available Exchange
Rate. The "Exchange Rate" means the noon buying rate in The City of New York
for cable transfers for the relevant Specified Currency. Any payment made under
such circumstances in U.S. dollars where the required payment is other than
U.S. dollars will not constitute an Event of Default under the Indenture.
This permanent global Security is exchangeable or transferable in whole or
from time to time in part for Securities of this series in definitive
registered form only as provided in this paragraph. If (i) the Depositary
notifies the Company that it is unwilling or unable to continue as Depositary
for this 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) the Company in its sole discretion determines that this permanent
global Security shall be so exchangeable or transferable for Securities of this
series in definitive registered form and executes and delivers to the Security
Registrar a Company Order providing that this permanent global Security shall
be so exchangeable or transferable, (iii) an event shall have happened 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 this permanent
global Security is a part, or (iv) there shall exist such other circumstances,
if any, in addition to or in lieu of those specified in clauses (i), (ii) and
(iii) as are specified above, this permanent global Security shall be
exchangeable for Securities of this series in definitive registered form,
provided that the definitive Securities so issued in exchange for this
permanent global Security shall be in denominations of $1,000 and any integral
multiples thereof or, if this permanent global
-6-
<PAGE>
Security is denominated in a Specified Currency, in the denominations indicated
above, and be of like aggregate principal amount and tenor as the portion of
this permanent global Security to be exchanged. Except as provided above,
owners of beneficial interests in this permanent global Security will not be
entitled to receive physical delivery of Securities in definitive registered
form and will not be considered the Holders thereof for any purpose under the
Indenture.
Upon exchange of any portion of this permanent global Security for one or
more Securities of this series in definitive registered form, the Trustee or
the Security Registrar, as the case may be, shall cancel this permanent global
Security and issue a new permanent global Security or Securities of this Series
and of like tenor for the remaining principal amount. Except as otherwise
provided herein or in the Indenture, until exchanged in full for one or more
Securities of this series in definitive registered form, this permanent global
Security shall in all respects be subject to and entitled to the same benefits
and conditions under the Indenture as a duly authenticated and delivered
Security of this series in definitive registered form.
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 or by its Authenticating Agent by manual signature, this permanent
global Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
-7-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: PITNEY BOWES CREDIT CORPORATION
By______________________________
Title:
Attest__________________________
Title:
[SEAL]
[SEAL]
CERTIFICATE OF AUTHENTICATION
This is one of the Securities
of the series designated therein
referred to in the within-
mentioned Indenture
SUNTRUST BANK,ATLANTA, As Trustee
By______________________________
Authorized Officer
-8-
<PAGE>
[Form of Reverse of Security]
PITNEY BOWES CREDIT CORPORATION
MEDIUM-TERM NOTE, SERIES D
(Fixed Rate)
This Security is a permanent global Security evi dencing a portion 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 July 31, 1999 (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 permanent global Security represents a
portion of the Securities of the series designated on the face hereof. The
Securities of this series may be issued from time to time in an aggregate
principal amount of up to $500,000,000 or its equivalent in other currencies or
composite currencies, may mature at different times, bear interest, if any, at
different rates, be redeemable at different times or not at all, be issued at
an original issue discount, and be denominated in different currencies.
Interest payments for this permanent global Secu rity will include
interest accrued to but excluding the Interest Payment Dates or date of
maturity, redemption or repayment, as the case may be. Unless otherwise
indicated on the face hereof, interest payments for this permanent global
Security shall be computed and paid on the basis of a 360-day year of twelve
30-day months.
If any Interest Payment Date or the Maturity Date (or date of redemption
or repayment) of this permanent global Security falls on a day that is not a
Business Day, the required payment of principal, premium, if any, and/or
interest will be made on the next succeeding Business Day as if made on the
date such payment was due, and no interest will accrue on such payment for the
period from and after such Interest Payment Date or the Maturity Date (or date
of redemption or repayment), as the case may be, to the date of such payment on
the next succeeding Business Day.
This permanent global Security is not subject to redemption prior to the
Maturity Date shown above unless a Redemption Commencement Date and Redemption
Periods and
-9-
<PAGE>
Redemption Prices are specified above. If so specified, this permanent global
Security is subject to redemption upon not less than 30 nor more than 60 days'
notice by mail, as a whole or in part, at the election of the Company, during
the Redemption Periods and at the Redemption Prices specified on the face
hereof, plus interest accrued to the Redemption Date, but interest installments
whose Stated Maturity is on or prior to such Redemption Date will be payable to
the Holder of this permanent global Security, or one or more Predecessor
Securities, of record at the close of business on the relevant Regular Record
Dates referred to above, all as provided in the Indenture.
In the event of redemption of this permanent global Security in part only,
a new permanent global Security or Securities of this series and of like tenor
and for a principal amount equal to the unredeemed portion will be delivered to
the Depositary upon the cancellation hereof.
This permanent global Security is not subject to repayment prior to the
Maturity Date shown above unless a Repayment Date, Repayment Periods and
Repayment Prices are specified above. If so specified, this permanent global
Security is subject to repayment at the option of the Holder hereof upon the
terms set forth above.
In the event of repayment of this permanent global Security in part only,
a new Security or Securities of this series and of like tenor and for a
principal amount equal to the unpaid portion will be issued to the registered
Holder upon the cancellation hereof.
If an Event of Default with respect to the Secu rities of this series
shall occur and be continuing, the principal of the Securities of this series
(including this permanent global Security and the interests represented hereby)
may be declared due and payable in the manner and with the effect provided in
the Indenture.
The Indenture contains provisions for defeasance at any time of (i) the
entire indebtedness of this Security or (ii) certain restrictive covenants with
respect to this Security, in each case upon compliance with certain conditions
set forth in the Indenture.
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 not less than
-10-
<PAGE>
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 permanent global
Security shall be conclusive and binding upon such Holder and upon all future
Holders of this permanent global Security and of any Security or Securities
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 permanent global Security.
No reference herein to the Indenture and no provi sion of this permanent
global 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 permanent global Security at the times,
places and rate, and in the coin or currency, herein prescribed.
This permanent global Security may not be trans ferred except as a whole
by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor of the
Depositary or a nominee of such successor.
If this Security is issued with an original issue discount, (i) if an
Event of Default with respect to the Securities shall have occurred and be
continuing, the amount of principal of this Security which may be declared due
and payable in the manner, with the effect and subject to the conditions
provided in the Indenture, shall be determined in the manner set forth under
"OID Default Amount" on the face hereof, and (ii) in the case of a default of
payment in principal upon acceleration, redemption or at maturity hereof, in
lieu of any interest otherwise payable, the overdue principal of this Security
shall bear interest at a rate of interest per annum equal to the Default Rate
stated on the face hereof (to the extent that the payment of such interest
shall be legally enforceable), which shall accrue from the date of such
acceleration, redemption or maturity, as the case may be, to the date payment
has been made or duly provided for or such default has been waived in
accordance with the terms of the Indenture.
The Securities of this Series may be issued in registered form, without
coupons, in denominations of $1,000
-11-
<PAGE>
and any integral multiples thereof or, if this Security is denominated in a
Specified Currency, in the denominations indicated on the face hereof, unless
otherwise specified above.
No service charge shall be made for any reg istration of transfer or
exchange of Securities as provided above, but the Company may require payment
of a sum suffi cient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security of this series 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 permanent global Security is
registered as the owner hereof for all purposes, whether or not this permanent
global Security is overdue, and neither the Company, the Trustee nor any such
agent shall be affected by notice to the contrary.
All terms used in this permanent global Security which are defined in the
Indenture and not herein otherwise defined shall have the meanings assigned to
them in the Indenture.
-12-
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT - _________Custodian__________
(Cust) (Minor)
Uniform Gifts to Minors Act
----------------------------
(State)
Additional abbreviations may also be used though not in the
above list.
-----------------------------
-13-
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Print or Type Name and Address including Zip Code of Assignee)
- -------------------------------------------------------------------------------
the within permanent global Security, and all rights
thereunder, hereby irrevocably constituting and appointing
___________________________________________________ attorney to transfer said
permanent global Security on the books of the Company, with full power of
substitution in the premises.
Dated: ____________________
[NOTE: The signature to this assignment must correspond with the name
as written upon the face of the within permanent global Security in every
partic ular without alteration or enlargement or any change whatsoever and
must be guaranteed by a commercial bank or trust company having its
principal office or corres pondent in The City of New York or by a member
of the New York Stock Exchange.]
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<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company to
repay the within Security (or portion thereof specified below) pursuant to its
terms at the applicable Repayment Price, together with interest to the
Repayment Date, to the undersigned at
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Please Print or Typewrite Name and Address of the Undersigned)
and specify the denomination or denominations (which shall not be less than the
minimum authorized denomination) of the Securities to be issued to the
undersigned for the portion of the within Security not being repaid (in the
absence of any such specification, one such Security will be issued for the
portion not being repaid):__________________________.
Dated:_____________________ ______________________________
______________________________
NOTICE: The signature to this assignment must correspond with
the name as written upon the within Security in every particular, without
alteration or enlargement or any change whatever.
-15-
EXHIBIT 2.b
[Form of Floating
Rate Permanent
Global Security - No
OID]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, 55 WATER STREET, NEW YORK, NEW YORK (THE
"DEPOSITORY"), TO PITNEY BOWES CREDIT CORPORATION 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 DEPOSITORY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THIS
DEPOSITORY), 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.
CUSIP NO.
No. FLR- $
PITNEY BOWES CREDIT CORPORATION
MEDIUM-TERM NOTE, SERIES D
(Global Floating Rate)
SPECIFIED CURRENCY: EXCHANGE RATE
AGENT:
ORIGINAL INITIAL MATURITY
ISSUE DATE: INTEREST RATE: DATE:
AUTHORIZED DENOMINATIONS:
(only applicable if Specified
-1-
<PAGE>
Currency is other than U.S.
dollars)
INDEX CURRENCY (if other than
U.S. dollars):
INDEX MATURITY: SPREAD (plus
or minus):
INTEREST RATE SPREAD
BASIS: MULTIPLIER:
INTEREST RESET MAXIMUM
PERIOD: INTEREST RATE:
INTEREST PAYMENT MINIMUM
DATES: INTEREST RATE:
REGULAR RECORD
DATES:
INTEREST CALCULATION
RESET DATES: DATES:
INTEREST CALCULATION
DETERMINATION DATES: AGENT:
REDEMPTION REDEMPTION
COMMENCEMENT DATE: PERIODS AND
PRICES:
REPAYMENT DATE: REPAYMENT
PERIODS AND
PRICES:
OTHER/ADDITIONAL TERMS:
-2-
<PAGE>
PITNEY BOWES CREDIT CORPORATION, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company", which
term includes any successor Person under the Indenture hereinafter referred
to), for value received, hereby promises to pay to CEDE & Co., as nominee for
the Depositary, or registered assigns, the principal sum of
(any
such currency or composite currency being hereinafter referred to as a
"Specified Currency") on the Maturity Date shown above or, together with any
premium thereon, upon any applicable Redemption or Repayment Date specified
above, and to pay Interest thereon from the Original Issue Date shown above or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, on the Interest Payment Dates set forth above and on the
Maturity Date, commencing on the first such Interest Payment Date next
succeeding the Original Issue Date, provided that if the Original Issue Date is
after a Regular Record Date and before the Interest Payment Date immediately
following such Regular Record Date, interest payments will commence on the
Interest Payment Date following the next succeeding Regular Record Date, at the
rate per annum determined in accordance with the provisions hereinafter set
forth, depending on the Interest Rate Basis specified above, until the
principal hereof is paid or made available for payment. 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
permanent global 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 fifteenth calendar day (whether or not a Market Day (as defined
below)), next preceding each Interest Payment Date; provided, however, that
interest payable at maturity or upon earlier redemption or repayment will be
payable to the Person to whom principal shall be payable. 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 permanent global 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 of
which shall be given to the Holder of this permanent global Security not more
than 15 days and 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 this
-3-
<PAGE>
permanent global Security may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
The term "Market Day" means (i) unless otherwise provided in this
definition, any day that is a Business Day (as defined below) in The City of
New York; (ii) if the Interest Rate Basis specified above is LIBOR, any
Business Day in The City of New York that is also a London Business Day (as
defined below); (iii) if the Specified Currency shown above is not U.S. dollars
or euro, any day that is a Business Day both in The City of New York and in the
Principal Financial Center (as defined below) in the country of the Specified
Currency; and (iv) if the Specified Currency shown above is euro, any date that
is a Business Day in The City of New York that is designated as a euro
settlement day by the Euro Banking Association in Paris or otherwise generally
regarded in the euro interbank market as a day on which payments in euro are
made. The term "Business Day", when used with respect to any place, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that place are authorized or obligated by law to close.
The term "London Business Day" means any day on which dealings in deposits in
U.S. dollars are transacted in the London interbank market. The term "Principal
Financial Center" as used herein means the capital city of the country issuing
the currency or composite currency in which payment in respect of this Security
is to be made, except that with respect to U.S. dollars, Australian dollars,
Canadian dollars, Deutsche marks, Italian lira, Swiss francs, Dutch guilders,
Portuguese escudos, South African rand and euros, the Principal Financial
Center shall be The City of New York, Sydney, Toronto, Frankfurt, Milan,
Zurich, Amsterdam, London, Johannesburg and Luxembourg, respectively.
Payment of principal of (and premium, if any) and interest on this
permanent global Security will be made in U.S. dollars unless the Holder elects
to receive all or part of such payments in such Specified Currency. A Holder of
a permanent global Security denominated in a Specified Currency other than U.S.
dollars may so elect by delivery of a written request to the Paying Agent, on
or prior to the applicable Record Date or the date fifteen calendar days prior
to maturity or earlier redemption or repayment, as the case may be. Such
written request may be in writing (mailed or hand delivered) or by cable, telex
or other form of facsimile transmission. Such election shall remain in effect
unless such request is revoked on or prior to the applicable Record Date or the
date fifteen days prior to
-4-
<PAGE>
maturity or earlier redemption or repayment, as the case may be.
Payments in U.S. dollars, in respect of a Security denominated in a
Specified Currency other than U.S. dollars, will be based upon the exchange
rate as determined by the Exchange Rate Agent based on the highest firm bid
quotation for U.S. dollars received by such Exchange Rate Agent as of 11:00
A.M., New York City time, on the second Business Day next preceding the
applicable payment date from three recog nized foreign exchange dealers, for
settlement on such payment date of the aggregate amount of the Specified
Currency payable to all Holders of permanent global Securities denominated in
such Specified Currency electing to receive U.S. dollar payments and at which
the applicable dealer commits to execute a contract. All currency exchange
costs will be borne by the Holders of such permanent global Securities by
deductions from such payments. If three such bid quotations are not available
on the second Business Day preceding the payment of principal (and premium, if
any) or interest with respect to any permanent global Security, such payment
will be made in the Specified Currency.
Payment of principal of (and premium, if any) and interest due on this
permanent global Security will be made to the Depositary or its nominee, as the
case may be, as the sole registered owner and the sole Holder of this permanent
global Security for all purposes under the Indenture.
Unless otherwise specified above, payments of interest and principal (and
premium, if any) with respect to any permanent global Security made in a
Specified Currency other than U.S. dollars will be made by wire transfer in
immediately available funds to an account with a bank located in the country
issuing the Specified Currency (or, with respect to permanent global Securities
denominated in euros, a euro account) or other jurisdiction acceptable to the
Company and the Paying Agent as shall have been designated on or before the
fifth Business Day after the Regular Record Date with respect to a payment of
interest or on or before the stated maturity, redemption or repayment date, as
the case may be, by the registered Holder of this permanent global Security on
the relevant Regular Record Date or maturity, redemption or repayment date,
provided that, in the case of payment of principal of (and premium, if any) and
any interest due at maturity or upon earlier redemption or repayment, this
permanent global Security is presented to the Paying Agent in time for the
Paying Agent to make such payments in such funds in accordance with its normal
procedures. Such designation shall be made by filing the appropriate
information with the Trustee at its
-5-
<PAGE>
Corporate Trust Office in Atlanta, Georgia, and, unless revoked, any such
designation made with respect to any Secu rity by a registered Holder will
remain in effect with respect to any further payments with respect to this
Security payable to such Holder. If a payment with respect to this Security
cannot be made by wire transfer because the required designation has not been
received by the Trustee on or before the requisite date or for any other
reason, a notice will be mailed to the Holder at its registered address
requesting a designation pursuant to which such wire transfer can be made and,
upon the Trustee's receipt of such a designation, such payment will be made
within 5 days of such receipt. The Company will pay any administrative costs
imposed by banks in connection with making payments by wire transfer, but any
tax, assessment or governmental charge imposed upon payment will be borne by
the Holder hereof in respect of which payments are made.
If the Specified Currency is not available due to the imposition of
exchange controls or other circumstances beyond the Company's control, then the
Company will be entitled to satisfy its obligations to Holders by making
payments in U.S. dollars on the basis of the most recently available Exchange
Rate. The "Exchange Rate" means the noon buying rate in The City of New York
for cable transfers for the relevant Specified Currency. Any payment made under
such circumstances in U.S. dollars where the required payment is other than
U.S. dollars will not constitute an Event of Default under the Indenture.
This permanent global Security is exchangeable or transferable in whole or
from time to time in part for Securities of this series in definitive
registered form only as provided in this paragraph. If (i) the Depositary
notifies the Company that it is unwilling or unable to continue as Depositary
for this 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, or other applicable statute or regulation, (ii) the Company in its
sole discretion determines that this permanent global Security shall be so
exchangeable or transferable for Securities of this series in definitive
registered form and executes and delivers to the Security Registrar a Company
Order providing that this permanent global Security shall be so exchangeable or
transferable, (iii) an event shall have happened 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 this permanent global Security is a
part, or (iv) there shall exist such other circumstances, if any, in addition
to or in lieu of those specified in clauses (i),
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<PAGE>
(ii) and (iii) as are specified above, this permanent global Security shall be
exchangeable for Securities of this series in definitive registered form,
provided that the definitive Securities so issued in exchange for this
permanent global Security shall be in denominations of $1,000 and any integral
multiples thereof or, if this Security is denominated in a Specified Currency,
in the denominations indicated above, and be of like aggregate principal amount
and tenor as the portion of this permanent global Security to be exchanged.
Except as provided above, owners of beneficial interests in this permanent
global Security will not be entitled to receive physical delivery of Securities
in definitive registered form and will not be considered the Holders thereof
for any purpose under the Indenture.
Upon exchange of any portion of this permanent global Security for one or
more Securities of this series in definitive registered form, the Trustee or
the Security Registrar, as the case may be, shall cancel this permanent global
Security and issue a new permanent global Security or Securities of this Series
and of like tenor for the remaining principal amount. Except as otherwise
provided herein or in the Indenture, until exchanged in full for one or more
Securities of this series in definitive registered form, this permanent global
Security shall in all respects be subject to and entitled to the same benefits
and conditions under the Indenture as a duly authenticated and delivered
Security of this series in definitive registered form.
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 or by its Authenticating Agent by manual signature, this permanent
global Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
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<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: PITNEY BOWES CREDIT CORPORATION
By______________________________
Title:
Attest__________________________
Title:
[SEAL]
CERTIFICATE OF AUTHENTICATION
This is one of the permanent
global Securities of the series
designated therein referred to
in the within-mentioned Indenture
SUNTRUST BANK, ATLANTA, as Trustee
By______________________________
Authorized Officer
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<PAGE>
[Form of Reverse of Security]
PITNEY BOWES CREDIT CORPORATION
MEDIUM-TERM NOTE, SERIES D
(Floating Rate)
This Security is a permanent global Security evidencing a portion 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 July 31, 1999 (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 permanent global Security represents a
portion of the Securities of the series designated on the face hereof. The
Securities of this series may be issued from time to time in an aggregate
principal amount of up to $500,000,000 or its equivalent in other currencies or
composite currencies, may mature at different times, bear interest, if any, at
different rates, be redeemable at different times or not at all, be issued at
an original issue discount, and be denominated in different currencies.
If the Maturity Date (or date of redemption or repayment) of this
permanent Global Security falls on a day that is not a Market Day, the required
payment of principal, premium, if any, and interest will be made on the next
succeeding Market Day or, if the Interest Rate Basis specified on the face
hereof is LIBOR and that day falls in the next calendar month, the next
preceding Market Day, as if made on the date such payment was due, and no
interest will accrue on such payment for the period from and after the Maturity
Date (or date of redemption or repayment) to the date of such payment on the
next succeeding Market Day.
This permanent global Security is not subject to redemption prior to the
Maturity Date shown above unless a Redemption Commencement Date and Redemption
Periods and Redemption Prices are specified above. If so specified, this
permanent global Security is subject to redemption upon not less than 30 nor
more than 60 days' notice by mail, as a whole or in part, at the election of
the Company, during the Redemption Periods and at the Redemption Prices
specified on
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the face hereof, plus interest accrued to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to such Redemption Date will
be payable to the Holder of this permanent global Security, or one or more
Predecessor permanent global Securities, of record at the close of business on
the relevant Record Dates referred to above, all as provided in the Indenture.
In the event of redemption of this permanent global Security in part only,
a new permanent global Security or Securities of this series and of like tenor
will be delivered to the Depositary upon the cancellation hereof.
This permanent global Security is not subject to repayment prior to the
Maturity Date shown above unless a Repayment Date, Repayment Periods and
Repayment Prices are specified above. If so specified, this Security is subject
to repayment at the option of the Holder hereof upon the terms set forth above.
In the event of repayment of this permanent global Security in part only,
a new Security or Securities of this series and of like tenor and for a
principal amount equal to the unpaid portion will be issued to the registered
Holder upon the cancellation hereof.
The interest rate payable on this permanent global Security will be
calculated by reference to the Interest Rate Basis specified above (a) plus or
minus the Spread specified above, if any, or (b) multiplied by the Spread
Multiplier specified above, if any. The Interest Rate Basis may be: (a) the
Commercial Paper Rate, (b) the Prime Rate, (c) LIBOR (this permanent global
Security being a "LIBOR Security"), (d) the Treasury Rate, (e) the CD Rate, (f)
the Federal Funds Rate, (g) the CMT Rate or (h) such other interest rate basis
or formula as is specified on the face hereof, as specified above. The "Index
Maturity" is the period to maturity of the instrument or obligation from which
the Interest Rate Basis is calculated, as specified above.
All percentages resulting from any calculation on this permanent global
Security will be rounded to the nearest one hundred-thousandth of a percentage
point, with five-one millionths of a percentage point rounded upwards (e.g.,
9.876545% (or .09876545) would be rounded to 9.87655% (or .0987655)), and all
amounts used in or resulting from such calculation on this Security will be
rounded, in the case of U.S. dollars, to the nearest cent or, in the case of
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<PAGE>
a foreign currency or composite currency, to the nearest unit (with one-half
cent or unit being rounded upwards).
Unless otherwise specified above, the "Regular Record Date" with respect
to this permanent global Security shall be the date 15 calendar days prior to
each Interest Payment Date, whether or not such date shall be a Market Day, and
interest will be payable, in the case of permanent global Securities which
reset daily, weekly or monthly, on the third Wednesday of each month or on the
third Wednesday of March, June, September and December of each year (as
specified above); which reset quarterly, on the third Wednesday of March, June,
September and December of each year; which reset semi-annually, on the third
Wednesday of the two months of each year specified above; and which reset
annually, on the third Wednesday of the month specified above (each an
"Interest Payment Date"); and in each case, at maturity or upon earlier
redemption or repayment.
Payments of interest with respect to any Interest Payment Date will
include interest accrued to but excluding such Interest Payment Date or date of
maturity, redemption or repayment, as the case may be. Accrued interest from
the Original Issue Date or from the last date to which interest has been paid
is calculated by multiplying the face amount of this permanent global Security
by an accrued interest factor, computed by adding the interest factor
calculated for each day from such starting date to but excluding the date for
which accrued interest is being calculated. The interest factor (expressed as a
decimal) for each such day is computed by dividing the interest rate (expressed
as a decimal) applicable to such day by 360 or, in the case of a Treasury Rate
Security or CMT Rate Security, by the actual number of days in the year.
The rate of interest on this permanent global Security will be reset
daily, weekly, monthly, quarterly, semiannually or annually (each an "Interest
Reset Date"), as specified above. Unless otherwise specified above, the
Interest Reset Date will be, if this permanent global Security resets daily,
each Market Day; if this permanent global Security (other than a Treasury Rate
Security) resets weekly, the Wednesday of each week, or if this permanent
global Security is a Treasury Rate Security, the Tuesday of each week (except
as provided below); if this permanent global Security resets monthly, the third
Wednesday of each month; if this permanent global Security resets quarterly,
the third Wednesday of March, June, September and December; if this permanent
global Security resets semi-annually, the third Wednesday of two months of each
year, as specified above; and if this permanent global Security resets
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<PAGE>
annually, the third Wednesday of one month of each year, as specified above;
provided, however, that the interest rate in effect from the date of issue to
the first Interest Reset Date will be the Initial Interest Rate specified
above. If any Interest Reset Date would otherwise be a day that is not a Market
Day, the Interest Reset Date shall be postponed to the next day that is a
Market Day, except that if this permanent global Security is a LIBOR Security
and such Market Day is in the next succeeding calendar month, such Interest
Reset Date shall be the immediately preceding Market Day.
If any Interest Payment Date (other than at maturity, redemption or
repayment) specified above would otherwise fall on a day that is not a Market
Day, such Interest Payment Date shall be the next succeeding Market Day, or in
the case of a LIBOR Security, if such succeeding Market Day falls in the next
calendar month, such Interest Payment Date shall be the next preceding Market
Day.
The Interest Determination Date pertaining to an Interest Reset Date for a
Commercial Paper Rate Security (the "Commercial Paper Interest Determination
Date"), for a Prime Rate Security (the "Prime Rate Interest Determination
Date"), for a CD Rate Security (the "CD Rate Interest Determination Date"), for
a Federal Funds Rate Security (the "Federal Funds Interest Determination Date")
and for a CMT Rate Security (the "CMT Rate Interest Determination Date") will
be the second Market Day preceding such Interest Reset Date. The Interest
Determination Date pertaining to an Interest Reset Date for a LIBOR Security
(the "LIBOR Interest Determination Date") will be the second London Business
Day preceding the applicable Interest Reset Date. The Interest Determination
Date pertaining to an Interest Reset Date for a Treasury Rate Security (the
"Treasury Interest Determination Date") will be the day of the week in which
such Interest Reset Date falls on which Treasury bills would normally be
auctioned. Treasury bills are usually sold at auction on Monday of each week,
unless that day is a legal holiday, in which case the auction is normally held
on the following Tuesday, except that such auction may be held on the preceding
Friday. If, as the result of a legal holi day, an auction is so held on the
preceding Friday, such Friday will be the Treasury Interest Determination Date
pertaining to the Interest Reset Date occurring in the next succeeding week. If
an auction date shall fall on any Interest Reset Date for a Treasury Rate
Security, then such Interest Reset Date shall instead be the first Market Day
immediately following such auction date. Unless otherwise specified above, the
Calculation Date pertaining to any Interest Determination Date shall be the
earlier of (i) the
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<PAGE>
tenth calendar day after such Interest Determination Date, or, if such day is
not a Market Day, the next succeeding Market Day or (ii) the Market Day
immediately preceding the applicable Interest Payment Date or the Maturity
Date, as the case may be.
Determination of Commercial Paper Rate. If the Interest Rate Basis of this
Security is the Commercial Paper Rate, the interest rate with respect to any
Interest Reset Date shall equal the Money Market Yield (calculated as described
below) of the per annum rate (quoted on a bank discount basis) as of the
relevant Commercial Paper Interest Determination Date for commercial paper
having the Index Maturity shown above, as published by the Board of Governors
of the Federal Reserve System in "Statistical Release H.15(519), Selected
Interest Rates" or any successor publication of the Board of Governors of the
Federal Reserve System ("H.15(519)") under the heading "Commercial Paper--
Non-Financial". If that rate is not published before 3:00 P.M., New York City
time, on the relevant Calculation Date, then the Commercial Paper Rate with
respect to such Interest Reset Date shall be the Money Market Yield of such
rate on such Commercial Paper Interest Determination Date for commercial paper
having the Index Maturity specified above as available through the worldwide
web site of the Board of Governors of the Federal Reserve System at
http://www.bog.frb.fed.us/releases/h.15/update, or any successor site or
publication of the Board of Governors of the Federal Reserve System (the "H.15
Daily Update") under the heading "Commercial Paper--Non-financial". If by 3:00
P.M., New York City time, on such Calculation Date, such rate is not published
in either H.15(519) or H.15 Daily Update, the Commercial Paper Rate with
respect to such Interest Reset Date shall be calculated by the Calculation
Agent and shall be the Money Market Yield of the arithmetic mean of the offered
per annum rates as of 11:00 A.M., New York City time, on such Commercial Paper
Interest Determination Date, of three leading dealers of commercial paper in
The City of New York selected by the Calculation Agent (which may include one
or more of the agents named on the cover of the Company's Prospectus
Supplement, dated August 30, 1999, with respect to the series of Securities of
which this Security is one (the "Agents") or their affiliates) for commercial
paper of the Index Maturity shown above placed for an industrial issuer whose
senior unsecured bond rating is "AA", or the equivalent, from a nationally
recognized rating agency; provided, however, that if fewer than three dealers
selected as aforesaid by the Calculation Agent are quoting as mentioned above,
the Commercial Paper Rate with respect to such Interest Reset Date will be the
Commercial Paper Rate in effect hereon on such Commercial
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<PAGE>
Paper Interest Determination Date or, if such Interest Determination Date is
the first Interest Determination Date, the Initial Interest Rate specified on
the face hereof.
"Money Market Yield" shall be the yield (expressed as a percentage)
calculated in accordance with the following formula:
Money Market Yield = 100 x 360 x D
-------------
360 - (D x M)
where "D" refers to the per annum rate for commercial paper, quoted on a bank
discount basis and expressed as a decimal and "M" refers to the actual number
of days in the period for which accrued interest is being calculated.
Determination of Prime Rate. If the Interest Rate Basis of this Security
is the Prime Rate, the interest rate with respect to any Interest Reset Date
shall equal the rate set forth for the relevant Prime Rate Interest
Determination Date in H.15(519) under the heading "Bank Prime Loan" (or any
successor heading). In the event that such rate is not published prior to 9:00
A.M., New York City time, on the relevant Calculation Date, then the Prime Rate
with respect to such Interest Reset Date shall be the rate on such Prime Rate
Interest Determination Date as published in the H.15 Daily Update opposite the
caption "Bank Prime Loan". In the event that such rate is not published prior
to 3:00 P.M., New York City time, on the relevant Calculation Date, then the
Prime Rate with respect to such Interest Reset Date shall be the arithmetic
mean of the rates of interest publicly announced by each bank that appears on
the display designated as page "USPRIME1" on the Reuters Monitor Money Rates
Service or any successor service (or such other page as may replace the
USPRIME1 page on that service or any successor service for the purpose of
displaying prime rates or base lending rates of major United States banks)
("Reuters Screen USPRIME1 Page") as such bank's prime rate or base lending rate
as in effect for such Prime Rate Interest Determination Date as quoted on the
Reuters Screen USPRIME1 Page on such Prime Rate Interest Determination Date. If
fewer than four such rates appear on the Reuters Screen USPRIME1 Page on such
Prime Rate Interest Determination Date, the Prime Rate with respect to such
Interest Reset Date will be the arithmetic mean of the prime rates or base
lending rates (quoted on the basis of the actual number of days in the year
divided by a 360-day year) as of the close of business on such Prime Rate
Interest Determination Date by four major money center banks in The City of New
York selected by the Calculation Agent (which may include affiliates of the
Agents). If fewer than four
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<PAGE>
such quotations as described in the preceding sentence are so provided, the
Prime Rate with respect to such Interest Reset Date will be the arithmetic mean
of four prime rates (quoted on the basis of the actual number of days in the
year divided by a 360-day year) as of the close of business on such Prime Rate
Interest Determination Date as furnished in the City of New York by the major
money center banks, if any, that have provided such quotations and by a
reasonable number of substitute banks or trust companies organized and doing
business under the laws of the United States, or any State thereof, having
total equity capital of at least U.S. $500,000,000 and being subject to
supervision or examination by federal or state authority selected by the
Calculation Agent; provided, however, that if the banks selected as aforesaid
by the Calculation Agent are not quoting as mentioned above, the Prime Rate
with respect to such Interest Reset Date will be the Prime Rate in effect on
such Prime Rate Interest Determination Date or, if such Interest Determination
Date is the first Interest Determination Date, the Initial Interest Rate
specified on the face hereof.
Determination of LIBOR. If the Interest Rate Basis of this Security is
LIBOR, the interest rate with respect to any Interest Reset Date shall be
determined in accordance with the following provisions:
(i) On the relevant LIBOR Interest Determination Date, LIBOR will be
either (a) if "LIBOR Reuters" is specified above, the arithmetic mean of
the offered rates (unless the Designated LIBOR Page (as defined below) by
its terms provides only for a single rate, in which case such single rate
shall be used) for deposits in the Index Currency having the Index
Maturity specified above, commencing on the applicable Interest Reset
Date, that appear (or, if only a single rate is required as aforesaid,
appears) on the Designated LIBOR Page as of 11:00 A.M., London time, on
such LIBOR Interest Determination Date, or (b) if "LIBOR Telerate" is
specified above or if neither "LIBOR Reuters" nor "LIBOR Telerate" is
specified above as the method of calculating LIBOR, the rate for deposits
in the Index Currency having the Index Maturity specified above,
commencing on such Interest Reset Date, that appears on the Designated
LIBOR Page as of 11:00 A.M., London time, on such LIBOR Interest
Determination Date. If fewer than two such offered rates appear, or if no
such rate appears, as applicable, LIBOR on such LIBOR Interest
Determination Date will be determined in accordance with the provisions
described in clause (ii) below.
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<PAGE>
(ii) If LIBOR with respect to a LIBOR Interest Determination Date is
to be determined pursuant to this clause (ii), the Calculation Agent will
request the principal London office of each of four major reference banks
in the London interbank market, as selected by the Calculation Agent, to
provide the Calculation Agent with its offered quotation for deposits in
the Index Currency for the period of the Index Maturity specified above,
commencing on the Interest Reset Date, to prime banks in the London
interbank market at approximately 11:00 A.M., London time, on such LIBOR
Interest Determination Date and in a principal amount that is
representative for a single transaction in such Index Currency in such
market at such time. If at least two such quotations are provided, LIBOR
determined on such LIBOR Interest Determination Date will be the
arithmetic mean of such quotations. If fewer than two quotations are
provided, LIBOR determined on such LIBOR Interest Determination Date will
be the arithmetic mean of the rates quoted at approximately 11:00 A.M. in
the applicable Principal Financial Center, on such LIBOR Interest
Determination Date by three major banks in such Principal Financial Center
selected by the Calculation Agent (which may include affiliates of the
Agents) for loans in the Index Currency to leading European banks, having
the Index Maturity specified above and in a principal amount that is
representative for a single transaction in such Index Currency in such
market at such time; provided, however, that if the banks so selected by
the Calculation Agent are not quoting as mentioned in this sentence, LIBOR
determined on such LIBOR Interest Determination Date will be LIBOR in
effect on such LIBOR Interest Determination Date or, if such Interest
Determination Date is the first Interest Determination Date, the Initial
Interest Rate specified on the face hereof.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified above,
the display on the Reuter Monitor Money Rates Service (or any successor
service) on the page specified above (or any successor page) for the purpose of
displaying the London interbank rates of major banks for the applicable Index
Currency, or (b) if "LIBOR Telerate" is specified above or neither "LIBOR
Reuters" nor "LIBOR Telerate" is specified above as the method for calculating
LIBOR, the display on the Bridge Telerate, Inc. (or any successor service), on
page 3750 if the U.S. dollar is the Index Currency specified above or on the
page specified above if the Index Currency specified above is other than the
U.S. dollar (or any successor page), for the
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purpose of displaying the London interbank rates of major banks for the
applicable Index Currency.
"Index Currency" means the currency (including composite currencies)
specified above as the currency for which LIBOR shall be calculated. If no such
currency is specified above, the Index Currency shall be U.S. dollars.
Determination of Treasury Rate. If the Interest Rate Basis of this
Security is the Treasury Rate, the interest rate with respect to any Interest
Reset Date shall equal the rate for the most recent auction as of the relevant
Treasury Interest Determination Date of direct obligations of the United States
("Treasury Bills") having the Index Maturity shown above as published on either
the Telerate Page 56 or the Telerate Page 57 under the heading "AVGE INVEST
YIELD", or, if not so published by 3:00 P.M., New York City time, on the
relevant Calculation Date, the auction average rate (expressed as a bond
equivalent, on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) for such auction as otherwise announced by the United
States Department of the Treasury. In the event that the results of the auction
of Treasury Bills having the Index Maturity shown above are not pub lished or
reported as provided above by 3:00 P.M., New York City time, on such
Calculation Date, or if no such auction is held during such week, then the
Treasury Rate shall be calculated by the Calculation Agent and shall be a yield
to maturity (expressed as a bond equivalent, on the basis of a year of 365 or
366 days, as applicable, and applied on a daily basis) of the arithmetic mean
of the secondary market bid rates as of approximately 3:30 P.M., New York City
time, on such Treasury Interest Determination Date, of three leading primary
United States government securities dealers in The City of New York selected by
the Calculation Agent (which may include one or more of the Agents or their
affiliates) for the issue of Treasury Bills with a remaining maturity closest
to the Index Maturity shown above; provided, however, that if fewer than three
dealers selected as aforesaid by the Calculation Agent are quoting as mentioned
in this sentence, the Treasury Rate determined on such Treasury Interest
Determination Date will be the Treasury Rate in effect hereon on such Treasury
Interest Determination Date or, if such Treasury Interest Determination Date is
the first Interest Determination Date, the Initial Interest Rate specified on
the face hereof.
Determination of CD Rate. If the Interest Rate Basis of this Security is
the CD Rate, the interest rate with respect to any Interest Reset Date shall
equal the rate for the relevant CD Rate Interest Determination Date for
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negotiable certificates of deposit having the Index Maturity shown above as
published in H.15(519) under the heading "CDs (Secondary Market)" (or any
successor heading). In the event that such rate is not published prior to 3:00
P.M., New York City time, on the relevant Calculation Date, then the CD Rate
with respect to such Interest Reset Date shall be the rate on such CD Rate
Interest Determination Date for negotiable U.S. dollar certificates of deposit
having the specified Index Maturity as published in H.15 Daily Update under the
heading "CDs (secondary market)". If by 3:00 P.M., New York City time, on such
Calculation Date such rate is not published in either H.15(519) or H.15 Daily
Update, the CD Rate with respect to such Interest Reset Date shall be
calculated by the Calculation Agent and shall be the arithmetic mean of the
secondary market offered rates, as of 10:00 A.M., New York City time, on such
CD Rate Interest Determination Date, of three leading nonbank dealers of
negotiable U.S. dollar certificates of deposit in The City of New York selected
by the Calculation Agent (which may include one or more of the Agents or their
affiliates) for negotiable certificates of deposit of major United States money
center banks of the highest credit standing in the market for negotiable U.S.
dollar certificates of deposit, with a remaining maturity closest to the Index
Maturity shown above in an amount that is representative for a single
transaction in such market at such time; provided, however, that if fewer than
three dealers selected as aforesaid by the Calculation Agent are quoting as
mentioned in this sentence, the CD Rate with respect to such Interest Reset
Date will be the CD Rate in effect on such CD Rate Interest Determination Date
or, if such Interest Determination Date is the first Interest Determination
Date, the Initial Interest Rate specified on the face hereof.
Determination of Federal Funds Rate. If the Interest Rate Basis of this
Security is the Federal Funds Rate, the interest rate with respect to any
Interest Reset Date shall equal the rate on the relevant Federal Funds Rate
Interest Determination Date for Federal Funds having the Index Maturity
specified on the face hereof as published in H.15(519) under the heading
"Federal Funds (Effective)". In the event that such rate is not published by
9:00 A.M., New York City time, on the relevant Calculation Date, then the
Federal Funds Rate with respect to such Interest Reset Date will be the rate on
such Federal Funds Rate Interest Determination Date as published in H.15 Daily
Update under the heading "Federal funds (effective)" (or any successor
heading). If by 3:00 P.M., New York City time, on such Calculation Date such
rate is not published in either H.15(519) or H.15 Daily Update, the Federal
Funds Rate with respect to such Interest Reset Date shall be calculated by
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18
<PAGE>
the Calculation Agent and shall be the arithmetic mean of the rates, as of 9:00
A.M., New York City time, on such Federal Funds Rate Interest Determination
Date, for the last transaction in overnight Federal Funds arranged by three
leading brokers of Federal Funds transactions in The City of New York selected
by the Calculation Agent; provided, however, that if fewer than three brokers
selected as aforesaid by the Calculation Agent are quoting as mentioned in this
sentence, the Federal Funds Rate with respect to such Interest Reset Date will
be the Federal Funds Rate in effect on such Federal Funds Rate Interest
Determination Date or, if such Interest Determination Date is the first
Interest Determination Date, the Initial Interest Rate specified on the face
hereof.
Determination of CMT Rate Notes. If the Interest Rate Basis of this
Security is the CMT Rate, the interest rate with respect to any Interest Reset
Date shall equal the rate displayed on the Designated CMT Telerate Page (as
defined below) under the caption "...Treasury Constant Maturities...Federal
Reserve Board Release H.15...Mondays Approximately 3:45 p.m." (or any successor
caption), under the column for the Designated CMT Maturity Index (as defined
below), for (i) if the Designated CMT Telerate Page is 7055, the rate on the
related CMT Interest Determination Date, or (ii) if the Designated CMT Telerate
Page is 7052, the week or the month, as specified on the face hereof, ended
immediately preceding the week or month, as applicable, in which the related
CMT Interest Determination Date occurs. If such rate is no longer displayed on
the relevant page, or is not displayed prior to 3:00 P.M., New York City time,
on the relevant Calculation Date, then the CMT Rate with respect to such CMT
Interest Determination Date will be that treasury constant maturity rate for
the Designated CMT Maturity Index as published in the relevant H.15(519). If
such rate is no longer published, or is not published by 3:00 P.M., New York
City time, on such Calculation Date, then the CMT Rate for such CMT Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index, or other United States Treasury rate for the
Designated CMT Maturity Index, for the CMT Interest Determination Date with
respect to such Interest Reset Date as may then be published by either the
Board of Governors of the Federal Reserve System or the United States
Department of the Treasury that the Calculation Agent determines to be
comparable to the rate formerly displayed on the Designated CMT Telerate page
and published in the relevant H.15(519). If that information is not provided by
3:00 P.M., New York City time, on the related Calculation Date, then the CMT
Rate for such CMT Interest Determination Date will be calculated by the
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Calculation Agent and will be a yield to maturity, based on the arithmetic mean
of the secondary market closing offer side prices as of approximately 3:30
P.M., New York City time, on such CMT Interest Determination Date reported,
according to their written records, by three leading primary United States
government securities dealers ("Reference Dealers") in The City of New York
(which may include the Agents or their affiliates) selected by the Calculation
Agent (from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)) for the most recently issued direct noncallable fixed rate obligations
of the United States ("Treasury Notes") with an original maturity of
approximately the Designated CMT Maturity Index and a remaining term to
maturity of not less than the Designated CMT Maturity Index minus one year,
provided however, that if the Calculation Agent cannot obtain three Treasury
Notes quotations as described in this sentence, the CMT Rate for that CMT
Interest Determination Date will be calculated by the Calculation Agent and
will be a yield to maturity based on the arithmetic mean of the secondary
market offer side prices as of approximately 3:30 P.M., New York City time, on
such CMT Interest Determination Date of three Reference Dealers in The City of
New York selected by the Calculation Agent (from five such Reference Dealers
selected by the Calculation Agent and eliminating the highest quotation (or, in
the event of equality, one of the highest) and the lowest quotation (or, in the
event of equality, one of the lowest)), for Treasury Notes with an original
maturity of the number of years that is the next highest to the Designated CMT
Maturity Index and a remaining term to maturity closest to the Designated CMT
Maturity Index and in an amount of at least $100,000,000. If three or four, and
not five, of the Reference Dealers are quoting as described above, then the CMT
Rate will be based on the arithmetic mean of the offer prices obtained and
neither the highest nor the lowest of the quotes will be eliminated; provided,
however, that if fewer than three Reference Dealers selected by the Calculation
Agent are quoting as described above, the CMT Rate determined as of such CMT
Interest Determination Date will be the CMT Rate in effect on such CMT Interest
Determination date or, if such Interest Determination Date is the first
Interest Determination Date, the Initial Interest Rate specified on the face
hereof. If two Treasury Notes with an original maturity as described above have
remaining terms to maturity equally close to the Designated CMT Maturity Index,
the quotes for the Treasury Note with the shorter remaining term to maturity
will be used.
-20-
<PAGE>
"Designated CMT Telerate Page" means (a) the display on the Dow Jones
Telerate Service, or any successor service, specified above for the purpose of
displaying Treasury Constant Maturities as reported in H.15(519), or any
successor page or (b) if no such page is specified above, 7052, for the most
recent week.
"Designated CMT Maturity Index" means (a) the original period to
maturity of the U.S. Treasury securities specified above with respect to which
the CMT Rate will be calculated, which will be either 1, 2, 3, 5, 7, 10, 20 or
30 years or (b) if no maturity is specified above, two years.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, shown above. The Calculation Agent shall calculate the
interest rate on this permanent global Security in accor dance with the
foregoing on each Interest Determination Date or Calculation Date as
applicable. The Calculation Agent's determination of any interest rate, and its
calculation of the amount of interest for any interest period, will be final
and binding in the absence of manifest error. The interest rate on this
permanent global Security will in no event be higher than the maximum rate
permitted by New York law, as the same may be modified by United States law of
general application.
The Calculation Agent will upon the request of the Holder of this
permanent global Security provide to such Holder the interest rate hereon then
in effect and, if determined, the interest rate which will become effective on
the next Interest Reset Date.
If an Event of Default with respect to the Securi ties of this series
shall occur and be continuing, the principal of the Securities of this series
(including this permanent global Security and the interests represented hereby)
may be declared due and payable in the manner and with the effect provided in
the Indenture.
The Indenture contains provisions for defeasance at any time of (i) the
entire indebtedness of this Security or (ii) certain restrictive covenants with
respect to this Security, in each case upon compliance with certain conditions
set forth in the Indenture.
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
-21-
<PAGE>
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 not less than 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 not less than a majority 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 compli ance by the
Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their con sequences. Any such consent of waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this permanent global Secu rity and of any Security
or Securities issued upon the reg istration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no pro vision of this permanent
global 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 permanent global Security at the times,
places and rate, and in the coin or currency, herein prescribed.
This permanent global Security may not be trans ferred except as a whole
by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor of the
Depositary or a nominee of such successor.
The Securities of this Series may be issued in registered form, without
coupons, in denominations of $1,000 and integral multiples thereof or, if this
Security is denominated in a Specified Currency, in the denominations indicated
on the face hereof, unless otherwise specified above.
No service charge shall be made for any such reg istration of transfer or
exchange of Securities as provided above, 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 of this Series 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 permanent global Secu rity is
registered as the owner hereof for all purposes,
-22-
<PAGE>
whether or not this permanent global Security is overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this permanent global Security which are defined in the
Indenture and not herein otherwise defined shall have the meanings assigned to
them in the Indenture.
-23-
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as tenants
in common
UNIF GIFT MIN ACT - _________Custodian__________
(Cust) (Minor)
Uniform Gifts to Minors Act
----------------------------
(State)
Additional abbreviations may also be used
though not in the above list.
-----------------------------
-24-
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby
sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS
INCLUDING POSTAL ZIP CODE OF ASSIGNEE
- -------------------------------------------------------------------------------
the within permanent global Security and all rights there
under, hereby irrevocably constituting and appointing
- -------------------------------------------------------------------------------
to transfer said permanent global Security on the books of the Company, with
full power of substitution in the prem ises.
Dated:____________ ___________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
the within instrument in every
particular, without alteration or
enlargement or any change whatever.
-25-
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company to
repay the within Security (or portion thereof specified below) pursuant to its
terms at the applicable Repayment Price, together with interest to the
Repayment Date, to the undersigned at
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Please Print or Typewrite Name and Address of the Undersigned)
and specify the denomination or denominations (which shall not be less than the
minimum authorized denomination) of the Securities to be issued to the
undersigned for the portion of the within Security not being repaid (in the
absence of any such specification, one such Security will be issued for the
portion not being repaid):__________________________.
Dated:_____________________ ______________________________
______________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the within Security in every particular, without alteration or
enlargement or any change whatever.
-26-
EXHIBIT 2.c
[Form of Fixed Rate
Certificated Security]
REGISTERED
CUSIP NO.
No. FXR- $
PITNEY BOWES CREDIT CORPORATION
MEDIUM-TERM NOTE, SERIES D
[Form of Face of Security]
(Fixed Rate)
SPECIFIED CURRENCY: EXCHANGE RATE
AGENT:
ORIGINAL MATURITY
ISSUE DATE: INTEREST RATE: DATE:
REDEMPTION REDEMPTION
COMMENCEMENT DATE: PERIODS AND
PRICES:
REPAYMENT DATE:
AUTHORIZED DENOMINATIONS: REPAYMENT
(Only applicable if Specified PERIODS AND
Currency is other than U.S. PRICES:
dollars)
OTHER/ADDITIONAL TERMS: DEFAULT RATE:
(only applica-
ble if Security
issued at
original issue
discount)
OID DEFAULT
AMOUNT: (only
applicable if
Security issued
at original
issue discount)
<PAGE>
PITNEY BOWES CREDIT CORPORATION, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company", which
term includes any successor Person under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to or registered
assigns, the principal sum of
(any such
currency or composite currency being hereinafter referred to as a "Specified
Currency") on the Maturity Date shown above or, together with any premium
thereon, upon any applicable Redemption or Repayment Date specified above, and
to pay Interest thereon from the Original Issue Date shown above or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on February 1 and August 1 of each year and on the
Maturity Date, commencing on the first such Interest Payment Date next
succeeding the Original Issue Date, provided that if the Original Issue Date is
after a Regular Record Date and before the Interest Payment Date immediately
following such Regular Record Date, interest payments will commence on the
Interest Payment Date following the next succeeding Regular Record Date, at the
rate per annum set forth above, until the principal hereof is paid or made
available for payment. 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 January 15 or July 15 (whether or not a
Market Day (as defined below)), as the case may be, next preceding the February
1 and August 1 Interest Payment Dates; provided, however, that interest payable
at maturity or upon earlier redemption or repayment will be payable to the
Person to whom principal shall be payable. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to the registered
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 of which 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.
-2-
<PAGE>
The term "Market Day" means (i) unless otherwise provided in this
definition, any day that is a Business Day (as defined below) in The City of
New York; (ii) if the Specified Currency shown above is not U.S. dollars or
euro, any day that is a Business Day both in The City of New York and in the
Principal Financial Center (as defined below) in the country of the Specified
Currency; and (iii) if the Specified Currency shown above is euro, any date
that is a Business Day in The City of New York that is designated as a euro
settlement day by the Euro Banking Association in Paris or otherwise generally
regarded in the euro interbank market as a day on which payments in euro are
made. The term "Business Day", when used with respect to any place, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that place are authorized or obligated by law to close.
The term "Principal Financial Center" as used herein means the capital city of
the country issuing the currency or composite currency in which payment in
respect of this Security is to be made, except that with respect to U.S.
dollars, Australian dollars, Canadian dollars, Deutsche marks, Italian lira,
Swiss francs, Dutch guilders, Portuguese escudos, South African rand and euros,
the Principal Financial Center shall be The City of New York, Sydney, Toronto,
Frankfurt, Milan, Zurich, Amsterdam, London, Johannesburg and Luxembourg,
respectively.
Payment of principal of (and premium, if any) and interest on this
Security will be made in U.S. dollars unless the Holder elects to receive all
or part of such payments in such Specified Currency. A Holder of a Security
denominated in a Specified Currency other than U.S. dollars may so elect by
delivering a written request to the Paying Agent, on or prior to the applicable
Record Date or the date fifteen calendar days prior to maturity or earlier
redemption or repayment, as the case may be. Such written request may be in
writing (mailed or hand delivered) or by cable, telex or other form of
facsimile transmission. Such election shall remain in effect unless such
request is revoked on or prior to the applicable Record Date or the date
fifteen days prior to maturity or earlier redemption or repayment, as the case
may be.
Payments in U.S. dollars, in respect of a Security denominated in a
Specified Currency other than U.S. dollars, will be based upon the exchange
rate as determined by the Exchange Rate Agent based on the highest firm bid
quotation for U.S. dollars received by such Exchange Rate Agent as of 11:00
A.M., New York City time, on the second Business Day next preceding the
applicable payment date from three recog nized foreign exchange dealers, for
settlement on such
-3-
<PAGE>
payment date of the aggregate amount of the Specified Currency payable to all
Holders of Securities denominated in such Specified Currency electing to
receive U.S. dollar payments and at which the applicable dealer commits to
execute a contract. All currency exchange costs will be borne by the Holders of
such Securities by deductions from such payments. If three such bid quotations
are not available on the second Business Day preceding the payment of principal
(and premium, if any) or interest with respect to any Security, such payment
will be made in the Specified Currency.
Payment of the principal of (and premium, if any) and interest on this
Security due at maturity or upon earlier redemption or repayment to be made in
U.S. dollars will be made by wire transfer in immediately available funds upon
surrender of this Security at the Corporate Trust Office of the Trustee in
Atlanta, Georgia, provided that this Security is presented to the Paying Agent
in time for the Paying Agent to make such payment in accordance with its normal
procedures. Payments of interest to be made in U.S. dollars (other than
interest payable at maturity or upon earlier redemption or repayment) will be
made by check mailed to the address of the Person entitled thereto as it
appears in the Security Register, or by wire transfer to such account as may
have been designated to the Paying Agent at least 5 days prior to the Interest
Payment Date by such Person.
Unless otherwise specified above, payments of interest with respect to any
Security made in a Specified Currency other than U.S. dollars will be made by
check mailed to the address of the Holder hereof as that address appears in the
Security Register. All checks payable in a Specified Currency other than U.S.
dollars will be drawn on a bank located outside the United States. Payments at
maturity of principal (and premium, if any) to be made in a Specified Currency
other than U.S. dollars will be made by wire transfer in immediately available
funds to an account with a bank located in the country issuing the Specified
Currency (or, with respect to Securities denominated in euros, in the City of
Brussels) as shall have been designated at least 15 days prior to the stated
maturity, redemption or repayment date, as the case may be, by the registered
Holder of this Security on the relevant maturity, redemption or repayment date,
provided that, in the case of payment of principal of (and premium, if any) and
any interest due at maturity or upon earlier redemption or repayment, this
Security is presented to the Paying Agent in time for the Paying Agent to make
such payments in such funds in accordance with its normal procedures. Such
-4-
<PAGE>
designation shall be made by filing the appropriate information with the
Trustee at its Corporate Trust Office in Atlanta, Georgia, and, unless revoked,
any such designation made with respect to any Security by a registered Holder
will remain in effect with respect to any further payments with respect to this
Security payable to such Holder. If a payment with respect to this Security
cannot be made by wire transfer because the required designation has not been
received by the Trustee on or before the requisite date or for any other
reason, a notice will be mailed to the Holder at its registered address
requesting a designation pursuant to which such wire transfer can be made and,
upon the Trustee's receipt of such a designation, such payment will be made
within 5 days of such receipt. The Company will pay any administrative costs
imposed by banks in connection with making payments by wire transfer, but any
tax, assessment or governmental charge imposed upon payment will be borne by
the Holder hereof in respect of which payments are made.
If the Specified Currency is not available due to the imposition of
exchange controls or other circumstances beyond the Company's control, then the
Company will be entitled to satisfy its obligations to Holders by making
payments in U.S. dollars on the basis of the most recently available Exchange
Rate. The "Exchange Rate" means the noon buying rate in The City of New York
for cable transfers for the relevant Specified Currency. Any payment made under
such circumstances in U.S. dollars where the required payment is other than
U.S. dollars will not constitute an Event of Default under the Indenture.
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.
-5-
<PAGE>
Unless the certificate of authentication hereon has been executed by the
Trustee or by its Authenticating Agent 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______________________________
Title:
Attest__________________________
Title:
[SEAL]
CERTIFICATE OF AUTHENTICATION
This is one of the Securities
of the series designated therein
referred to in the within-
mentioned Indenture
SUNTRUST BANK, ATLANTA, as Trustee
By______________________________
Authorized Officer
-6-
<PAGE>
[Form of Reverse of Security]
PITNEY BOWES CREDIT CORPORATION
MEDIUM-TERM NOTE, SERIES D
(Fixed Rate)
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 July 31, 1999 (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. The Securities of this series may be issued from
time to time in an aggregate principal amount of up to $500,000,000 or its
equivalent in other currencies or composite currencies, may mature at different
times, bear interest, if any, at different rates, be redeemable at different
times or not at all, be issued at an original issue discount, and be
denominated in different currencies.
Interest payments for this Security will include interest accrued to but
excluding the Interest Payment Dates or date of maturity, redemption or
repayment, as the case may be. Unless otherwise indicated on the face hereof,
interest payments for this Security shall be computed and paid on the basis of
a 360-day year of twelve 30-day months.
If any Interest Payment Date or the Maturity Date (or date of redemption
or repayment) of this Security falls on a day that is not a Business Day, the
required payment of principal, premium, if any, and/or interest will be made on
the next succeeding Business Day as if made on the date such payment was due,
and no interest will accrue on such payment for the period from and after such
Interest Payment Date or the Maturity Date (or date of redemption or
repayment), as the case may be, to the date of such payment on the next
succeeding Business Day.
This Security is not subject to redemption prior to the Maturity Date
shown above unless a Redemption Commencement Date, Redemption Periods and
Redemption Prices are specified above. If so specified, this Security is
subject to redemption upon not less than 30 nor more than 60
-7-
<PAGE>
days' notice by mail, as a whole or in part, at the election of the Company,
during the Redemption Periods and at the Redemption Prices specified above,
plus interest accrued to the Redemption Date, but interest installments whose
Stated Maturity is on or prior to such Redemption Date will be payable to the
registered Holder of this Security, or one or more Predecessor Securities, of
record at the close of business on the relevant Regular Record Dates referred
to above, all as provided in the Indenture.
In the event of redemption of this Security in part only, a new Security
or Securities of this series and of like tenor and for a principal amount equal
to the unredeemed portion will be issued to the registered Holder upon the
cancellation hereof, and in event of transfer or exchange a new Security or
Securities of this series and of like tenor and for a like aggregate principal
amount will be issued to the registered Holder, in case of exchange, or the
designated transferee or transferees, in case of transfer.
This Security is not subject to repayment prior to the Maturity Date shown
above unless a Repayment Date, Repayment Periods and Repayment Prices are
specified above. If so specified, this Security is subject to repayment at the
option of the Holder hereof upon the terms set forth above.
In the event of repayment of this Security in part only, a new Security or
Securities of this series and of like tenor and for a principal amount equal to
the unpaid portion will be issued to the registered Holder upon the
cancellation hereof.
If an Event of Default with respect to the Securi ties of this series
shall occur and be continuing, the prin cipal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture.
The Indenture contains provisions for defeasance at any time of (i) the
entire indebtedness of this Security or (ii) certain restrictive covenants with
respect to this Security, in each case upon compliance with certain conditions
set forth in the Indenture.
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 not less than
-8-
<PAGE>
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 not less than a majority 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 or Securities issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provi sion 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 at the times, places 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 Securities in definitive registered form of the
Series of which this Security is a part 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 and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
If this Security is issued with an original issue discount, (i) if an
Event of Default with respect to the Securities shall have occurred and be
continuing, the amount of principal of this Security which may be declared due
and payable in the manner, with the effect and subject to the conditions
provided in the Indenture, shall be determined in the manner set forth under
"OID Default Amount" on the face hereof and (ii) in the case of a default of
payment in principal upon acceleration, redemption or at maturity hereof, in
lieu of any interest otherwise payable, the overdue principal of this Security
shall bear interest at a rate of interest per annum equal to the Default Rate
stated
-9-
<PAGE>
on the face hereof (to the extent that the payment of such interest shall be
legally enforceable), which shall accrue from the date of such acceleration,
redemption or maturity, as the case may be, to the date payment has been made
or duly provided for or such default has been waived in accordance with the
terms of the Indenture.
The Securities of this series may be issued in registered form, without
coupons, in denominations of $1,000 and integral multiples thereof or, if this
Security is denominated in a Specified Currency, in the denominations indicated
on the face hereof, unless otherwise specified above, and may be issued, in
whole or in part, in the form of one or more permanent global Securities that
will be deposited with, or on behalf of, the Depositary. As provided in the
Indenture and subject to certain limitations therein set forth, Securities of
this series issued in definitive registered form are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor 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 reg istration 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 is 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 and not
herein otherwise defined shall have the meanings assigned to them in the
Indenture.
-10-
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as tenants
in common
UNIF GIFT MIN ACT - _________Custodian__________
(Cust) (Minor)
Uniform Gifts to Minors Act
----------------------------
(State)
Additional abbreviations may also be used
though not in the above list.
-----------------------------
-11-
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby
sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS
INCLUDING POSTAL ZIP CODE OF ASSIGNEE
- -------------------------------------------------------------------------------
the within Security and all rights thereunder, hereby
irrevocably constituting and appointing
- -------------------------------------------------------------------------------
to transfer said Security on the books of the Company, with full power of
substitution in the premises.
Dated: ___________ ___________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
the within instrument in every
particular, without alteration or
enlargement or any change whatever.
-12-
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company to
repay the within Security (or portion thereof specified below) pursuant to its
terms at the applicable Repayment Price, together with interest to the
Repayment Date, to the undersigned at
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Please Print or Typewrite Name
and Address of the Undersigned)
and specify the denomination or denominations (which shall not be less than the
minimum authorized denomination) of the Securities to be issued to the
undersigned for the portion of the within Security not being repaid (in the
absence of any such specification, one such Security will be issued for the
portion not being repaid):__________________________.
Dated:_____________________ ______________________________
______________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the within Security in every particular, without alteration or
enlargement or any change whatever.
-13-
EXHIBIT 2.d
[Form of Floating
Rate Certificated
Security - No OID]
REGISTERED
CUSIP NO.
No. FLR- $
PITNEY BOWES CREDIT CORPORATION
MEDIUM-TERM NOTE, SERIES D
[Form of Face of Security]
(Floating Rate)
SPECIFIED CURRENCY: EXCHANGE RATE
AGENT:
ORIGINAL INITIAL MATURITY
ISSUE DATE: INTEREST RATE: DATE:
AUTHORIZED DENOMINATIONS:
(only applicable if Specified
Currency is other than U.S.
dollars)
INDEX MATURITY: SPREAD (plus
or minus):
INDEX CURRENCY (if other than
U.S. dollars):
INTEREST RATE SPREAD
BASIS: MULTIPLIER:
<PAGE>
INTEREST RESET MAXIMUM
PERIOD: INTEREST RATE:
INTEREST PAYMENT MINIMUM
DATES: INTEREST RATE:
REGULAR RECORD
DATES:
INTEREST CALCULATION
RESET DATES: DATES:
INTEREST CALCULATION
DETERMINATION DATES: AGENT:
REDEMPTION REDEMPTION
COMMENCEMENT DATE: PERIODS AND
PRICES:
REPAYMENT DATE: REPAYMENT
PERIODS AND
OTHER/ADDITIONAL TERMS: PRICES:
PITNEY BOWES CREDIT CORPORATION, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company", which
term includes any successor Person under the Indenture hereinafter referred
to), for value received, hereby promises to pay to
, or registered assigns, the
principal sum of (any such
currency or composite currency being hereinafter referred to as a "Specified
Currency") on the Maturity Date shown above or, together with any premium
thereon, upon any applicable Redemption or Repayment Date specified above, and
to pay Interest thereon from the Original Issue Date shown above or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, on the Interest
-2-
<PAGE>
Payment Dates set forth above and on the Maturity Date, commencing on the first
such Interest Payment Date next succeeding the Original Issue Date, provided
that if the Original Issue Date is after a Regular Record Date and before the
Interest Payment Date immediately following such Regular Record Date, interest
payments will commence on the Interest Payment Date following the next
succeeding Regular Record Date, at the rate per annum determined in accordance
with the provisions hereinafter set forth, depending on the Interest Rate Basis
specified above, until the principal hereof is paid or made available for
payment. 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 fifteenth calendar day (whether or not a Market
Day (as defined below)), next preceding each Interest Payment Date; provided,
however, that interest payable at maturity or upon earlier redemption or
repayment will be payable to the Person to whom principal shall be payable. Any
such interest not so punctually paid or duly provided for will forthwith cease
to be payable to the registered 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 of which shall be given to the Registered 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 this Security may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture.
The term "Market Day" means (i) unless otherwise provided in this
definition, any day that is a Business Day (as defined below) in The City of
New York; (ii) if the Interest Rate Basis specified above is LIBOR, any
Business Day in The City of New York that is also a London Business Day (as
defined below); (iii) if the Specified Currency shown above is not U.S. dollars
or euro, any day that is a Business Day both in The City of New York and in the
Principal Financial Center (as defined below) in the country of the Specified
Currency; and (iv) if the Specified Currency shown above is euro, any date that
is a Business Day in The City of New York that is designated as a euro
settlement day by the Euro Banking Association in Paris or otherwise generally
regarded in the euro interbank market as a day on which payments in euro are
made. The term
-3-
<PAGE>
"Business Day", when used with respect to any place, means each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in that place are authorized or obligated by law to close. The
term "London Business Day" means any day on which dealings in deposits in U.S.
dollars are transacted in the London interbank market. The term "Principal
Financial Center" as used herein means the capital city of the country issuing
the currency or composite currency in which payment in respect of this Security
is to be made, except that with respect to U.S. dollars, Australian dollars,
Canadian dollars, Deutsche marks, Italian lira, Swiss francs, Dutch guilders,
Portuguese escudos, South African rand and euros, the Principal Financial
Center shall be The City of New York, Sydney, Toronto, Frankfurt, Milan,
Zurich, Amsterdam, London, Johannesburg and Luxembourg, respectively.
Payment of principal of (and premium, if any) and interest on this
Security will be made in U.S. dollars unless the Holder elects to receive all
or part of such payments in such Specified Currency. A Holder of a Security
denominated in a Specified Currency other than U.S. dollars may so elect by
delivery of a written request to the Paying Agent, on or prior to the
applicable Record Date or the date fifteen calendar days prior to maturity or
earlier redemption or repayment, as the case may be. Such written request may
be in writing (mailed or hand delivered) or by cable, telex or other form of
facsimile transmission. Such election shall remain in effect unless such
request is revoked on or prior to the applicable Record Date or the date
fifteen days prior to maturity or earlier redemption or repayment, as the case
may be.
Payments in U.S. dollars in respect of a Security denominated in a
Specified Currency other than U.S. dollars will be based upon the exchange rate
as determined by the Exchange Rate Agent based on the highest firm bid
quotation for U.S. dollars received by such Exchange Rate Agent as of 11:00
A.M., New York City time, on the second Business Day next preceding the
applicable payment date from three recog nized foreign exchange dealers, for
settlement on such payment date of the aggregate amount of the Specified
Currency payable to all Holders of Securities denominated in such Specified
Currency electing to receive U.S. dollar payments and at which the applicable
dealer commits to execute a contract. All currency exchange costs will be borne
by the Holders of such Securities by deductions from such payments. If three
such bid quotations are not available on the second Business Day preceding the
payment of principal (and premium, if any) or interest with respect
-4-
<PAGE>
to any Security, such payment will be made in the Specified Currency.
Payment of the principal of (and premium, if any) and interest on this
Security due at maturity or upon earlier redemption or repayment to be made in
U.S. dollars will be made by wire transfer in immediately available funds upon
surrender of this Security at the Corporate Trust Office of the Trustee in
Atlanta, Georgia, provided that this Security is presented to the Paying Agent
in time for the Paying Agent to make such payment in accordance with its normal
procedures. Payments of interest to be made in U.S. dollars (other than
interest payable at maturity or upon earlier redemption or repayment) will be
made by check mailed to the address of the Person entitled thereto as it
appears in the Security Register, or by wire transfer to such account as may
have been designated to the Paying Agent at least 5 days prior to the Interest
Payment Date by such Person.
Unless otherwise specified above, payments of interest and principal (and
premium, if any) with respect to any Security made in a Specified Currency
other than U.S. dollars will be made by wire transfer in immediately available
funds to an account with a bank located in the country issuing the Specified
Currency (or, with respect to Securities denominated in euros, a euro account)
or other jurisdiction acceptable to the Company and the Paying Agent as shall
have been designated on or before the fifth Business Day after the Regular
Record Date with respect to a payment of interest or on or before the fifteenth
day before the stated maturity, redemption or repayment date, as the case may
be, by the registered Holder of this Security on the relevant Regular Record
Date or maturity, redemption or repayment date, provided that, in the case of
payment of principal of (and premium, if any) and any interest due at maturity
or upon earlier redemption or repayment, this Security is presented to the
Paying Agent in time for the Paying Agent to make such payments in such funds
in accordance with its normal procedures. Such designation shall be made by
filing the appropriate information with the Trustee at its Corporate Trust
Office in Atlanta, Georgia, and, unless revoked, any such designation made with
respect to any Security by a registered Holder will remain in effect with
respect to any further payments with respect to this Security payable to such
Holder. If a payment with respect to this Security cannot be made by wire
transfer because the required designation has not been received by the Trustee
on or before the requisite date or for any other reason, a notice will be
mailed to the Holder at its registered address requesting a designation
pursuant to which such wire
-5-
<PAGE>
transfer can be made and, upon the Trustee's receipt of such a designation,
such payment will be made within 5 days of such receipt. The Company will pay
any administrative costs imposed by banks in connection with making payments by
wire transfer, but any tax, assessment or governmental charge imposed upon
payment will be borne by the Holder hereof in respect of which payments are
made.
If the Specified Currency is not available due to the imposition of
exchange controls or other circumstances beyond the Company's control, then the
Company will be entitled to satisfy its obligations to Holders by making
payments in U.S. dollars on the basis of the most recently available Exchange
Rate. The "Exchange Rate" means the noon buying rate in The City of New York
for cable transfers for the relevant Specified Currency. Any payment made under
such circumstances in U.S. dollars where the required payment is other than
U.S. dollars will not constitute an Event of Default under the Indenture.
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 or by its Authenticating Agent by manual signature, this Security shall
not be entitled to any benefit under the Indenture or be valid or obligatory
for any purpose.
-6-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: PITNEY BOWES CREDIT CORPORATION
By______________________________
Title:
Attest__________________________
Title:
[SEAL]
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of
the series designated therein
referred to in the within-mentioned
Indenture
SUNTRUST BANK, ATLANTA, as Trustee
By______________________________
Authorized Officer
-7-
<PAGE>
[Form of Reverse]
PITNEY BOWES CREDIT CORPORATION
MEDIUM-TERM NOTE, Series D
(Floating Rate)
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 July 31, 1999 (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 Securities
of the series designated on the face hereof. The Securities of this series may
be issued from time to time in an aggregate principal amount of up to
$500,000,000 or its equivalent in other currencies or composite currencies, may
mature at different times, bear interest, if any, at different rates, be
redeemable at different times or not at all, be issued at an original issue
discount, and be denominated in different currencies.
If the Maturity Date (or date of redemption or repayment) of this Security
falls on a day that is not a Market Day, the required payment of principal,
premium, if any, and interest will be made on the next succeeding Market Day
or, if the Interest Rate Basis specified on the face hereof is LIBOR and that
day falls in the next calendar month, the next preceding Market Day, as if made
on the date such payment was due, and no interest will accrue on such payment
for the period from and after the Maturity Date (or date of redemption or
repayment) to the date of such payment on the next succeeding Market Day.
This Security is not subject to redemption prior to the Maturity Date
shown above unless a Redemption Com mencement Date and Redemption Periods and
Redemption Prices are specified above. If so specified, this Security is
subject to redemption upon not less than 30 nor more than 60 days' notice by
mail, as a whole or in part, at the election of the Company, during the
Redemption Periods and at the Redemption Prices specified above, plus interest
accrued to the Redemption Date, but interest installments whose Stated Maturity
is on or prior to such Redemption Date will be
-8-
<PAGE>
payable to the registered Holder of this Security, or one or more Predecessor
Securities, of record at the close of business on the relevant Regular Record
Dates referred to above, all as provided in the Indenture.
In the event of redemption of this Security in part only, a new Security
or Securities of this series and of like tenor and for a principal amount equal
to the unre deemed portion will be delivered to the registered Holder upon the
cancellation hereof and in the event of transfer or exchange a new Security or
Securities of this Series and of like tenor and for a like aggregate principal
amount will be issued to the registered Holder, in case of exchange, or the
designated transferee or transferees, in case of transfer.
This Security is not subject to repayment prior to the Maturity Date shown
above unless a Repayment Date, Repayment Periods and Repayment Prices are
specified above. If so specified, this Security is subject to repayment at the
option of the Holder hereof upon the terms set forth above.
In the event of repayment of this Security in part only, a new Security or
Securities of this series and of like tenor and for a principal amount equal to
the unpaid portion will be issued to the registered Holder upon the
cancellation hereof.
The interest rate payable on this Security will be calculated by reference
to the Interest Rate Basis specified above (a) plus or minus the Spread
specified above, if any, or (b) multiplied by the Spread Multiplier specified
above, if any. The Interest Rate Basis may be: (a) the Commercial Paper Rate,
(b) the Prime Rate, (c) LIBOR, (d) the Treasury Rate, (e) the CD Rate, (f) the
Federal Funds Rate, (g) the CMT Rate, or (h) such other interest rate basis or
formula as is specified on the face hereof, as specified above. The "Index
Maturity" is the period to maturity of the instrument or obligation from which
the Interest Rate Basis is calculated, as specified above.
All percentages resulting from any calculation on this Security will be
rounded to the nearest one hundred- thousandth of a percentage point, with
five-one millionths of a percentage point rounded upwards (e.g., 9.876545% (or
.09876545) would be rounded to 9.87655% (or .0987655)), and all amounts used in
or resulting from such calculation on this Security will be rounded, in the
case of U.S. dollars, to the nearest cent or, in the case of a foreign currency
or
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<PAGE>
composite currency, to the nearest unit (with one-half cent or unit being
rounded upwards).
Unless otherwise specified above, the "Regular Record Date" with respect
to this Security shall be the date 15 calendar days prior to each Interest
Payment Date, whether or not such date shall be a Market Day, and interest will
be payable, in the case of Securities which reset daily, weekly or monthly, on
the third Wednesday of each month or on the third Wednesday of March, June,
September and December of each year (as specified above); which reset
quarterly, on the third Wednesday of March, June, September and December of
each year; which reset semi-annually, on the third Wednesday of the two months
of each year specified above; and which reset annually, on the third Wednesday
of the month specified above (each an "Interest Payment Date"); and in each
case, at maturity or upon earlier redemption or repayment.
Payments of interest with respect to any Interest Payment Date will
include interest accrued to but excluding such Interest Payment Date or date of
maturity, redemption or repayment, as the case may be. Accrued interest from
the Original Issue Date or from the last date to which interest has been paid
is calculated by multiplying the face amount of this Security by an accrued
interest factor, computed by adding the interest factor calculated for each day
from such starting date to but excluding the date for which accrued interest is
being calculated. The interest factor (expressed as a decimal) for each such
day is computed by dividing the interest rate (expressed as a decimal)
applicable to such day by 360 or, in the case of a Treasury Rate Security or
CMT Rate Security, by the actual number of days in the year.
The rate of interest on this Security will be reset daily, weekly,
monthly, quarterly, semi-annually or annually (each an "Interest Reset Date"),
as specified above. Unless otherwise specified above, the Interest Reset Date
will be, if this Security resets daily, each Market Day; if this Security
(other than a Treasury Rate Security) resets weekly, the Wednesday of each
week, or if this Security is a Treasury Rate Security, the Tuesday of each week
(except as provided below); if this Security resets monthly, the third
Wednesday of each month; if this Security resets quarterly, the third Wednesday
of March, June, September and December; if this Security resets semi-annually,
the third Wednesday of two months of each year, as specified above; and if this
Security resets annually, the third Wednesday of one month of each year, as
specified above; provided, however, that the interest rate
-10-
<PAGE>
in effect from the date of issue to the first Interest Reset Date will be the
Initial Interest Rate specified above. If any Interest Reset Date would
otherwise be a day that is not a Market Day, the Interest Reset Date shall be
postponed to the next day that is a Market Day, except that if this Security is
a LIBOR Security and such Market Day is in the next succeeding calendar month,
such Interest Reset Date shall be the immediately preceding Market Day.
If any Interest Payment Date (other than at maturity, redemption or
repayment) specified above would otherwise fall on a day that is not a Market
Day, such Interest Payment Date shall be the next succeeding Market Day, or in
the case of a LIBOR Security, if such succeeding Market Day falls in the next
calendar month, such Interest Payment Date shall be the next preceding Market
Day.
The Interest Determination Date pertaining to an Interest Reset Date for a
Commercial Paper Rate Security (the "Commercial Paper Interest Determination
Date"), for a Prime Rate Security (the "Prime Rate Interest Determination
Date"), for a CD Rate Security (the "CD Rate Interest Determination Date"), for
a Federal Funds Rate Security (the "Federal Funds Interest Determination Date")
and for a CMT Rate Security (the "CMT Rate Interest Determination Date") will
be the second Market Day preceding such Interest Reset Date. The Interest
Determination Date pertaining to an Interest Reset Date for a LIBOR Security
(the "LIBOR Interest Determination Date") will be the second London Business
Day preceding the applicable Interest Reset Date. The Interest Determination
Date pertaining to an Interest Reset Date for a Treasury Rate Security (the
"Treasury Interest Determination Date") will be the day of the week in which
such Interest Reset Date falls on which Treasury bills would normally be
auctioned. Treasury bills are usually sold at auction on Monday of each week,
unless that day is a legal holiday, in which case the auction is normally held
on the following Tuesday, except that such auction may be held on the preceding
Friday. If, as the result of a legal holi day, an auction is so held on the
preceding Friday, such Friday will be the Treasury Interest Determination Date
pertaining to the Interest Reset Date occurring in the next succeeding week. If
an auction date shall fall on any Interest Reset Date for a Treasury Rate
Security, then such Interest Reset Date shall instead be the first Market Day
immediately following such auction date. Unless otherwise specified above, the
Calculation Date pertaining to any Interest Determination Date shall be the
earlier of (i) the tenth calendar day after such Interest Determination Date,
or, if such day is not a Market Day, the next succeeding Market Day or (ii) the
Market Day immediately preceding the
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<PAGE>
applicable Interest Payment Date or the Maturity Date, as the case may be.
Determination of Commercial Paper Rate. If the Interest Rate Basis of this
Security is the Commercial Paper Rate, the interest rate with respect to any
Interest Reset Date shall equal the Money Market Yield (calculated as described
below) of the per annum rate (quoted on a bank discount basis) as of the
relevant Commercial Paper Interest Determination Date for commercial paper
having the Index Maturity shown above, as published by the Board of Governors
of the Federal Reserve System in "Statistical Release H.15(519), Selected
Interest Rates" or any successor publication of the Board of Governors of the
Federal Reserve System ("H.15(519)") under the heading "Commercial Paper--
Non-Financial". If that rate is not published before 3:00 P.M., New York City
time, on the relevant Calculation Date, then the Commercial Paper Rate with
respect to such Interest Reset Date shall be the Money Market Yield of such
rate on such Commercial Paper Interest Determination Date for commercial paper
having the Index Maturity specified above as available through the worldwide
web site of the Board of Governors of the Federal Reserve System at
http://www.bog.frb.fed.us/releases/h.15/update, or any successor site or
publication of the Board of Governors of the Federal Reserve System (the "H.15
Daily Update") under the heading "Commercial Paper--Non-financial". If by 3:00
P.M., New York City time, on such Calculation Date, such rate is not published
in either H.15(519) or H.15 Daily Update, the Commercial Paper Rate with
respect to such Interest Reset Date shall be calculated by the Calculation
Agent and shall be the Money Market Yield of the arithmetic mean of the offered
per annum rates as of 11:00 A.M., New York City time, on such Commercial Paper
Interest Determination Date, of three leading dealers of commercial paper in
The City of New York selected by the Calculation Agent (which may include one
or more of the agents named on the cover of the Company's Prospectus
Supplement, dated August 30, 1999, with respect to the series of Securities of
which this Security is one (the "Agents") or their affiliates) for commercial
paper of the Index Maturity shown above placed for an industrial issuer whose
senior unsecured bond rating is "AA", or the equivalent, from a nationally
recognized rating agency; provided, however, that if fewer than three dealers
selected as aforesaid by the Calculation Agent are quoting as mentioned above,
the Commercial Paper Rate with respect to such Interest Reset Date will be the
Commercial Paper Rate in effect hereon on such Commercial Paper Interest
Determination Date or, if such Interest Determination Date is the first
Interest Determination Date, the Initial Interest Rate specified on the face
hereof.
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<PAGE>
"Money Market Yield" shall be the yield (expressed as a percentage)
calculated in accordance with the following formula:
Money Market Yield = 100 x 360 x D
-------------
360 - (D x M)
where "D" refers to the per annum rate for commercial paper, quoted on a bank
discount basis and expressed as a decimal and "M" refers to the actual number
of days in the period for which accrued interest is being calculated.
Determination of Prime Rate. If the Interest Rate Basis of this Security
is the Prime Rate, the interest rate with respect to any Interest Reset Date
shall equal the rate set forth for the relevant Prime Rate Interest
Determination Date in H.15(519) under the heading "Bank Prime Loan" (or any
successor heading). In the event that such rate is not published prior to 9:00
A.M., New York City time, on the relevant Calculation Date, then the Prime Rate
with respect to such Interest Reset Date shall be the rate on such Prime Rate
Interest Determination Date as published in the H.15 Daily Update opposite the
caption "Bank Prime Loan". In the event that such rate is not published prior
to 3:00 P.M., New York City time, on the relevant Calculation Date, then the
Prime Rate with respect to such Interest Reset Date shall be the arithmetic
mean of the rates of interest publicly announced by each bank that appears on
the display designated as page "USPRIME1" on the Reuters Monitor Money Rates
Service or any successor service (or such other page as may replace the
USPRIME1 page on that service or any successor service for the purpose of
displaying prime rates or base lending rates of major United States banks)
("Reuters Screen USPRIME1 Page") as such bank's prime rate or base lending rate
as in effect for such Prime Rate Interest Determination Date as quoted on the
Reuters Screen USPRIME1 Page on such Prime Rate Interest Determination Date. If
fewer than four such rates appear on the Reuters Screen USPRIME1 Page on such
Prime Rate Interest Determination Date, the Prime Rate with respect to such
Interest Reset Date will be the arithmetic mean of the prime rates or base
lending rates (quoted on the basis of the actual number of days in the year
divided by a 360-day year) as of the close of business on such Prime Rate
Interest Determination Date by four major money center banks in The City of New
York selected by the Calculation Agent (which may include affiliates of the
Agents). If fewer than four such quotations as described in the preceding
sentence are so provided, the Prime Rate with respect to such Interest Reset
Date will be the arithmetic mean of four prime rates (quoted on the basis of
the actual number of days in the
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<PAGE>
year divided by a 360-day year) as of the close of business on such Prime Rate
Interest Determination Date as furnished in the City of New York by the major
money center banks, if any, that have provided such quotations and by a
reasonable number of substitute banks or trust companies organized and doing
business under the laws of the United States, or any State thereof, having
total equity capital of at least U.S. $500,000,000 and being subject to
supervision or examination by federal or state authority selected by the
Calculation Agent; provided, however, that if the banks selected as aforesaid
by the Calculation Agent are not quoting as mentioned above, the Prime Rate
with respect to such Interest Reset Date will be the Prime Rate in effect on
such Prime Rate Interest Determination Date or, if such Interest Determination
Date is the first Interest Determination Date, the Initial Interest Rate
specified on the face hereof.
Determination of LIBOR. If the Interest Rate Basis of this Security is
LIBOR, the interest rate with respect to any Interest Reset Date shall be
determined in accordance with the following provisions:
(i) On the relevant LIBOR Interest Determination Date, LIBOR will be
either (a) if "LIBOR Reuters" is specified above, the arithmetic mean of
the offered rates (unless the Designated LIBOR Page (as defined below) by
its terms provides only for a single rate, in which case such single rate
shall be used) for deposits in the Index Currency having the Index
Maturity specified above, commencing on the applicable Interest Reset
Date, that appear (or, if only a single rate is required as aforesaid,
appears) on the Designated LIBOR Page as of 11:00 A.M., London time, on
such LIBOR Interest Determination Date, or (b) if "LIBOR Telerate" is
specified above or if neither "LIBOR Reuters" nor "LIBOR Telerate" is
specified above as the method of calculating LIBOR, the rate for deposits
in the Index Currency having the Index Maturity specified above,
commencing on such Interest Reset Date, that appears on the Designated
LIBOR Page as of 11:00 A.M., London time, on such LIBOR Interest
Determination Date. If fewer than two such offered rates appear, or if no
such rate appears, as applicable, LIBOR on such LIBOR Interest
Determination Date will be determined in accordance with the provisions
described in clause (ii) below.
(ii) If LIBOR with respect to a LIBOR Interest Determination Date is
to be determined pursuant to this clause (ii), the Calculation Agent will
request the principal London office of each of four major reference
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<PAGE>
banks in the London interbank market, as selected by the Calculation
Agent, to provide the Calculation Agent with its offered quotation for
deposits in the Index Currency for the period of the Index Maturity
specified above, commencing on the Interest Reset Date, to prime banks in
the London interbank market at approximately 11:00 A.M., London time, on
such LIBOR Interest Determination Date and in a principal amount that is
representative for a single transaction in such Index Currency in such
market at such time. If at least two such quotations are provided, LIBOR
determined on such LIBOR Interest Determination Date will be the
arithmetic mean of such quotations. If fewer than two quotations are
provided, LIBOR determined on such LIBOR Interest Determination Date will
be the arithmetic mean of the rates quoted at approximately 11:00 A.M. in
the applicable Principal Financial Center, on such LIBOR Interest
Determination Date by three major banks in such Principal Financial Center
selected by the Calculation Agent (which may include affiliates of the
Agents) for loans in the Index Currency to leading European banks, having
the Index Maturity specified above and in a principal amount that is
representative for a single transaction in such Index Currency in such
market at such time; provided, however, that if the banks so selected by
the Calculation Agent are not quoting as mentioned in this sentence, LIBOR
determined on such LIBOR Interest Determination Date will be LIBOR in
effect on such LIBOR Interest Determination Date or, if such Interest
Determination Date is the first Interest Determination Date, the Initial
Interest Rate specified on the face hereof.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified above,
the display on the Reuter Monitor Money Rates Service (or any successor
service) on the page specified above (or any successor page) for the purpose of
displaying the London interbank rates of major banks for the applicable Index
Currency, or (b) if "LIBOR Telerate" is specified above or neither "LIBOR
Reuters" nor "LIBOR Telerate" is specified above as the method for calculating
LIBOR, the display on the Bridge Telerate, Inc. (or any successor service), on
page 3750 if the U.S. dollar is the Index Currency specified above or on the
page specified above if the Index Currency specified above is other than the
U.S. dollar (or any successor page), for the purpose of displaying the London
interbank rates of major banks for the applicable Index Currency.
"Index Currency" means the currency (including composite currencies)
specified above as the currency for
-15-
<PAGE>
which LIBOR shall be calculated. If no such currency is specified above, the
Index Currency shall be U.S. dollars.
Determination of Treasury Rate. If the Interest Rate Basis of this
Security is the Treasury Rate, the interest rate with respect to any Interest
Reset Date shall equal the rate for the most recent auction as of the relevant
Treasury Interest Determination Date of direct obligations of the United States
("Treasury Bills") having the Index Maturity shown above as published on either
the Telerate Page 56 or the Telerate Page 57 under the heading "AVGE INVEST
YIELD", or, if not so published by 3:00 P.M., New York City time, on the
relevant Calculation Date, the auction average rate (expressed as a bond
equivalent, on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) for such auction as otherwise announced by the United
States Department of the Treasury. In the event that the results of the auction
of Treasury Bills having the Index Maturity shown above are not pub lished or
reported as provided above by 3:00 P.M., New York City time, on such
Calculation Date, or if no such auction is held during such week, then the
Treasury Rate shall be calculated by the Calculation Agent and shall be a yield
to maturity (expressed as a bond equivalent, on the basis of a year of 365 or
366 days, as applicable, and applied on a daily basis) of the arithmetic mean
of the secondary market bid rates as of approximately 3:30 P.M., New York City
time, on such Treasury Interest Determination Date, of three leading primary
United States government securities dealers in The City of New York selected by
the Calculation Agent (which may include one or more of the Agents or their
affiliates) for the issue of Treasury Bills with a remaining maturity closest
to the Index Maturity shown above; provided, however, that if fewer than three
dealers selected as aforesaid by the Calculation Agent are quoting as mentioned
in this sentence, the Treasury Rate determined on such Treasury Interest
Determination Date will be the Treasury Rate in effect hereon on such Treasury
Interest Determination Date or, if such Treasury Interest Determination Date is
the first Interest Determination Date, the Initial Interest Rate specified on
the face hereof.
Determination of CD Rate. If the Interest Rate Basis of this Security is
the CD Rate, the interest rate with respect to any Interest Reset Date shall
equal the rate for the relevant CD Rate Interest Determination Date for
negotiable certificates of deposit having the Index Maturity shown above as
published in H.15(519) under the heading "CDs (Secondary Market)" (or any
successor heading). In the event that such rate is not published prior to 3:00
P.M., New York City time, on the relevant Calculation Date, then
-16-
<PAGE>
the CD Rate with respect to such Interest Reset Date shall be the rate on such
CD Rate Interest Determination Date for negotiable U.S. dollar certificates of
deposit having the specified Index Maturity as published in H.15 Daily Update
under the heading "CDs (secondary market)". If by 3:00 P.M., New York City
time, on such Calculation Date such rate is not published in either H.15(519)
or H.15 Daily Update, the CD Rate with respect to such Interest Reset Date
shall be calculated by the Calculation Agent and shall be the arithmetic mean
of the secondary market offered rates, as of 10:00 A.M., New York City time, on
such CD Rate Interest Determination Date, of three leading nonbank dealers of
negotiable U.S. dollar certificates of deposit in The City of New York selected
by the Calculation Agent (which may include one or more of the Agents or their
affiliates) for negotiable certificates of deposit of major United States money
center banks of the highest credit standing in the market for negotiable U.S.
dollar certificates of deposit, with a remaining maturity closest to the Index
Maturity shown above in an amount that is representative for a single
transaction in such market at such time; provided, however, that if fewer than
three dealers selected as aforesaid by the Calculation Agent are quoting as
mentioned in this sentence, the CD Rate with respect to such Interest Reset
Date will be the CD Rate in effect on such CD Rate Interest Determination Date
or, if such Interest Determination Date is the first Interest Determination
Date, the Initial Interest Rate specified on the face hereof.
Determination of Federal Funds Rate. If the Interest Rate Basis of this
Security is the Federal Funds Rate, the interest rate with respect to any
Interest Reset Date shall equal the rate on the relevant Federal Funds Rate
Interest Determination Date for Federal Funds having the Index Maturity
specified on the face hereof as published in H.15(519) under the heading
"Federal Funds (Effective)". In the event that such rate is not published by
9:00 A.M., New York City time, on the relevant Calculation Date, then the
Federal Funds Rate with respect to such Interest Reset Date will be the rate on
such Federal Funds Rate Interest Determination Date as published in H.15 Daily
Update under the heading "Federal funds (effective)" (or any successor
heading). If by 3:00 P.M., New York City time, on such Calculation Date such
rate is not published in either H.15(519) or H.15 Daily Update, the Federal
Funds Rate with respect to such Interest Reset Date shall be calculated by the
Calculation Agent and shall be the arithmetic mean of the rates, as of 9:00
A.M., New York City time, on such Federal Funds Rate Interest Determination
Date, for the last transaction in overnight Federal Funds arranged by three
leading brokers of Federal Funds transactions in The City of
-17-
<PAGE>
New York selected by the Calculation Agent; provided, however, that if fewer
than three brokers selected as aforesaid by the Calculation Agent are quoting
as mentioned in this sentence, the Federal Funds Rate with respect to such
Interest Reset Date will be the Federal Funds Rate in effect on such Federal
Funds Rate Interest Determination Date or, if such Interest Determination Date
is the first Interest Determination Date, the Initial Interest Rate specified
on the face hereof.
Determination of CMT Rate Notes. If the Interest Rate Basis of this
Security is the CMT Rate, the interest rate with respect to any Interest Reset
Date shall equal the rate displayed on the Designated CMT Telerate Page (as
defined below) under the caption "...Treasury Constant Maturities...Federal
Reserve Board Release H.15...Mondays Approximately 3:45 p.m." (or any successor
caption), under the column for the Designated CMT Maturity Index (as defined
below), for (i) if the Designated CMT Telerate Page is 7055, the rate on the
related CMT Interest Determination Date, or (ii) if the Designated CMT Telerate
Page is 7052, the week or the month, as specified on the face hereof, ended
immediately preceding the week or month, as applicable, in which the related
CMT Interest Determination Date occurs. If such rate is no longer displayed on
the relevant page, or is not displayed prior to 3:00 P.M., New York City time,
on the relevant Calculation Date, then the CMT Rate with respect to such CMT
Interest Determination Date will be that treasury constant maturity rate for
the Designated CMT Maturity Index as published in the relevant H.15(519). If
such rate is no longer published, or is not published by 3:00 P.M., New York
City time, on such Calculation Date, then the CMT Rate for such CMT Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index, or other United States Treasury rate for the
Designated CMT Maturity Index, for the CMT Interest Determination Date with
respect to such Interest Reset Date as may then be published by either the
Board of Governors of the Federal Reserve System or the United States
Department of the Treasury that the Calculation Agent determines to be
comparable to the rate formerly displayed on the Designated CMT Telerate page
and published in the relevant H.15(519). If that information is not provided by
3:00 P.M., New York City time, on the related Calculation Date, then the CMT
Rate for such CMT Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity, based on the arithmetic mean
of the secondary market closing offer side prices as of approximately 3:30
P.M., New York City time, on such CMT Interest Determination Date reported,
according to their written records, by three leading primary
-18-
<PAGE>
United States government securities dealers ("Reference Dealers") in The City
of New York (which may include the Agents or their affiliates) selected by the
Calculation Agent (from five such Reference Dealers selected by the Calculation
Agent and eliminating the highest quotation (or, in the event of equality, one
of the highest) and the lowest quotation (or, in the event of equality, one of
the lowest)) for the most recently issued direct noncallable fixed rate
obligations of the United States ("Treasury Notes") with an original maturity
of approximately the Designated CMT Maturity Index and a remaining term to
maturity of not less than the Designated CMT Maturity Index minus one year,
provided however, that if the Calculation Agent cannot obtain three Treasury
Notes quotations as described in this sentence, the CMT Rate for that CMT
Interest Determination Date will be calculated by the Calculation Agent and
will be a yield to maturity based on the arithmetic mean of the secondary
market offer side prices as of approximately 3:30 P.M., New York City time, on
such CMT Interest Determination Date of three Reference Dealers in The City of
New York selected by the Calculation Agent (from five such Reference Dealers
selected by the Calculation Agent and eliminating the highest quotation (or, in
the event of equality, one of the highest) and the lowest quotation (or, in the
event of equality, one of the lowest)), for Treasury Notes with an original
maturity of the number of years that is the next highest to the Designated CMT
Maturity Index and a remaining term to maturity closest to the Designated CMT
Maturity Index and in an amount of at least $100,000,000. If three or four, and
not five, of the Reference Dealers are quoting as described above, then the CMT
Rate will be based on the arithmetic mean of the offer prices obtained and
neither the highest nor the lowest of the quotes will be eliminated; provided,
however, that if fewer than three Reference Dealers selected by the Calculation
Agent are quoting as described above, the CMT Rate determined as of such CMT
Interest Determination Date will be the CMT Rate in effect on such CMT Interest
Determination date or, if such Interest Determination Date is the first
Interest Determination Date, the Initial Interest Rate specified on the face
hereof. If two Treasury Notes with an original maturity as described above have
remaining terms to maturity equally close to the Designated CMT Maturity Index,
the quotes for the Treasury Note with the shorter remaining term to maturity
will be used.
"Designated CMT Telerate Page" means (a) the display on the Dow Jones
Telerate Service, or any successor service, specified above for the purpose of
displaying Treasury Constant Maturities as reported in H.15(519), or any
-19-
<PAGE>
successor page or (b) if no such page is specified above, 7052, for the most
recent week.
"Designated CMT Maturity Index" means (a) the original period to maturity
of the U.S. Treasury securities specified above with respect to which the CMT
Rate will be calculated, which will be either 1, 2, 3, 5, 7, 10, 20 or 30 years
or (b) if no maturity is specified above, two years.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, shown above. The Calculation Agent shall calculate the
interest rate on this Security in accordance with the fore going on each
Interest Determination Date or Calculation Date as applicable. The Calculation
Agent's determination of any interest rate, and its calculation of the amount
of interest for any interest period, will be final and binding in the absence
of manifest error. The interest rate on this Security will in no event be
higher than the maximum rate permitted by New York law, as the same may be
modified by United States law of general application.
The Calculation Agent will upon the request of the Holder of this Security
provide to such Holder the interest rate hereon then in effect and, if
determined, the interest rate which will become effective on the next Interest
Reset Date.
If an Event of Default with respect to the 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.
The Indenture contains provisions for defeasance at any time of (i) the
entire indebtedness of this Security or (ii) certain restrictive covenants with
respect to this Security, in each case upon compliance with certain conditions
set forth in the Indenture.
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 not less than 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 not less than a
majority in principal amount of the Securities of
-20-
<PAGE>
each series at the time Outstanding, on behalf of the Holders of all Securities
of such series, to waive compli ance by the Company with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent of waiver by the Holder of this Security shall
be conclusive and binding upon such Holder and upon all future Holders of this
permanent global Security and of any Security or Securities issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no pro vision 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 at the times, places and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to cer tain limitations therein
set forth, the transfer of Securi ties in definitive registered form of the
series of which this Security is a part may be registered in the Security
Register, upon surrender of such Securities 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 such Securities 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 like tenor, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Securities of this series may be issued in registered form, without
coupons, in denominations of $1,000 and integral multiples thereof or, if this
Security is denominated in a Specified Currency, in the denominations indicated
on the face hereof, unless otherwise specified above, and may be issued, in
whole or in part, in the form of one or more permanent global Securities that
will be deposited with, or on behalf of, the Depositary. As pro vided in the
Indenture and subject to certain limitations therein set forth, Securities of
this series issued in definitive registered form are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a
different authorized denomination, as requested by the Holder surrendering the
same.
-21-
<PAGE>
No service charge shall be made for any such registration of transfer or
exchange of Securities as provided above, 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 a Security of this series 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 is 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 and not
herein otherwise defined shall have the meanings assigned to them in the
Indenture.
-22-
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as tenants
in common
UNIF GIFT MIN ACT - __________Custodian___________
(Cust) (Minor)
Uniform Gifts to Minor Acts
------------------------------
(State)
Additional abbreviations may also be used though not in the
above list.
--------------------
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<PAGE>
FOR VALUE RECEIVED, the undersigned hereby
sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS
INCLUDING POSTAL ZIP CODE OF ASSIGNEE
- --------------------------------------------------------------------------------
the within Security and all rights thereunder, hereby
irrevocably constituting and appointing
- --------------------------------------------------------------------------------
to transfer said Security on the books of the Company, with full power of
substitution in the premises.
Dated:____________ ___________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within instrument in every
particular, without alteration or
enlargement or any change whatever.
-24-
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company to
repay the within Security (or portion thereof specified below) pursuant to its
terms at the applicable Repayment Price, together with interest to the
Repayment Date, to the undersigned at
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Please Print or Typewrite Name and Address of the Undersigned)
and specify the denomination or denominations (which shall not be less than the
minimum authorized denomination) of the Securities to be issued to the
undersigned for the portion of the within Security not being repaid (in the
absence of any such specification, one such Security will be issued for the
portion not being repaid):__________________________.
Dated:_____________________ ______________________________
______________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the within Security in every particular, without alteration or
enlargement or any change whatever.
-25-
EXHIBIT 3
===============================================================================
PITNEY BOWES CREDIT CORPORATION,
Issuer
TO
SUNTRUST BANK, ATLANTA,
Trustee
---------
Indenture
Dated as of July 31, 1999
---------
===============================================================================
<PAGE>
Reconciliation and tie(1) between Trust Indenture Act of 1939, as amended, and
Indenture, dated as of July 31, 1999
between
Pitney Bowes Credit Corporation, Issuer
and
SunTrust Bank, Atlanta, Trustee
Trust Indenture Indenture
Act Section Section
Sec.310(a)(1)..................................................6.09
(a)(2).....................................................6.09
(a)(3).....................................................Not Applicable
(a)(4).....................................................Not Applicable
(b)........................................................6.08
...........................................................6.10
Sec.311(a).....................................................6.13(a)
(b)........................................................6.13(b)
(b)(2).....................................................7.03(a)(ii)
Sec.312(a).....................................................7.01
......................................................... 702(a)
(b)........................................................7.02(b)
(c)........................................................7.02(c)
Sec.313(a).....................................................7.03(a)
(b)........................................................7.03(b)
(c)........................................................7.03(a), 7.03(b)
(d)........................................................7.03(c)
Sec.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
Sec.315 (a)....................................................6.01(a)
- --------
(1)NOTE: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.
i
<PAGE>
(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
Sec.316 (a)....................................................1.01
(a)(1)(A)..................................................5.02
...........................................................5.12
(a)(1)(B)..................................................5.13
(a)(2).....................................................Not Applicable
(b)........................................................5.08
Sec.317 (a)(1).................................................5.03
(a)(2).....................................................5.04
(b)........................................................10.03
Sec.318 (a)....................................................1.07
ii
<PAGE>
TABLE OF CONTENTS
----------------------
PAGE
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS
SECTION 1.01. Definitions...................................................1
SECTION 1.02. Compliance Certificates and Opinions..........................9
SECTION 1.03. Form of Documents Delivered to Trustee.......................10
SECTION 1.04. Acts of Holders..............................................10
SECTION 1.05. Notices, Etc., to Trustee and Company........................11
SECTION 1.06. Notice of Holders; Waiver....................................12
SECTION 1.07. Conflict with Trust Indenture Act............................12
SECTION 1.08. Effect of Headings and Table of Contents.....................12
SECTION 1.09. 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 2.01. Forms Generally..............................................13
SECTION 2.02. Securities in Permanent Global Form..........................14
ARTICLE 3
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series.........................15
SECTION 3.02. Denominations................................................18
SECTION 3.03. Execution, Authentication, Delivery and Dating...............18
SECTION 3.04. Temporary Securities.........................................20
SECTION 3.05. Registration, Registration of Transfer and Exchange..........21
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities.............24
SECTION 3.07. Payment of Interest; Interest Rights Preserved...............25
SECTION 3.08. Persons Deemed Owners........................................26
SECTION 3.09. Cancellation.................................................27
SECTION 3.10. Computation of Interest......................................27
SECTION 3.11. Rights under Finance Agreement...............................27
<PAGE>
PAGE
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture......................27
SECTION 4.02. Defeasance of Securities of Any Series.......................29
SECTION 4.03. Application of Trust Funds; Indemnification..................30
SECTION 4.04. Reinstatement................................................31
ARTICLE 5
REMEDIES
SECTION 5.01. Events of Default............................................32
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment...........33
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee......................................................35
SECTION 5.04. Trustee May File Proofs of Claim.............................36
SECTION 5.05. Trustee May Enforce Claims Without Possession of
Securities...................................................37
SECTION 5.06. Application of Money Collected...............................37
SECTION 5.07. Limitation on Suits..........................................37
SECTION 5.08. Unconditional Right of Holders to Receive Principal,
Premium and Interest.........................................38
SECTION 5.09. 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 6.01. Certain Duties and Responsibilities..........................41
SECTION 6.02. Notice of Defaults...........................................42
SECTION 6.03. Certain Rights of Trustee....................................43
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities.......44
SECTION 6.05. May Hold Securities..........................................44
SECTION 6.06. Money Held in Trust..........................................44
SECTION 6.07. Compensation and Reimbursement...............................45
SECTION 6.08. Disqualification; Conflicting Interest.......................45
ii
<PAGE>
PAGE
SECTION 6.09. 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 7.01. Company to Furnish Trustee Names and Addresses of
Holders......................................................57
SECTION 7.02. Preservation of Information; Communications to Holders.......57
SECTION 7.03. Reports by Trustee...........................................58
SECTION 7.04. Reports by Company...........................................60
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms.........61
SECTION 8.02. Successor Corporation Substituted............................62
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders...........63
SECTION 9.02. Supplemental Indentures with Consent of Holders..............64
SECTION 9.03. Execution of Supplemental Indentures.........................65
SECTION 9.04. Effect of Supplemental Indentures............................65
SECTION 9.05. Conformity with Trust Indenture Act..........................66
SECTION 9.06. Reference in Securities to Supplemental Indentures...........66
ARTICLE 10
COVENANTS
SECTION 10.01. Payment of Principal, Premium and Interest..................66
SECTION 10.02. Maintenance of Office or Agency.............................66
SECTION 10.03. Money for Securities Payments to Be Held in Trust...........67
SECTION 10.04. Corporate Existence.........................................68
SECTION 10.05. Payment of Taxes and Other Claims...........................69
iii
<PAGE>
PAGE
SECTION 10.06. Maintenance of Finance Agreement............................69
SECTION 10.07. Restriction on Creation of Secured Debt.....................69
SECTION 10.08. Defeasance of Certain Obligations...........................72
SECTION 10.09. Certificate of Officers of the Company......................73
SECTION 10.10. Waiver of Certain Covenants.................................73
ARTICLE 11
REDEMPTION OF SECURITIES
SECTION 11.01. Applicability of Article....................................74
SECTION 11.02. Election to Redeem; Notice to Trustee.......................74
SECTION 11.03. Selection by Trustee of Securities to Be Redeemed...........74
SECTION 11.04. Notice of Redemption........................................75
SECTION 11.05. Deposit of Redemption Price.................................76
SECTION 11.06. Securities Payable on Redemption Date.......................76
SECTION 11.07. Securities Redeemed in Part.................................76
ARTICLE 12
SINKING FUNDS
SECTION 12.01. Applicability of Article....................................77
SECTION 12.02. Satisfaction of Sinking Fund Payments with Securities.......77
SECTION 12.03. Redemption of Securities for Sinking Fund...................77
ANNEX A - FORM OF SECURITIES................................................A1
iv
<PAGE>
INDENTURE, dated as of July 31, 1999, 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 1.01. 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
<PAGE>
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 1.04.
"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
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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 25 Park Place, 24th Floor, Attn:
Corporate Trust Department, Atlanta, Georgia 30303.
"Corporation" includes corporations, associations, companies and business
trusts.
"Defaulted Interest" has the meaning specified in Section 3.07.
"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 3.01, 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 5.01.
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"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 3.01.
"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.
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"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 5.02.
"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
4.02 in the necessary amount have been theretofore deposited with the Trustee
(or another trustee satisfying the requirements of Section 6.09) in trust for
the Holders of such Securities in accordance with Section 4.03; 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 4.02 and not reinstated pursuant to Section 4.04; and
(iv) Securities which have been paid pursuant to Section 3.06 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 5.02, (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 3.01, (C) the
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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 3.01, of the principal amount of such Security (or, in the case of a
Security described in Clause 1.01(d)(iv)(A) or 1.01(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 3.01.
"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 3.06 in exchange for or in lieu of a
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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 3.01.
"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 3.05.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.07.
"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.
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"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.
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"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 1.02. 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.
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SECTION 1.03. 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 1.04. 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
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(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 6.01) 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 1.05. 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
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(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 1.06. 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 1.07. 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 1.08. 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 1.09. Successors and Assigns
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
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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 2.01. 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
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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 3.03 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 2.02. Securities in Permanent Global Form
If the Company shall establish pursuant to Section 3.01 that the
Securities of a series are to be issued in whole or in part in permanent global
form, then notwithstanding Section 3.01(h) and the provisions of Section 3.02,
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 3.03 or Section 3.04. Subject to the provisions
of Section 3.03 and, if applicable, Section 3.04, 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 3.03 or 3.04 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 1.02 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.
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The provisions of the last sentence of Section 3.03 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 1.02 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 3.03.
Unless otherwise specified as contemplated by Section 3.01 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 3.01. 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 3.03,
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);
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(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 3.04, 3.05, 3.06, 9.06 or 11.07 and except for any Securities which,
pursuant to Section 3.03 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 3.07; 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 5.02;
(j) if applicable, that the Securities of the Series, in whole or any
specified part, shall be defeasible pursuant to Section 4.02 or Section 10.08
or
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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 2.02, (ii) any
circumstances in addition to or in lieu of those set forth in Clause 3.05(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
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requisite Holders of such Securities to declare the principal amount thereof due
and payable pursuant to Section 5.01;
(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 9.01(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 3.03) 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 3.02. 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 3.01. 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 3.03. Execution, Authentication, Delivery and Dating
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its President, one of its Vice Presidents or its Treasurer, under
its corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
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At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 2.01 and 3.01, 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
6.01) 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 2.01, 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 3.01, 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 3.01 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 3.01 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.
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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 2.02, 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 3.09 together with a written statement (which need not
comply with Section 1.02 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 3.04. 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
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entitled to the same benefits under this Indenture as definitive Securities of
such series.
SECTION 3.05. 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
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with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.04, 9.06 or 11.07 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 11.03 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 3.05(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 3.05(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 3.01.
(c) Subject to Clause 3.05(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
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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 3.05(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
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(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 3.05(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 3.04, 3.06, 9.06
or 11.07 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 3.06. 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.
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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 3.07. Payment of Interest; Interest Rights Preserved
Unless otherwise provided as contemplated by Section 3.01 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
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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 3.07(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 3.08. 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 3.07) 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.
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SECTION 3.09. 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 3.01 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 4.01. 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
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(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 3.06 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 10.03) 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 4.03(b) and 6.07, 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
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4.01(a)(ii), the obligations of the Trustee under Section 4.03 and the last
paragraph of Section 10.03 shall survive.
SECTION 4.02. Defeasance of Securities of Any Series
Unless otherwise specified pursuant to Section 3.01 with respect to the
Securities of any series, then notwithstanding Section 4.01, 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 4.02(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 4.02(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 3.05, 3.06, 4.03, 10.02 and 10.03; 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 4.02(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
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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
6.08 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 4.03. Application of Trust Funds; Indemnification
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(a) Subject to the provisions of the last paragraph of Section 10.03, all
money deposited with the Trustee pursuant to Section 4.01, all money and U.S.
Government Obligations deposited with the Trustee pursuant to Section 4.02 or
Section 10.08 and all money received by the Trustee in respect of U.S.
Government Obligations deposited with the Trustee pursuant to Section 4.02 or
Section 10.08 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 4.02 or Section
10.08, 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 4.02 or Section 10.08 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 4.02 or 10.08 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 4.04. Reinstatement
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 4.02 or 10.08 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 4.02 or 10.08 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 4.03 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
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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 5.01. 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
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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 5.02. Acceleration of Maturity; Rescission and Annulment
If an Event of Default described in clause 5.01(a), 5.01(b), 5.01(c),
5.01(d) or 5.01(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 5.01(a), 5.01(b), 5.01(c) or 5.01(g),
and all such series voting as one class in the case of such an Event of Default
under clause 5.01(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
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Default described in clause 5.01(d) with respect to all series of Securities
then Outstanding, or any Event of Default described in clause 5.01(e) or
5.01(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
6.07;
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
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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 5.03. 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
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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 5.04. 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 6.07.
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.
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SECTION 5.05. 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 5.06. 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 5.07. 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
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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 5.08. 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 3.07)
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 5.09. 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.
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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 3.06, 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 5.07.
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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 5.01(d) which relates to
less than all series of Outstanding Securities or described in clause 5.01(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 5.01(d), 5.01(e), and
5.01(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).
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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 6.01. 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
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(i) this Subsection shall not be construed to limit the effect of
Subsection 6.01(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 6.02. 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 7.03(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 5.01(d) with respect to Securities of such
series,
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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 6.03. Certain Rights of Trustee
Subject to the provisions of Section 6.01:
(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
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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 6.04. 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 6.05. 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 6.08 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 6.06. 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
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liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 6.07. 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 6.08. 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 6.08(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
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Holders of Securities of that series, as their names and addresses appear in
the Security Register, notice of such failure.
SECTION 6.09. 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.
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(d) If at any time:
(i) the Trustee shall fail to comply with Section 6.08(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 6.09 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
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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
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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
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(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
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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
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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
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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,
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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 3.06, 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.
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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 6.07.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
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This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
SUNTRUST BANK, ATLANTA,
As Trustee,
By
--------------------------------
as Authenticating Agent
By
--------------------------------
Authorized Officer
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ARTICLE 7
HOLDERS' LIST AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. 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 7.02. 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 7.01 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 7.01 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 7.02(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
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Securities whose names and addresses appear in the information preserved
at the time by the Trustee in accordance with Section 7.02(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 7.02(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 7.02(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
7.02(b).
SECTION 7.03. 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 7.03(c), a brief report dated as of such
April 1 with
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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 by transmitted):
(i) any change to its eligibility under Section 6.09 or the creation
of or any material change to its qualifications under Section 6.08;
(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 6.02.
(b) The Trustee shall transmit by mail to all Holders, as provided in
subsection 7.03(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 7.03(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
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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 7.03(b),
to all Holders of Securities whose names and addresses have been received
by the Trustee pursuant to Section 7.01.
(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 7.04. 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
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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 7.02(a) such summaries of any
information, documents and reports required to be filed by the Company pursuant
to paragraphs 7.04(a) and 7.04(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 8.01. 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
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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 8.02. 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
8.01, 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.
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ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.01. 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
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(f) to secure the Securities pursuant to the requirements of Sections
8.01(c) or 10.07 or otherwise; or
(g) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 3.01; 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 9.02. 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 5.02, 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
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(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 9.01(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 9.03. 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 6.01) 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 9.04. 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
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Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.05. 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 9.06. 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 10.01. 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 10.02. 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
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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 10.03. 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;
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(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 4.02 or
10.08) 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 10.04. 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
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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 10.05. 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 10.06. 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 10.07. 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
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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 10.07(a)(ii) or
10.07(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
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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
10.07(a) and 10.07(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 10.07, 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.
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SECTION 10.08. Defeasance of Certain Obligations
Unless otherwise specified pursuant to Section 3.01 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 10.08 are
satisfied, with any term, provision or condition set forth in Section 10.06 and
Section 10.07, 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 3.01(q)), if
(a) With reference to this Section 10.08, 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 10.08(a)(iii)(A) or
10.08(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 6.08 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;
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<PAGE>
(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 10.09. Certificate of Officers of the Company
On or before the last day of March of each year beginning with the year
2000, 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 10.04 to 10.07, 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.
73
<PAGE>
ARTICLE 11
REDEMPTION OF SECURITIES
SECTION 11.01. 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 3.01 for Securities of any series) in
accordance with this Article.
SECTION 11.02. 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 11.03. 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.
74
<PAGE>
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 11.04. 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.
75
<PAGE>
SECTION 11.05. 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 10.03) 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 11.06. 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 3.07.
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 11.07. 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
76
<PAGE>
and in exchange for the unredeemed portion of the principal of the Security in
permanent global form so surrendered.
ARTICLE 12
SINKING FUNDS
SECTION 12.01. 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 3.01 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 12.02. 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 12.02. 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 12.03. Redemption of Securities for Sinking Fund
77
<PAGE>
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 12.02 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 11.03 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 11.04. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
11.05, 11.06 and 11.07.
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.
78
<PAGE>
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 /s/ Jeffrey D. Ramos
-----------------------------------
Title: Treasurer
--------------------------------
By /s/ Christian D. Hughes
-----------------------------------
Title: Vice President & Secretary
--------------------------------
[Corporate Seal]
SUNTRUST BANK, ATLANTA, as Trustee
By /s/ Kristine Prall
-----------------------------------
Title: Trust Officer
--------------------------------
By /s/ Philip D. DeMouey
-----------------------------------
Title: Vice President
--------------------------------
[Corporate Seal]
79
<PAGE>
STATE OF CONNECTICUT )
) ss.: Susan Burbank
COUNTY OF FAIRFIELD ) Notary Public
On the 31 day of July, 1999, before me personally came Jeffrey Ramos and
Nancy Cooper to me known, who, being by me duly sworn, did depose and say that
they are Treasurer 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.
80
<PAGE>
STATE OF GEORGIA )
) ss.: Jack Ellerin
COUNTY OF FULTON ) Notary Public
On the 31 day of July, 1999, before me personally came Kristine Prall and
Philip D. DeMouey, to me known, who, being by me duly sworn, did depose and say
that they are the Trust Officer and Vice President, 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.
81
<PAGE>
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. .... $ .....
<PAGE>
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.]
A-2
<PAGE>
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.
A-3
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
PITNEY BOWES CREDIT CORPORATION
By
-----------------------------------
Attest:
A-4
<PAGE>
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
A-5
<PAGE>
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
A-6
<PAGE>
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.]
A-7
<PAGE>
[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
A-8
<PAGE>
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
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<PAGE>
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.
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