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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (date of earliest event reported)
March 26, 1999
XEROX CORPORATION
(Exact name of registrant as specified in its charter)
New York 1-4471 16-0468020
(State or other (Commission File (IRS Employer
jurisdiction of Number) Identification
incorporation) No.)
800 Long Ridge Road
P. O. Box 1600
Stamford, Connecticut 06904-1600
(Address of principal executive offices)(Zip Code)
Registrant's telephone number, including area code:
(203) 968-3000
This document consists of 76 pages.
Item 5. Other Events
Reference is made to the information regarding the lawsuits commenced by
former employees of Crum & Forster Holdings, Inc. contained under Note 15
"Litigation" on page 58 of Registrant's 1998 Annual Report to Shareholders.
In the action pending in the United States District Court for the Western
District of Texas plaintiffs' amended motion for class certification was
denied by the Court on March 26, 1999.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits
Exhibit 1(c) --Form of Selling Agency Agreement
Exhibit 4(c)(12) --Form of Medium-Term Note
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
Registrant has duly authorized this report to be signed on its behalf by the
undersigned duly authorized.
XEROX CORPORATION
/s/ MARTIN S. WAGNER
--------------------------------
By: MARTIN S. WAGNER
Assistant Secretary
Dated: April 5, 1999
2
Exhibit 1(c)
Xerox Corporation
Xerox Capital (Europe) plc
$4,485,700,000 Medium-Term Notes, Series F
Due Nine Months or More from Date of Issue
SELLING AGENCY AGREEMENT
March 25, 1999
New York, New York
Chase Securities Inc. Merrill Lynch & Co.
270 Park Avenue Merrill Lynch, Pierce, Fenner & Smith
New York, N.Y. 10017 Incorporated
World Financial Center
Goldman, Sachs & Co. North Tower
85 Broad Street New York, N.Y. 10281-1310
New York, N.Y. 10004
Lehman Brothers Inc. J.P. Morgan Securities Inc.
3 World Financial Center 60 Wall Street
New York, N.Y. 10285 New York, N.Y. 10260
Morgan Stanley & Co. Incorporated Salomon Smith Barney Inc.
1585 Broadway Seven World Trade Center
New York, NY 10036 New York, N.Y. 10048
Dear Sirs:
Each of Xerox Corporation, a New York corporation ("Xerox"), and Xerox Capital
(Europe) plc (formerly, Rank Xerox Capital (Europe) plc), a public limited
company organized under the laws of England and Wales ("Xerox Capital", and
together with Xerox, the "Issuers"), confirms its agreement with each of you
with respect to the issue and sale of its Medium-Term Notes, Series F, Due
Nine Months or More from Date of Issue (the "Notes"). The aggregate principal
amount (or the equivalent thereof in one or more foreign currencies or units
consisting of multiple currencies) of Notes which the Issuers may issue and
sell at any time shall not exceed U.S.$4,485,700,000, less the aggregate
principal amount (or the equivalent thereof in one or more foreign currencies
or units consisting of multiple currencies) of all Notes of both Issuers
issued and sold immediately prior thereto. All Notes of Xerox Capital will be
fully and unconditionally guaranteed (the "Guarantees") as to payment of
principal and any premium or interest by Xerox, and all references herein to
the "Guarantor" shall only refer to Xerox acting in such capacity and only be
applicable with respect to Notes of Xerox Capital (or particular series
thereof which are sold pursuant to the terms of this Agreement). All Notes
and any Guarantees thereof will be issued under an indenture dated as of
October 21, 1997 (as the same may be amended or supplemented from time to
time, the "Indenture"), among the Issuers, Xerox Overseas Holdings Limited
(formerly Xerox Overseas Holdings PLC), the Guarantor and Citibank, N.A., as
trustee (the "Trustee"). Unless otherwise specified in the applicable pricing
supplement, the Notes will be issued in minimum denominations of U.S. $1,000
and any amount in excess thereof that is an integral multiple thereof (or in
such other denominations in such other currencies as shall be provided in a
supplement to the Prospectus referred to below), will be issued only in fully
registered form and will have the annual interest rates, maturities and, if
appropriate, other terms set forth in a supplement to the Prospectus referred
to below. The Notes will be issued, and the terms thereof established, in
accordance with the Indenture and the Medium-Term Notes Administrative
Procedures attached hereto as Exhibit A (the "Procedures") (unless a Terms
Agreement (as defined in Section 2(b)) modifies or otherwise supersedes such
Procedures with respect to Notes issued pursuant to such Terms Agreement).
The Procedures may only be amended by written agreement of the Issuers, the
Guarantor and you after notice to, and with the approval of, the Trustee. For
the purposes of this Agreement, the term "Company" shall refer to the relevant
Issuer offering the Notes, the term "Agent" shall refer to any of you acting
solely in the capacity as agent for the relevant Issuer pursuant to Section
2(a) and not as principal (collectively, the "Agents"), the term the
"Purchaser" shall refer to one of you acting solely as principal pursuant to
Section 2(b) and not as agent, and the term "you" shall refer to you
collectively whether at any time any of you is acting in both such capacities
or in either such capacity.
1. REPRESENTATIONS AND WARRANTIES. Each of the Company and the
Guarantor represents and warrants to, and agrees with, you as set forth below
in this Section 1. Certain terms used in this Section 1 are defined in
paragraph (d) hereof.
(a) Each of the Company and the Guarantor meets the requirements
for use of Form S-3 under the Securities Act of 1933 (the "Act") and has filed
with the Securities and Exchange Commission (the "Commission") a registration
statement on such Form (File Numbers: 333-34333 and 333-34333-01), (together,
"Registration Statement No. 333-34333") including a basic prospectus, which
has become effective, for the registration under the Act of U.S.
$4,000,000,000 aggregate principal amount (or the equivalent thereof in one or
more foreign currencies or units consisting of multiple currencies) of debt
securities and has filed with the Commission a registration statement on such
Form S-3 (File Number: 333-73173) ( "Registration Statement No. 333-73173"),
including a basic prospectus, which has been filed with the Commission and has
become effective, for the registration under the Act of U.S. $4,000,000,000
aggregate principal amount (or the equivalent thereof in one or more foreign
currencies or units consisting of multiple currencies) of debt securities and
capital stock (such debt securities, together with the debt securities
registered pursuant to Registration Statement No. 333-34333, the
"Securities"), constituting $4,485,700,000 aggregate principal amount of the
Notes. Such registration statements, as amended at the date of this Agreement
(the "Registration Statements"), meet the requirements set forth in Rule
415(a)(l)(ix) or (x) under the Act and comply in all other material respects
with said Rule. Each of the Company and the Guarantor has included in such
registration statements, or has filed or will file with the Commission
pursuant to the applicable paragraph of Rule 424(b) under the Act, a
supplement to the form of prospectus included in such registration statements
relating to the Notes and the plan of distribution thereof (the "Prospectus
Supplement"). In connection with the sale of Notes, the Company and the
Guarantor propose to file with the Commission pursuant to the applicable
paragraph of Rule 424(b) under the Act further supplements to the Prospectus
Supplement specifying the interest rates, maturity dates and, if appropriate,
other terms of the Notes sold pursuant hereto or the offering thereof.
(b) As of the Execution Time, on each applicable Effective Date,
when any supplement to the Prospectus is filed with the Commission, as of the
date of any Terms Agreement (as defined by Section 2(b)), at the date of
acceptance by the Company of an offer to purchase any Notes and at the date of
delivery by the Company of any Notes sold hereunder (a "Closing Date"), (i)
the Registration Statements, as amended as of any such time, and the
Prospectus, as supplemented as of any such time, and the Indenture will comply
in all material respects with the applicable requirements of the Act, the
Trust Indenture Act of 1939 (the "Trust Indenture Act") and the Securities
Exchange Act of 1934 (the "Exchange Act") and the respective rules thereunder;
(ii) the Registration Statements, as amended as of any such time, did not or
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading; and (iii) the Prospectus, as supplemented
as of any such time, will not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company and the Guarantor make no
representations or warranties as to (i) that part of the Registration
Statements which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (ii)
the information contained in or omitted from the Registration Statements or
the Prospectus (or any supplement thereto) in reliance upon and in conformity
with information furnished in writing to the Company or the Guarantor by any
of you specifically for use in connection with the preparation of the
Registration Statements or the Prospectus (or any supplement thereto).
(c) As of the time any Notes are issued and sold hereunder, the
Indenture will constitute a legal, valid and binding instrument enforceable
against the Company, and if applicable, the Guarantor in accordance with its
terms (subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect and to general principles of
equity); such Notes will have been duly authorized, executed, authenticated
and, when paid for by the purchasers thereof, will constitute legal, valid and
binding obligations of the Company entitled to the benefits of the Indenture;
and any Guarantees relating to such Notes will have been duly authorized,
executed and delivered and, when such Notes are issued and delivered against
payment therefor by the purchasers thereof, will constitute legal, valid and
binding obligations of the Guarantor entitled to the benefits of the
Indenture.
(d) The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "the Effective Date" shall mean each date
that each Registration Statement and any post-effective amendment or
amendments thereto became or become effective. "Execution Time" shall mean the
date and time that this Agreement is executed and delivered by the parties
hereto. "Basic Prospectus" shall mean the form of basic prospectus relating
to the Securities contained in Registration Statement No. 333-73173 at the
Effective Date, which basic prospectus is a combined prospectus relating to
both Registration Statements. "Prospectus" shall mean the Basic Prospectus as
supplemented by the Prospectus Supplement and any applicable Pricing
Supplement. "Registration Statement" shall mean each registration statement
referred to in paragraph (a) above, including incorporated documents, exhibits
and financial statements, as amended at the Execution Time. "Registration
Statements" shall mean both Registration Statements. "Rule 415" and "Rule
424" refer to such rules under the Act. Any reference herein to the
Registration Statements, the Basic Prospectus, the Prospectus Supplement or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Exchange Act on or before the Effective Date of the
Registration Statements or the issue date of the Basic Prospectus, the
Prospectus Supplement or the Prospectus, as the case may be; and any reference
herein to the terms "amend", "amendment" or "supplement" with respect to the
Registration Statements, the Basic Prospectus, the Prospectus Supplement or
the Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date of the Registration
Statements or the issue date of the Basic Prospectus, the Prospectus
Supplement or the Prospectus, as the case may be, deemed to be incorporated
therein by reference.
2. APPOINTMENT OF AGENTS; SOLICITATION BY THE AGENTS OF OFFERS TO
PURCHASE; SALES OF NOTES TO A PURCHASER.
(a) Subject to the terms and conditions set forth herein, each of
the Issuers and Guarantor hereby authorizes each of the Agents to act as its
agent to solicit offers for the purchase of all or part of the Notes from each
such Issuer.
On the basis of the representations and warranties, and subject to the
terms and conditions set forth herein, each of the Agents agrees, as agent of
each of the Issuers and Guarantor, to use its reasonable best efforts to
solicit offers to purchase the Notes from each such Issuer upon the terms and
conditions set forth in the Prospectus (and any supplement thereto) and in the
Procedures.
Each of the Issuers and Guarantor 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 Notes of such
Issuer. Upon receipt of such instructions, the Agents will forthwith suspend
solicitation of offers to purchase Notes from such Issuer until such time as
such Issuer or the Guarantor has advised them that such solicitation may be
resumed.
Each of the Company and the Guarantor agrees to pay each Agent a
commission, on the Closing Date with respect to each sale of Notes by the
Company as a result of a solicitation made by such Agent, in an amount equal
to that percentage specified in Schedule I hereto of the aggregate principal
amount of the Notes sold by the Company. Such commission shall be payable as
specified in the Procedures.
Subject to the provisions of this Section and to the Procedures, offers
for the purchase of Notes may be solicited by an Agent as agent for any Issuer
or the Guarantor at such time and in such amounts as such Agent deems
advisable. Any Issuer and the Guarantor may from time to time offer Notes and
any Guarantees relating thereto for sale otherwise than through an Agent. None
of the Issuers and the Guarantor shall appoint any agent to solicit offers to
purchase Notes or any Guarantees relating thereto without entering into an
agreement with such agent which is substantially similar to this Agreement
and, in the case of an appointment of any agent to solicit offers to purchase
Notes or any Guarantees relating thereto for the duration of this Agreement,
without giving each of the Agents prompt notice thereof.
(b) Subject to the terms and conditions stated herein, whenever the
Company and one of you determine that the Company shall sell Notes directly to
you as principal, each such sale of Notes shall be made in accordance with the
terms of this Agreement and a supplemental agreement relating to such sale
among the Company, the Guarantor and the Purchaser. Each such supplemental
agreement (which may be an oral or written agreement) is herein referred to as
a "Terms Agreement". The Purchaser's commitment to purchase Notes of the
Company pursuant to any Terms Agreement shall be deemed to have been made on
the basis of the representations and warranties of the Company and the
Guarantor herein contained and shall be subject to the terms and conditions
herein set forth. Each Terms Agreement (i) shall describe (whether orally or
in writing) the Notes to be purchased by the Purchaser pursuant thereto,
specify the principal amount of such Notes, the price to be paid to the
Company for such Notes, the rate at which interest will be paid on the Notes,
the Closing Date for such Notes, the place of delivery of the Notes and
payment therefor and the method of payment, and (ii) may also describe
(whether orally or in writing) any requirements for the delivery of opinions
of counsel, certificates from Xerox or its officers, or a letter from the
Company's independent public accountants, as described in Section 6(b), the
period of time referred to in Section 4(m) (if applicable), and any other
terms and conditions.
Delivery of the certificates for Notes of the Company sold to the
Purchaser pursuant to a Terms Agreement shall be made not later than the
Closing Date agreed to in such Terms Agreement, against payment of funds to
the Company in the net amount due to the Company for such Notes, by the method
and in the form set forth in the Procedures unless otherwise agreed to among
the Company, the Guarantor and the Purchaser in such Terms Agreement.
Unless otherwise agreed to among the Company, the Guarantor and the
Purchaser in a Terms Agreement, any Note of the Company sold to a Purchaser
(i) shall be purchased by such Purchaser at a price equal to 100% of the
principal amount thereof less a percentage equal to the commission applicable
to an agency sale of a Note of identical maturity and (ii) may be resold by
such Purchaser at varying prices from time to time or if set forth in the
applicable Terms Agreement and Pricing Supplement, at a fixed public offering
price. In connection with any resale of Notes purchased, a Purchaser may use
a selling or dealer group and may reallow to any broker or dealer any portion
of the discount or commission payable pursuant hereto.
3. OFFERING AND SALE OF NOTES. Each Agent, the Company and the
Guarantor agree to perform the respective duties and obligations specifically
provided to be performed by them in the Procedures, and each Agent shall
comply with the United Kingdom selling restrictions set forth on Schedule II
attached hereto.
4. AGREEMENTS. Each of the Company and the Guarantor agrees with you
that:
(a) Prior to the termination of the offering of the Notes of the
Company (including by way of resale by a Purchaser thereof), it will not file
any amendment of the Registration Statements or supplement to the Prospectus
(except for (i) periodic and current reports and other documents filed under
the Exchange Act, (ii) a supplement relating to any offering of Notes
providing solely for the specification of or a change in the maturity dates,
interest rates, issuance prices or other similar terms of any Notes or (iii) a
supplement relating to an offering of Securities other than the Notes) unless
it has furnished to each of you a copy for your review prior to filing and
given each of you a reasonable opportunity to comment on any such proposed
amendment or supplement. Subject to the foregoing sentence, Each of the
Company and the Guarantor will cause each supplement to the Prospectus to be
filed with the Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence satisfactory to
you of such filing. Each of the Company and the Guarantor will promptly advise
each of you (i) when the Prospectus, and any supplement thereto, shall have
been filed with the Commission pursuant to Rule 424(b), (ii) when any
amendment of the Registration Statements shall have been filed or become
effective (except, in the case of clauses (i) and (ii) of this sentence, for
(x) periodic and current reports and other documents filed under the Exchange
Act, (y) a supplement relating to any offering of Notes of the Company
providing solely for the specification of or a change in the maturity dates,
interest rates, issuance prices or other similar terms of any such Notes, in
respect of which you shall not be acting as Agent or Purchaser or (z) a
supplement relating to an offering of Securities other than the Notes of any
of the Issuers), (iii) of any request by the Commission for any amendment of
the Registration Statements or supplement to the Prospectus or for any
additional information, (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statements or the
institution or threatening of any proceeding for that purpose and (v) of the
receipt by it of any notification with respect to the suspension of the
qualification of the Notes of the Company for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. Each of the
Company and the Guarantor will use its reasonable best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as possible
the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes of the
Company is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then supplemented would include any untrue
statement of a material fact relating to the Company or the Guarantor or omit
to state any material fact necessary to make the statements relating to the
Company or the Guarantor therein, in the light of the circumstances under
which they were made, not misleading, or if it shall be necessary to amend the
Registration Statements or to supplement the Prospectus to comply with the Act
or the Exchange Act or the respective rules thereunder, the Company and the
Guarantor promptly will (i) notify each of you to suspend solicitation of
offers to purchase Notes of the Company (and, if so notified by the Company or
the Guarantor, each of you shall forthwith suspend such solicitation and cease
using the Prospectus as then supplemented), (ii) prepare and file with the
Commission, subject to the first sentence of paragraph (a) of this Section 4,
an amendment or supplement which will correct such statement or omission or
effect such compliance and (iii) supply any supplemented Prospectus to each of
you in such quantities as you may reasonably request. If such amendment or
supplement, and any documents, certificates and opinions furnished to each of
you pursuant to paragraph (g) of this Section 4 in connection with the
preparation or filing of such amendment or supplement are satisfactory in all
respects to you, you will, upon the filing of such amendment or supplement
with the Commission and upon the effectiveness of an amendment to the
Registration Statements, if such an amendment is required, resume your
obligation to solicit offers to purchase Notes of the Company hereunder.
(c) Xerox, during the period when a prospectus relating to Notes of
either Issuer is required to be delivered under the Act, will file promptly
all documents required to be filed with the Commission pursuant to Section
13(a) or 13(c) of the Exchange Act and will furnish to each of you copies of
such documents. In addition, on or prior to the date on which Xerox makes any
announcement to the general public concerning earnings or concerning any other
event which is required to be described, or which Xerox proposes to describe,
in a document filed pursuant to the Exchange Act, Xerox will furnish to each
of you the information contained or to be contained in such announcement.
Xerox also will furnish to each of you copies of all other material press
releases or announcements made by Xerox to the general public affecting any of
the Notes. Xerox will immediately notify each of you of any downgrading in the
rating of its Notes or any of its other debt securities, or any proposal to
downgrade the rating of its Notes or any of its other debt securities, by
Moody's Investors Service, Inc. and/or Standard & Poor's Corporation, as soon
as Xerox learns of any such downgrading or proposal to downgrade.
(d) As soon as practicable, Xerox will make generally available to
its security holders and to each of you an earnings statement or statements of
Xerox and its subsidiaries which will satisfy the provisions of Section 11(a)
of the Act and Rule 158 under the Act.
(e) Xerox will furnish to each of you and your counsel, without
charge, copies of the Registration Statements (including exhibits thereto)
and, so long as delivery of a prospectus may be required by the Act, as many
copies of the Prospectus and any supplement thereto as you may reasonably
request.
(f) The Company and the Guarantor will arrange for the
qualification of the Notes for sale under the laws of such jurisdictions as
any of you may reasonably designate, will maintain such qualifications in
effect so long as required for the distribution of the Notes.
(g) The Company and the Guarantor shall furnish to each of you such
information, documents, certificates of directors or officers of such Company
and the Guarantor and opinions of counsel for such Company and the Guarantor
relating to the business, operations and affairs of such Company and the
Guarantor, the Registration Statements, the Prospectus, and any amendments
thereof or supplements thereto, the Indenture, the Notes, this Agreement, the
Procedures and the performance by such Company, the Guarantor and you of their
and your respective obligations hereunder and thereunder as any of you may
from time to time and at any time prior to the termination of this Agreement
reasonably request.
(h) Unless otherwise agreed as between the Company and any of you,
each of the Company and the Guarantor, jointly and severally, shall, whether
or not any sale of the Notes is consummated, (i) pay all expenses incident to
the performance of their obligations under this Agreement, including the fees
and disbursements of their accountants and counsel, the cost of printing or
other production and delivery of the Registration Statements, the Prospectus,
all amendments thereof and supplements thereto, the Indenture, this Agreement
and all other documents relating to the offering, the cost of preparing,
printing, packaging and delivering the Notes, the fees and disbursements,
including fees of counsel, incurred in compliance with Section 4(f), the fees
and disbursements of the Trustee and the fees of any agency that rates the
Notes, (ii) reimburse each of you on a monthly basis for all reasonable out-
of-pocket expenses (including without limitation advertising expenses, but
only with respect to advertising which has been approved, in advance, by the
Company and the Guarantor) incurred by you in connection with this Agreement
and (iii) pay the reasonable fees and expenses of your counsel incurred in
connection with this Agreement.
(i) Each acceptance by the Company of an offer to purchase Notes of
the Company will be deemed to be an affirmation that the representations and
warranties of the Company and the Guarantor contained in this Agreement are
true and correct at the time of such acceptance, as though made at and as of
such time, and a covenant that such representations and warranties will be
true and correct at the time of delivery to the purchaser of the Notes
relating to such acceptance, as though made at and as of such time (it being
understood that for purposes of the foregoing affirmation and covenant such
representations and warranties shall relate to the Registration Statements and
Prospectus as amended or supplemented at each such time). Each such
acceptance by the Company of an offer for the purchase of such Notes shall be
deemed to constitute an additional representation, warranty and agreement by
the Company and the Guarantor that, as of the settlement date for the sale of
such Notes, after giving effect to the issuance of such Notes, of any other
Notes to be issued on or prior to such settlement date and of any other
Securities to be issued and sold by any of the Issuers on or prior to such
settlement date, the aggregate amount of Securities (including any Notes)
which have been issued and sold by all of the Issuers will not exceed the
amount of Securities registered pursuant to the Registration Statements.
(j) Each time that any Registration Statement or the Prospectus is
amended or supplemented (other than by an amendment or supplement (i) relating
to any offering of Securities other than the Notes, (ii) providing solely for
the specification of or a change in the maturity dates, the interest rates,
the issuance prices or other similar terms of any particular Notes sold
pursuant hereto or (iii) relating to any filing under the Exchange Act (except
quarterly reports on Form 10-Q and annual reports on Form 10-K filed
thereunder), unless in the case of clause (iii) above, in the reasonable
judgment of any of you, as evidenced by your written notice to the Issuers and
the Guarantor, such filing is of such a nature that such a certificate should
be delivered), Xerox will deliver or cause to be delivered promptly to each of
you a certificate of Xerox, signed by its Chairman of the Board or a Vice
President with knowledge of the matters set forth in the certificate and its
principal financial or accounting officer , dated the date of the
effectiveness of such amendment or the date of the filing of such supplement,
in form reasonably satisfactory to you, of the same tenor as the certificate
referred to in Section 5(g) but modified to relate to the last day of the
fiscal quarter for which financial statements of Xerox were last filed with
the Commission and to the Registration Statements and the Prospectus as
amended and supplemented to the time of the effectiveness of such amendment or
the filing of such supplement.
(k) Each time that any Registration Statement or the Prospectus is
amended or supplemented (other than by an amendment or supplement (i) relating
to any offering of Securities other than the Notes, (ii) providing solely for
the specification of or a change in the maturity dates, the interest rates,
the issuance prices or other similar terms of any Notes sold pursuant hereto
or (iii) relating to any filing under the Exchange Act (except annual reports
on Form 10-K filed thereunder, unless, in the case of clause (iii) above, in
the reasonable judgment of any of you, such filing is of such a nature that an
opinion of counsel should be furnished), the Company shall furnish or cause to
be furnished promptly to each of you a written opinion of counsel of the
Issuers and the Guarantor satisfactory to each of you, dated the date of the
effectiveness of such amendment or the date of the filing of such supplement,
in form reasonably satisfactory to each of you, of the same tenor as the
opinion referred to in Section 5(b) but modified to relate to the Registration
Statements and the Prospectus as amended and supplemented to the time of the
effectiveness of such amendment or the filing of such supplement or, in lieu
of such opinion, counsel last furnishing such an opinion to you may furnish
each of you with a letter to the effect that you may rely on such last opinion
to the same extent as though it were dated the date of such letter authorizing
reliance (except that statements in such last opinion will be deemed to relate
to the Registration Statements and the Prospectus as amended and supplemented
to the time of the effectiveness of such amendment or the filing of such
supplement).
(l) Each time that any Registration Statement or the Prospectus is
amended or supplemented (other than an amendment or supplement (i) relating to
any offering of Securities other than the Notes, (ii) providing solely for the
specification of or a change in the maturity dates, the interest rates or
issuance prices or other similar terms of any Notes sold pursuant hereto or
(iii) relating to any filing under the Exchange Act (except quarterly reports
on Form 10-Q and annual reports on Form 10-K filed thereunder), unless in the
case of clause (iii) above, in the reasonable judgment of any of you, as
evidenced by your written notice to the Issuers and the Guarantor, such filing
is of such a nature that such a letter should be furnished) to include or
incorporate amended or supplemental financial information, the Company and the
Guarantor shall cause their independent certified public accountants promptly
to furnish each of you a letter, dated the date of the effectiveness of such
amendment or the date of the filing of such supplement, in form reasonably
satisfactory to each of you, of the same tenor and scope as the letter
referred to in Section 5(h) with such changes as may be necessary to reflect
the amended and supplemental financial information included or incorporated by
reference in the Registration Statements and the Prospectus, as amended or
supplemented to the date of such letter.
(m) During the period from the date of any Terms Agreement to the
Closing Date with respect to such Terms Agreement or such other period as may
be agreed to by the Company and the Purchaser thereunder, the Company shall
not, without the prior consent of such Purchaser, issue or announce the
proposed issuance of any of its debt securities, including Notes of the
Company (other than the Notes that are to be sold pursuant to such Terms
Agreement), with terms substantially similar to the Notes being purchased
pursuant to such Terms Agreement, other than borrowings under its revolving
credit agreements and lines of credit and issuances of its commercial paper.
5. CONDITIONS TO THE OBLIGATIONS OF THE AGENTS. The obligations of each
Agent to solicit offers to purchase the Notes of the Company shall be subject
to the accuracy, in all material respects, of the representations and
warranties on the part of the Company and the Guarantor contained herein as of
the Execution Time, on the Effective Date, when any supplement to the
Prospectus is filed with the Commission, at the date of acceptance by the
Company of an offer to purchase any Notes and as of each Closing Date, to the
accuracy, in all material respects, of the statements of the Company and the
Guarantor made in any certificates pursuant to the provisions hereof, to the
performance by the Company and the Guarantor, in all material respects, of
their respective obligations hereunder and to the following additional
conditions:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such supplement,
shall have been filed in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statements shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) The Company and the Guarantor shall have furnished to each Agent
the opinion of the Vice President and General Counsel or any Associate General
Counsel for Xerox, acting as U.S. counsel to the Company and the Guarantor,
dated the Execution Time, to the effect that:
(i) Each of Xerox and Xerox Financial Services, Inc.
("Services") has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction in which it is
chartered or organized, with full corporate power and authority to own its
properties and conduct its business as described in the Prospectus, and is
duly qualified to do business as a foreign corporation and is in good standing
under the laws of each jurisdiction which requires such qualification wherein
it owns or leases material properties or conducts material business, except
where the failure to so qualify, individually or in the aggregate, would not
have a material adverse effect on the condition (financial or other),
earnings, business or properties of Xerox or Services, as the case may be, and
its subsidiaries, taken as a whole;
(ii) all the outstanding shares of capital stock of Services
have been duly and validly authorized and issued and are fully paid and non-
assessable and all of such shares are owned by Xerox, free and clear of any
perfected security interest and, to the knowledge of such counsel, after due
inquiry, any other security interests, claims, liens or encumbrances;
(iii) Xerox' authorized equity capitalization is as set forth
in the Prospectus; and the Notes conform to the description thereof contained
in the Prospectus (subject to the insertion in the Notes of the maturity
dates, the interest rates and other similar terms thereof which will be
described in supplements to the Prospectus as contemplated by the last
sentence of Section 1(a) of this Agreement);
(iv) the Indenture has been duly authorized, executed and
delivered by Xerox, has been duly qualified under the Trust Indenture Act and,
assuming due authorization, execution and delivery by the Trustee and the
other parties thereto, constitutes a legal, valid and binding instrument
enforceable against each of the Issuers and the Guarantor in accordance with
its terms (subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect and to general principles of
equity); and the Notes of Xerox have been duly authorized by Xerox and, such
Notes of Xerox and the Notes of Xerox Capital, assuming due authorization by
Xerox Capital, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the purchasers
thereof, will constitute legal, valid and binding obligations of the relevant
Issuer entitled to the benefits of the Indenture;
(v) the Guarantees have been duly authorized, executed and
delivered by the Guarantor, and constitute valid and legally binding
obligations of the Guarantor enforceable in accordance with their terms
(subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect and to general principles of
equity);
(vi) to the best knowledge of such counsel, there is no pending
or threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or any of
its subsidiaries, of a character required to be disclosed in the Registration
Statements which is not adequately disclosed in the Prospectus, and there is
no franchise, contract or other document of a character required to be
described in the Registration Statements or Prospectus, or to be filed as an
exhibit, which is not described or filed as required; and the statements
included or incorporated in the Prospectus describing any legal proceedings or
material contracts or agreements relating to the Company fairly summarize such
matters in all material respects;
(vii) each Registration Statement has become effective under
the Act; any required filing of the Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner and within the time period
required by Rule 424(b); to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statements has been issued,
no proceedings for that purpose have been instituted or threatened, and the
Registration Statements and the Prospectus (other than the financial
statements and other financial and statistical information contained therein
as to which such counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Act and the Exchange
Act and the respective rules thereunder; and such counsel has no reason to
believe that the Registration Statements at their respective Effective Dates
or at the Execution Time 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 or that the Prospectus, as
supplemented, at its date or at the Closing Date includes any untrue statement
of a material fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
(viii) this Agreement has been duly authorized, executed and
delivered by Xerox;
(ix) no consent, approval, authorization or order of any New
York or U.S. Federal court or governmental agency or body is required for the
consummation of the transactions contemplated herein except such as have been
obtained under the Act, the Exchange Act and the Trust Indenture Act and such
as may be required pursuant to the undertaking in the last paragraph of Item
17 of the Registration Statements and under the blue sky laws of any
jurisdiction in connection with the sale of the Notes as contemplated by this
Agreement and such other approvals (specified in such opinion) as have been
obtained;
(x) the execution and delivery of the Indenture by the Issuers
(assuming due execution and delivery by the Trustee and the other parties
thereto) and the Guarantor, the execution and delivery of the Guarantees by
the Guarantor, the issue and sale of the Notes, and the consummation of all
other transactions herein contemplated and the fulfillment of the terms hereof
will not conflict with, will not result in a breach of, and will not
constitute a default under, the charter or by-laws of Xerox, the terms of any
indenture or other agreement or instrument known to such counsel and to which
any of the Issuers or the Guarantor, or any of their subsidiaries is a party
or bound, or any order or regulation known to such counsel to be generally
applicable to any of the Issuers or the Guarantor, or any of their
subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the any such Issuer
or the Guarantor, or any such subsidiaries; and
(xi) no holders of securities of any of the Issuers or the
Guarantor have rights to the registration of such securities under the
Registration Statements.
In rendering such opinion, such counsel may rely (A) as to matters involving
the application of laws of any jurisdiction other than the State of New York
or the United States, to the extent deemed proper and specified in such
opinion, upon the opinion of other counsel of good standing believed to be
reliable and who are satisfactory to counsel for the Agent and (B) as to
matters of fact, to the extent deemed proper, on certificates of responsible
officers of the relevant Issuers, the Guarantor and public officials.
References to the Prospectus in this paragraph (b) include any supplements
thereto at the date such opinion is rendered.
(c) The Company shall have furnished to each Agent the opinion of
Lovell White Durrant, special United Kingdom counsel to Xerox Capital, dated
the Execution Time, to the effect that:
(i) Xerox Capital has been duly incorporated and is validly
existing as a public limited company under English law;
(ii) no consents, approvals, authorisations, orders,
registrations or filings of or with any governmental or other authority in the
United Kingdom are required for the creation, issue and delivery by Xerox
Capital or the offering of its Notes on the terms of the Registration
Statement or in connection with the performance by Xerox Capital of its
obligations under the Indenture and this Agreement (together the "Relevant
Agreements") and its Notes;
(iii) Xerox Capital has corporate power to enter into and to
perform its obligations under the Relevant Agreements, to issue and to perform
its obligations under its Notes and to submit to the jurisdiction of any
United States or New York State court in the Borough of Manhattan, The City of
New York, New York and to appoint Xerox as its authorised agent for the
purposes and to the extent described in Section 1.13 of the Indenture;
(iv) the Relevant Agreements have been duly authorised, executed
by or on behalf of and delivered by Xerox Capital and (assuming the due
authorisation, execution and delivery thereof by the other parties thereto and
subject to the Relevant Agreements being in a proper legal form under the laws
of the State of New York (by which they are expressed to be governed) and the
obligations of Xerox Capital thereunder, including, but without limitation,
the submission by Xerox Capital to the jurisdiction of any United States or
New York State court in the Borough of Manhattan, The City of New York, New
York, constituting valid and legally binding obligations enforceable under the
laws of the State of New York) constitute valid and binding obligations of
Xerox Capital;
(v) the execution and delivery of the Relevant Agreements by
Xerox Capital has not resulted, and the issue of the Notes of Xerox Capital in
the manner therein contemplated will not result, in (A) any breach or
violation of the terms of the Memorandum and Articles of Association of Xerox
Capital or (B) any existing laws or regulations of any governmental or
regulatory body in the United Kingdom being infringed;
(vi) due payment by Xerox Capital of the principal and interest
(including additional amounts under the terms and conditions of the Notes of
Xerox Capital) on the Notes of Xerox Capital will not infringe any existing
laws or regulations of any governmental or regulatory body in the United
Kingdom;
(vii) on the assumption that the Agents have complied with and
will comply with the provisions of Section 3 of the Selling Agency Agreement
(including Schedule II thereto), no filing or registration of a prospectus is
necessary under The Public Offers of Securities Regulations 1995 in connection
with the offering or sale of the Notes of Xerox Capital;
(viii) the statements contained in the Registration Statement
under the headings "Description of the Debt Securities and Guaranties -
Limitations Affecting Security Holders" and "Xerox Capital - Enforceability of
Certain Civil Liabilities", insofar as such statements constitute a summary of
the legal matters under English law referred to therein, fairly summarise such
legal matters as are specifically addressed therein;
(ix) no ad valorem United Kingdom stamp duty or stamp duty
reserve tax will be payable in connection with the entering into of any of the
Relevant Agreements;
(x) the express choice of the laws of the State of New York to
govern the Relevant Agreements will be recognised and upheld by an English
court, but such choice of law will not displace mandatory rules of law
applicable in another jurisdiction with which the relevant transaction is
otherwise solely connected or in which any dispute with respect to the
Relevant Agreements is being adjudicated. To the extent that such mandatory
rules affect any part of the transaction, an English court is likely to
restrict the application of those rules to the relevant part of the
transaction and to treat the laws of the State of New York as applicable to
the remainder; and
(xi) the Notes have been duly authorised, and when completed,
executed by or on behalf of and delivered by Xerox Capital, will (subject to
the Notes being in a proper legal form under the laws of the State of New
York, by which they are expressed to be governed) constitute valid and
enforceable obligations of Xerox Capital under English law.
In rendering such opinion, such counsel may state that their opinion is
limited to matters governed by the laws of England and Wales.
(d) The Company shall have furnished to each Agent the opinion of
the Secretary of Xerox Investments (Nederland) B.V., or its successor (or such
other lawyer qualified under Dutch law as shall be reasonably acceptable to
the Representatives), dated the date of the Effective Time, to the effect that
Xerox Investments (Nederland) B.V. has been duly incorporated and is validly
existing as a corporation in good standing under the law of the jurisdiction
in which it is chartered or organized with full corporate power and authority
to conduct its business as described in its articles of incorporation; and the
outstanding share capital of such corporation has been duly authorized or
validated and issued and is fully paid.
(e) Each Agent shall have received from Cravath, Swaine & Moore,
counsel for the Agents, such opinion or opinions, dated the date hereof, with
respect to the issuance and sale of the Notes, the Indenture, the Registration
Statements, the Prospectus (together with any supplement thereto) and other
related matters as the Agents may reasonably require, and the Issuers and the
Guarantor shall have furnished to such counsel such documents as they request
for the purpose of enabling them to pass upon such matters.
(f) Each Agent also shall have received from Ivins, Phillips &
Barker, Chartered, special tax counsel to the Issuers and the Guarantor, an
opinion, dated the date hereof, confirming as their opinion, the statements
set forth in the Prospectus under the caption "United States Taxation".
(g) Xerox shall have furnished to each Agent a certificate of Xerox
, signed by the Chairman of the Board, the President or a Vice President with
knowledge of the matters set forth in the certificate and the principal
financial or accounting officer of Xerox, dated the Execution Time, to the
effect that the signers of such certificate have carefully examined the
Registration Statement, the Prospectus, any supplement to the Prospectus and
this Agreement and that:
(i) the representations and warranties of the Company and the
Guarantor in this Agreement are true and correct in all material respects on
and as of the date hereof with the same effect as if made on the date hereof
and the Company and the Guarantor have in all material respects complied with
all the agreements and satisfied all the conditions on their part to be
performed or satisfied as a condition to the obligation of the Agents to
solicit offers to purchase the Notes;
(ii) no stop order suspending the effectiveness of the
Registration Statements has been issued and no proceedings for that purpose
have been instituted or, to Xerox' knowledge threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Prospectus (exclusive of any
supplement thereto), there has been no material adverse change in the
condition (financial or other), earnings, business or properties of the
Company and its subsidiaries, or the Guarantor and its subsidiaries, in each
case, taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto).
(h) At the Execution Time, KPMG LLP shall have furnished to each
Agent a letter or letters (which may refer to letters previously delivered to
the Agents) dated as of the Execution Time, in form and substance reasonably
satisfactory to the Agents, confirming that they are independent certified
public accountants with respect to Xerox and its subsidiaries within the
meaning of the Act and the Exchange Act and the respective applicable
published rules and regulations thereunder and stating in effect that:
(i) in their opinion the audited financial statements,
financial statement schedules and pro forma financial statements, if any,
included or incorporated in the Registration Statements and the Prospectus and
reported on by them comply in form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and the
related published rules and regulations;
(ii) on the basis of a reading of the "Selected Financial Data"
included or incorporated in the Registration Statements and the Prospectus, of
the latest unaudited consolidated financial statements made available by Xerox
and its consolidated subsidiaries (provided that all procedures conducted in
connection with reading such latest unaudited financial statements made
available for subsidiaries of Xerox organized in jurisdictions outside the
United States of America shall be conducted at Xerox' corporate headquarters
in Stamford, Connecticut), carrying out certain specified procedures (but not
an audit in accordance with generally accepted auditing standards) which would
not necessarily reveal matters of significance with respect to the comments
set forth in such letter; a reading of the minutes of the meetings of the
stockholders, directors and executive committees of Xerox; and inquiries of
certain officials of Xerox (provided that all such inquiries with respect to
subsidiaries of Xerox organized in jurisdictions outside the United States of
America shall be made at Xerox' corporate headquarters in Stamford,
Connecticut to the extent that such information is available) who have
responsibility for financial and accounting matters of Xerox and its
consolidated subsidiaries as to transactions and events subsequent to the date
of the most recent financial statements included or incorporated in the
Registration Statements and the Prospectus, nothing came to their attention
which caused them to believe that:
(1) the amounts in the "Selected Financial Data" included
or incorporated in the Registration Statements and the Prospectus, do not
agree with the corresponding amounts in the audited financial statements from
which such amounts were derived;
(2) any unaudited financial statements included or
incorporated in the Registration Statements and the Prospectus do not comply
as to form in all material respects with applicable accounting requirements
and with the published rules and regulations of the Commission with respect to
financial statements included or incorporated in quarterly reports on Form 10-
Q under the Exchange Act; and said unaudited financial statements are not
presented (except as permitted by Form 10-Q) in conformity with United States
generally accepted accounting principles applied on a basis substantially
consistent with that of the audited financial statements included or
incorporated in the Registration Statements and the Prospectus;
(3) with respect to the period subsequent to the date of
the most recent financial statements incorporated in the Registration
Statements and the Prospectus, there were any increases, at a specified date
not more than five business days prior to the date of the letter, in the long-
term debt of Xerox and its consolidated subsidiaries (except as otherwise
described in the Prospectus) or decreases in the total shareholders' equity of
Xerox and its consolidated subsidiaries as compared with the amounts shown on
the most recent consolidated balance sheet of Xerox included or incorporated
in the Registration Statements and the Prospectus, or for the period from the
date of the most recent financial statements incorporated in the Registration
Statements and the Prospectus to such specified date there were any decreases,
as compared with the corresponding period in the preceding fiscal year, in
total earned income, or in net income, of Xerox and its consolidated
subsidiaries, except in all instances for changes or decreases set forth in
such letter, in which case the letter shall be accompanied by an explanation
by Xerox as to the significance thereof unless said explanation is not deemed
necessary by the Agents; and
(iii) they have performed certain other specified procedures as
a result of which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting, financial or
statistical information derived from the general accounting records of Xerox)
set forth in the Registration Statements and the Prospectus and in each
Exhibits 12(a) and 12(b) to the Registration Statements, including the
information included or incorporated in Items 1 and 7 of Xerox' Annual Report
on Form 10-K, incorporated in the Registration Statements and the Prospectus,
and the information included in the "Management's Discussion and Analysis of
Financial Condition and Results of Operations" included or incorporated in
Xerox' Quarterly Reports on Form 10-Q, incorporated in the Registration
Statements and the Prospectus, agrees with the accounting records of Xerox,
excluding any questions of legal interpretation; and
(iv) if unaudited pro forma financial statements are included
or incorporated in the Registration Statements and the Prospectus, on the
basis of a reading of the unaudited pro forma financial statements, carrying
out certain specified procedures, inquiries of certain officials of Xerox who
have responsibility for financial and accounting matters, and proving the
arithmetic accuracy of the application of the pro forma adjustments to the
historical amounts in the pro forma financial statements, nothing came to
their attention which caused them to believe that the pro forma financial
statements do not comply in form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the historical amounts in the
compilation of such statements.
References to the Prospectus in this paragraph (h) include any supplement
thereto at the date of the letter.
(i) Prior to the Execution Time, the Company and the Guarantor
shall have furnished to each Agent such further information, documents,
certificates and opinions of counsel as the Agents may reasonably request.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or
if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in
form and substance to such Agents and counsel for the Agents, this Agreement
and all obligations of any Agent hereunder may be canceled at any time by the
Agents. Notice of such cancelation shall be given to the Company and the
Guarantor in writing or by telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 5 shall be
delivered at the office of Cravath, Swaine & Moore, counsel for the Agents, at
825 Eighth Avenue, New York, New York, on the date hereof.
6. CONDITIONS TO THE OBLIGATIONS OF THE PURCHASER. The obligations of
the Purchaser to purchase any Notes will be subject to the accuracy of the
representations and warranties on the part of the Company and the Guarantor
herein as of the date of the agreement by the Purchaser to purchase such Notes
and as of the Closing Date for such Notes, to the performance and observance
by the Company and the Guarantor of all covenants and agreements herein
contained on its part to be performed and observed including the provisions of
Section 5 hereof and to the following additional conditions precedent:
(a) No stop order suspending the effectiveness of the Registration
Statements shall have been issued and no proceedings for that purpose shall
have been instituted or threatened.
(b) To the extent agreed to in writing between the Company, the
Guarantor and the Purchaser in a Terms Agreement, the Purchaser shall have
received, appropriately updated, (i) a certificate of Xerox, dated as of the
Closing Date, to the effect set forth in Section 5(g) (except that references
to the Prospectus shall be to the Prospectus as supplemented as of the date of
such Terms Agreement), (ii) the opinion of the Vice President and General
Counsel or any Associate General Counsel of Xerox, dated as of the Closing
Date, to the effect set forth in Section 5(b), (iii) the opinion ofLovell
White Durrant, dated as of the Closing Date, substantially to the effect set
forth in Section 5(c), (iv) the opinion of Cravath, Swaine & Moore, counsel
for the Purchaser, dated as of the Closing Date, to the effect set forth in
Section 5(e), and (v) letter of KPMG LLP, independent accountants for the
Company and the Guarantor, dated as of the Closing Date, to the effect set
forth in Section 5(h).
(c) Prior to the Closing Date, the Company and the Guarantor shall
have furnished to the Purchaser such further information, certificates and
documents as the Purchaser may reasonably request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement and
an applicable Terms Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement or such Terms Agreement and
required to be delivered to the Purchaser pursuant to the terms hereof and
thereof shall not be in all material respects reasonably satisfactory in form
and substance to the Purchaser and its counsel, such Terms Agreement and all
obligations of the Purchaser thereunder and with respect to the Notes subject
thereto may be canceled at, or at any time prior to, the respective Closing
Date by the Purchaser. Notice of such cancelation shall be given to the
Company in writing or by telephone or telegraph confirmed in writing.
7. RIGHT OF PERSON WHO AGREED TO PURCHASE TO REFUSE TO PURCHASE. Each
of the Company and the Guarantor agrees that any person who has agreed to
purchase and pay for any Note, including a Purchaser and any person who
purchases pursuant to a solicitation by any of the Agents, shall have the
right to refuse to purchase such Note if, at the Closing Date therefor, either
(a) any condition set forth in Section 5 or 6, as applicable, shall not be
satisfied, (b) subsequent to the agreement to purchase such Note, any change,
or any development involving a prospective change, in or affecting the
business or properties of the Company and its subsidiaries, or the Guarantor
and its subsidiaries, in each case, taken as whole, shall have occurred the
effect of which is, in the reasonable judgment of the Purchaser or the Agent
which presented the offer to purchase such Note, as applicable, so material
and adverse as to make it impractical to proceed with the delivery of such
Note on the terms and in the manner contemplated in the Prospectus as amended
or supplemented, or (c) any condition set forth in Section 9(b) shall not be
satisfied (any judgment to be exercised therein by such Agent).
8. INDEMNIFICATION AND CONTRIBUTION. (a) Each of the Company and the
Guarantor agrees to indemnify and hold harmless each of you and each person
who controls each of you within the meaning of either the Act or the Exchange
Act against any and all losses, claims, damages or liabilities, joint or
several, to which you, they or any of you or them may become subject under the
Act, the Exchange Act or other Federal or state statutory law or regulation,
at common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in
the Registration Statements for the registration of the Securities as
originally filed or in any amendment thereof, or in the Prospectus or any
preliminary Prospectus, or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that (i) the Company and the Guarantor
will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue statement
or alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company or the Guarantor by any of you specifically for use in connection with
the preparation thereof, and (ii) such indemnity with respect to the
Prospectus or any preliminary Prospectus shall not inure to the benefit of any
of you (or any person controlling any of you) from whom the person asserting
any such loss, claim, damage or liability purchased the Notes which are the
subject thereof if such person did not receive a copy of the Prospectus (or
the Prospectus as supplemented) excluding documents incorporated therein by
reference at or prior to the confirmation of the sale of such Notes to such
person in any case where such delivery is required by the Act and the untrue
statement or omission of a material fact contained in the Prospectus or any
preliminary Prospectus was corrected in the Prospectus (or the Prospectus as
supplemented). This indemnity agreement will be in addition to any liability
which the Company and the Guarantor may otherwise have.
(b) Each of you agrees to indemnify and hold harmless each of the
Company and the Guarantor, each of their directors, each of their officers who
signs the Registration Statements and each person who controls the Company or
the Guarantor within the meaning of either the Act or the Exchange Act, to the
same extent as the foregoing indemnity from the Company and the Guarantor to
you, but only with reference to written information relating to such of you
furnished to the Company or the Guarantor by such of you specifically for use
in the preparation of the documents referred to in the foregoing indemnity.
This indemnity agreement will be in addition to any liability which you may
otherwise have. Each of the Company and the Guarantor acknowledges that the
statements set forth in the second and third senteces of the second paragraph,
the second sentece of the sixth paragraph and the seventh paragraph, under the
heading "Plan of Distribution", of the Prospectus Supplement constitute the
only information furnished in writing by any of you for inclusion in the
documents referred to in the foregoing indemnity, and you confirm that such
statements are correct. If there is more than one
Agent hereunder, each of the Company and the Guarantor acknowledges that such
Agent's agreement under this paragraph (b) of this Section 8 is several and
not joint.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under paragraph (a) or (b) of this Section 8, notify the indemnifying
party in writing of the commencement thereof; but the omission so to notify
the indemnifying party will not relieve it from any liability which it may
have to any indemnified party otherwise than under paragraph (a) or (b) of
this Section 8. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to
assume the defense thereof, with counsel satisfactory to such indemnified
party; provided, however, that if the defendants in any such action include
both the indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next
preceding sentence (it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one separate counsel,
approved by you in the case of paragraph (a) of this Section 8, representing
the indemnified parties under such paragraph (a) who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or (iii)
the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and except that,
if clause (i) or (iii) is applicable, such liability shall be only in respect
of the counsel referred to in such clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) or
(b) of this Section 8 is due in accordance with its terms but is for any
reason held by a court to be unavailable from the Company or the Guarantor on
grounds of policy or otherwise, the Company and each of you shall contribute
to the aggregate losses, claims, damages and liabilities (including legal or
other expenses reasonably incurred in connection with investigating or
defending same) to which the Company and the Guarantor, on the one hand, and
any of you, on the other, may be subject in such proportion so that each of
you is responsible for that portion represented by the percentage that the
aggregate commissions received by such of you pursuant to Section 2 in
connection with the Notes from which such losses, claims, damages and
liabilities arise (or, in the case of Notes sold pursuant to a Terms
Agreement, the aggregate commissions that would have been received by such of
you if such commissions had been payable), bears to the aggregate principal
amount of such Notes sold and the Company or the Guarantor is responsible for
the balance; provided, however, that (y) in no case shall any of you be
responsible for any amount in excess of the commissions received by such of
you in connection with the Notes from which such losses, claims, damages and
liabilities arise (or, in the case of Notes sold pursuant to a Terms
Agreement, the aggregate commissions that would have been received by such of
you if such commissions had been payable) and (z) no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls any of you within the meaning of the Act shall have the same rights
to contribution as you and each person who controls the Company or the
Guarantor within the meaning of either the Act or the Exchange Act, each
officer of each of the Company and the Guarantor who shall have signed the
Registration Statements and each director of each of the Company and the
Guarantor shall have the same rights to contribution as the Company and the
Guarantor, subject in each case to clauses (y) and (z) of this paragraph (d).
Any party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect
of which a claim for contribution may be made against another party or parties
under this paragraph (d) notify such party or parties from whom contribution
may be sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any
other obligation it or they may have hereunder or otherwise than under this
paragraph (d).
9. TERMINATION. (a) This Agreement will continue in effect until
terminated as provided in this Section 9. This Agreement may be terminated by
any of the Issuers (but only as to itself) as to any of you or any of you
insofar as this Agreement relates to such of you, by giving written notice of
such termination to such of you or the Issuers and the Guarantor, as the case
may be. This Agreement shall so terminate at the close of business on the
first business day following the receipt of such notice by the party to whom
such notice is given. In the event of such termination, no party shall have
any liability to the other party hereto, except as provided in the fourth
paragraph of Section 2(a), Section 4(d), Section 4(h), Section 8 and Section
10. The provisions of this Agreement (including without limitation Section 7
hereof) applicable to any purchase of a Note for which an agreement to
purchase exists prior to the termination hereof shall survive any termination
of this Agreement but in any event shall terminate on the Closing Date for
purchase of such Note (except as set forth in Section 10 hereof). If, at the
time of termination of this Agreement, any Purchaser shall own any Notes with
the intention of selling them, the provisions of Section 4 shall remain in
effect until the earlier of (i) the date such Notes are sold by the Purchaser
and (ii) the date nine months from the date of termination of this Agreement.
(b) Each Terms Agreement (oral or written) shall be subject to
termination in the absolute discretion of the Purchaser, by notice given to
the applicable Company and the Guarantor prior to delivery of any payment for
Notes to be purchased thereunder, if prior to such time (i) trading in
securities generally on the New York Stock Exchange shall have been suspended
or limited or minimum prices shall have been established on such Exchange,
(ii) a banking moratorium shall have been declared either by Federal or New
York State authorities or (iii) there shall have occurred any outbreak or
material escalation of hostilities or other calamity or crisis the effect of
which on the financial markets of the United States is such as to make it, in
the reasonable judgment of the Purchaser, impracticable to market such Notes
on the terms and in the manner contemplated in the Prospectus as amended or
supplemented.
10. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of
the Issuers, the Guarantor or their respective officers or directors and of
you set forth in or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation made by or on behalf of you or the
Issuers, the Guarantor or any of their respective officers, directors or
controlling persons referred to in Section 8 hereof, and will survive delivery
of and payment for the Notes. The provisions of Sections 4(d), 4(h) and 8
hereof shall survive the termination or cancelation of this Agreement.
11. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to any of you, will be mailed,
delivered, telecopied or telegraphed and confirmed to such of you, at the
address specified in Schedule I hereto; or, if sent to Xerox or the Guarantor,
will be mailed, delivered, telecopied or telegraphed and confirmed to it at
P.O. Box 1600, 800 Long Ridge Road, Stamford, Connecticut 06904-1600,
Attention: Manager, Cash Planning and Funding; or, if sent to Xerox Capital,
will be mailed, delivered, telecopied or telegraphed and confirmed to it at
Parkway, Marlow, Buckinghamshire SL7 1YL, England, Attention: Corporate
Secretary, with a copy to the Guarantor as herein provided.
12. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8
hereof, and no other person will have any right or obligation hereunder except
as provided in Section 7 hereof.
13. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York, without giving effect to
the principles thereof relating to conflicts of law (other than Section 5-1401
of the General Obligations Law of the State of New York, and any successor
statute or statutes).
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and you.
Very truly yours,
XEROX CORPORATION,
as an Issuer and the Guarantor
By: ___________________________
Title: Assistant Treasurer
XEROX CAPITAL (EUROPE) PLC,
as an Issuer
By: ___________________________ By: ________________________
Title: Director Title: Director
The foregoing Agreement is hereby confirmed and accepted as of the date
hereof.
CHASE SECURITIES INC. J.P. MORGAN SECURITIES INC.
By: _____________________________ By: ______________________________
Title: Title
MORGAN STANLEY & CO. INCORPORATED
_________________________________
(Goldman, Sachs & Co.) By: ______________________________
Title
LEHMAN BROTHERS INC. SALOMON SMITH BARNEY INC.
By: _____________________________ By: ______________________________
Title: Title
MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED
By: _____________________________
Title:
SCHEDULE I
COMMISSIONS:
The Company agrees to pay each Agent, unless otherwise agreed by the Company
and such Agent, a commission equal to the following percentage of the
principal amount of each Note of the Company sold by such Agent:
Terms Commission Rate
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 .700%
From 20 years to and including 30 years .750%
Over 30 years To be negotiated at the
time of sale
Address for Notice to you:
Notices to Chase Securities Inc. shall be directed to it at 270 Park Avenue,
New York, New York 10017, Attention Medium-Term Note Desk, Telephone (212)
834-4421, Fax (212) 834-6081.
Notices to Goldman, Sachs & Co. shall be directed to it at 85 Broad Street,
New York, New York 10004, Attention of Credit Department.
Notices to Lehman Brothers Inc. shall be directed to them at 3 World Financial
Center, 12th Floor, New York, New York 10285, Attention of Mr. John Plaster,
Telephone (212) 298-2040, Fax (212) 528-1718.
Notices to Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated shall be directed to it at World Financial Center, North Tower,
10th Floor, New York, New York 10281, Attention of MTN Product Management,
Telephone (212) 449-7476, Fax (212) 449-2234.
Notices to J.P. Morgan Securities Inc. shall be directed to it at 60 Wall
Street, Third Floor, New York, New York 10260, Attention of MTN Trading Desk,
Fax (212) 648-5909.
Notices to Morgan Stanley & Co. Incorporated shall be directed to it at 1585
Broadway, 2nd Floor, New York, New York 10036, Attention of Manager -
Continuously Offered Products, Telephone (212) 761-4000, Fax (212) 761-0785,
with a copy to 1585 Broadway, 34th Floor, New York, New York 10036, Attention
of Peter Cooper - Investment Banking Information Center, Telephone (212) 761-
8385, Fax (212) 761-0260.
Notices to Salomon Smith Barney Inc. shall be directed to it at Seven World
Trade Center, New York, New York 10048, Attention of the Medium-Term Note
Department.
SCHEDULE II
UNITED KINGDOM SELLING RESTRICTIONS
In connection with any offering of Notes each Agent represents and agrees that
(1) it has not offered or sold and, prior to the period of six months from the
date of closing of each particular issue of Notes, in respect of such Notes it
will not offer or sell any Notes to persons in the United Kingdom except to
persons whose ordinary activities involve them in acquiring, holding, managing
or disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the meaning of
the Public Offers of Securities Regulations 1995, (2) it has complied and will
comply with all applicable provisions of the Financial Services Act 1986 with
respect to anything done by it in relation to the Notes in, from or otherwise
involving the United Kingdom, and (3) it has only issued or passed on, and
will only issue or pass on, in the United Kingdom any document received by it
in connection with the issue of the Notes to a person who is a kind described
in Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1996 or is a person to whom the document
may otherwise lawfully be issued or passed on.
EXHIBIT A
XEROX CORPORATION
XEROX CAPITAL (EUROPE) PLC
Medium-Term Note Administrative Procedures
(March 25, 1999)
The Medium-Term Notes, Series F, Due Nine Months or More from Date of Issue
(the "Notes") of Xerox Corporation ("Xerox") and Xerox Capital (Europe) plc
(formerly Rank Xerox Capital (Europe) plc) ("Xerox Capital", and together with
Xerox, the "Issuers" and each an "Issuer"), are to be offered on a continuing
basis. Chase Securities Inc., Goldman, Sachs & Co., Lehman Brothers Inc.,
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P.
Morgan Securities Inc., Morgan Stanley & Co. Incorporated and Salomon Smith
Barney Inc., as agents (each an "Agent"), have agreed to solicit purchases of
Notes issued in fully registered form. No Agent will be obligated to purchase
Notes for its own account, unless otherwise agreed. The Notes are being sold
pursuant to a Selling Agency Agreement between the Issuers and the Agents
dated the date hereof (the "Agency Agreement"). All Notes of Xerox Capital
will be fully and unconditionally guaranteed (the "Guaranties") as to payment
of principal and any premium or interest by Xerox, and all references herein
to the "Guarantor" shall only refer to Xerox acting in such capacity and only
be applicable with respect to Notes of Xerox Capital (or particular series
thereof which are sold pursuant to the terms of the Agency Agreement). For
the purposes hereof and of the Agency Agreement, the term "Company" shall
refer to the relevant Issuer offering the Notes. The Notes of Xerox and the
Guaranties will rank equally with all other unsecured and unsubordinated debt
of Xerox, and the Notes of Xerox Capital will rank equally with all other
unsecured and unsubordinated debt of Xerox Capital. The Notes and the
Guaranties have been registered with the Securities and Exchange Commission
(the "Commission"), and will be issued under the Indenture dated as of October
21, 1997 (as may be amended or supplemented from time to time, the
"Indenture"), among the Issuers, the Guarantor and Citibank, N.A., as trustee
(the "Trustee").
The Agency Agreement provides that Notes may also be purchased by an Agent
acting solely as principal and not as agent. In the event of any such
purchase, the functions of both the Agent and the beneficial owner under the
administrative procedures set forth below shall be performed by such Agent
acting solely as principal, unless otherwise agreed to among the Company, the
Guarantor and such Agent acting as principal in the relevant Terms Agreement
(as defined in the Agency Agreement).
Each Note will be represented by either a Global Security (as defined
hereinafter) delivered to Citibank, N.A. ("Citibank"), as agent for The
Depository Trust Company ("DTC"), and recorded in the book-entry system
maintained by DTC (a "Book-Entry Note") or a certificate delivered to the
Holder thereof or a person designated by such Holder (a "Certificated Note").
Only Notes denominated and payable in U.S. dollars may be issued as Book-Entry
Notes. An owner of a Book-Entry Note will not be entitled to receive a
certificate representing such Note.
The procedures to be followed during, and the specific terms of, the
solicitation of orders of Notes of the Company, and any Guaranties thereof, by
the Agents and the sale as a result thereof by the Company are explained
below. Administrative and record-keeping responsibilities will be handled for
the Company by the Treasury Department of the Company or the Guarantor. Each
Issuer and the Guarantor will advise the Agents and the Trustee in writing of
those persons handling administrative responsibilities with whom the Agents
and the Trustee are to communicate regarding orders to purchase Notes of such
Issuer and any Guaranties thereof and the details of their delivery.
Administrative procedures and specific terms of the offering are explained
below. Book-Entry Notes will be issued in accordance with the administrative
procedures set forth in Part I hereof, as adjusted in accordance with changes
in DTC's operating requirements, and Certificated Notes will be issued in
accordance with the administrative procedures set forth in Part II hereof.
Unless otherwise defined herein, terms defined in the Indenture and the Notes
shall be used herein as therein defined. Notes for which interest is
calculated on the basis of a fixed interest rate, which may be zero, are
referred to herein as "Fixed Rate Notes". Notes for which interest is
calculated on the basis of a floating interest rate are referred to herein as
"Floating Rate Notes". To the extent the procedures set forth below conflict
with the provisions of the Notes, the Indenture, DTC's operating requirements
or the Agency Agreement, the relevant provisions of the Notes, the Indenture,
DTC's operating requirements and the Agency Agreement shall control.
PART I
ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for eligibility
in the book-entry system maintained by DTC, Citibank will perform the
custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representations
from the Company and the Trustee to DTC dated on or about the date hereof and
a Medium-Term Note Certificate Agreement between Citibank and DTC and its
obligations as a participant in DTC, including DTC's Same Day Funds Settlement
system ("SDFS"). Only Notes denominated and payable in U.S. dollars may be
Book-Entry Notes.
Issuance:
- ---------
On any date of settlement (as defined under "Settlement" below) for one or
more Book-Entry Notes, the Company will issue a single global security in
fully registered form without coupons (a "Global Security") representing up to
$200,000,000 principal amount (or such other maximum amount as may from time
to time be agreed to by DTC) of all such Book-Entry Notes that have the same
Original Issue Date, original issue discount provisions, if any, Interest
Payment Dates, Interest Payment Period, redemption provisions, if any,
Maturity Date, and, in the case of Fixed Rate Notes, interest rate, or, in the
case of Floating Rate Notes, initial interest rate, Base Rate, Index Maturity,
Interest Reset Period, Interest Reset Dates, Spread or Spread Multiplier, if
any, minimum interest rate, if any, and maximum interest rate, if any
(collectively, the "Terms"). Each Global Security will be dated and issued as
of the date of its authentication by the Trustee. Each Global Security will
bear an Original Issue Date, which will be (i) with respect to an original
Global Security (or any portion thereof), the Original Issue Date Specified on
such Global Security and (ii) following a consolidation of Global Securities,
with respect to the Global Security resulting from such consolidation, the
most recent Interest Payment Date to which interest has been paid or duly
provided for on the predecessor Global Securities, regardless of the date of
authentication of such subsequently issued Global Security. Unless otherwise
specified in a Pricing Supplement, Global Securities will be denominated and
payable only in U.S. dollars. No Global Security will represent (i) both
Fixed Rate and Floating Rate Book-Entry Notes or (ii) any Certificated Note.
Identification:
- ---------------
The Issuers have arranged with the CUSIP Service Bureau of Standard & Poor's
Corporation (the "CUSIP Service Bureau") for the reservation of a series of
CUSIP numbers, which series consists of approximately 900 CUSIP numbers in the
aggregate and relates to Global Securities representing Book-Entry Notes and
book-entry medium-term notes issued by the Issuers with other series
designations. The Trustee, the Issuers and DTC have obtained from the CUSIP
Service Bureau a written list of such reserved CUSIP numbers. The Trustee
will assign CUSIP numbers to Global Securities as described below under
Settlement Procedure "B". DTC will notify the CUSIP Service Bureau
periodically of the CUSIP numbers that have been assigned to Global
Securities. The Trustee will notify Xerox at any time when fewer than 100 of
the reserved CUSIP numbers remain unassigned to Global Securities, and, if it
deems necessary, Xerox will reserve on behalf of itself and the other Issuers
additional CUSIP numbers for assignment to Global Securities. Upon obtaining
such additional CUSIP numbers, Xerox shall deliver a list of such additional
CUSIP numbers to Xerox Capital, the Trustee and DTC.
Registration:
- -------------
Global Securities will be issued only in fully registered form without
coupons. Each Global Security will be registered in the name of CEDE & Co.,
as nominee for DTC, on the Security Register for the Notes maintained under
the Indenture. The beneficial owner of a Book-Entry Note (or one or more
indirect participants in DTC designated by such owner) will designate one or
more participants in DTC (with respect to such Book-Entry Note, the
"Participants") to act as agent or agents for such owner in connection with
the book-entry system maintained by DTC, and DTC will record in book-entry
form, in accordance with instructions provided by such Participants, a credit
balance with respect to such beneficial owner in such Book-Entry Note in the
account of such Participants. The ownership interest of such beneficial owner
(or such participant) in such Book-Entry Note will be recorded through the
records of such Participants or through the separate records of such
Participants and one or more indirect participants in DTC.
Transfers:
- ----------
Transfers of a Book-Entry Note will be accomplished by book entries made by
DTC and, in turn, by Participants (and in certain cases, one or more indirect
participants in DTC) acting on behalf of beneficial transferors and
transferees of such Note.
Exchanges:
- ----------
The Trustee may deliver to DTC and the CUSIP Service Bureau at any time a
written notice of consolidation (a copy of which shall be attached to the
Global Security resulting from such consolidation) specifying (i) the CUSIP
numbers of two or more Outstanding Global Securities that represent (A) Fixed
Rate Book-Entry Notes having the same Terms and for which interest has been
paid to the same date or (B) Floating Rate Book-Entry Notes having the same
Terms and for which interest has been paid to the same date, (ii) a date,
occurring at least thirty days after such written notice is delivered and at
least thirty days before the next Interest Payment Date for such Book-Entry
Notes, on which such Global Securities shall be exchanged for a single
replacement Global Security and (iii) a new CUSIP number, obtained from the
Company or the Guarantor, to be assigned to such replacement Global Security;
provided, however, that consolidation of Global Securities of different
Issuers shall not be effected. Upon receipt of such a notice, DTC will send
to its participants (including the Trustee) a written reorganization notice to
the effect that such exchange will occur on such date. Prior to the specified
exchange date, the Trustee will deliver to the CUSIP Service Bureau a written
notice setting forth such exchange date and such new CUSIP number and stating
that, as of such exchange date, the CUSIP numbers of the Global Securities to
be exchanged will no longer be valid. On the specified exchange date, the
Trustee will exchange such Global Securities for a single Global Security
bearing the new CUSIP number and the CUSIP numbers of the exchanged Global
Securities will, in accordance with CUSIP Service Bureau procedures, be
canceled and not immediately reassigned. Notwithstanding the foregoing, if
the Global Securities to be exchanged exceed $200,000,000 in aggregate
principal amount (or such other maximum amount as may from time to time be
agreed to by DTC), one Global Security will be authenticated and issued to
represent each $200,000,000 of principal amount (or such other maximum amount)
of the exchanged Global Securities and an additional Global Security will be
authenticated and issued to represent any remaining principal amount of such
Global Securities (see "Denominations" below).
Maturities:
- -----------
Each Book-Entry Note will mature nine months or more from the date of its
issue.
Denominations:
- --------------
Book-Entry Notes will be issued in minimum denominations of U.S.$1,000 or any
amount in excess thereof that is an integral multiple of $1,000. Global
Securities will be denominated in principal amounts not in excess of
$200,000,000 (or such other maximum amount as may from time to time be agreed
to by DTC). If one or more Book-Entry Notes having an aggregate principal
amount in excess of $200,000,000 (or such other maximum amount) would, but for
the preceding sentence, be represented by a single Global Security, then one
Global Security will be authenticated and issued to represent each
$200,000,000 principal amount (or such other maximum amount) of such Book-
Entry Note or Notes and an additional Global Security will be authenticated
and issued to represent any remaining principal amount of such Book-Entry Note
or Notes. In such a case, each of the Global Securities representing such
Book-Entry Note or Notes shall be assigned the same CUSIP number.
Interest:
- ---------
GENERAL. Unless otherwise specified in the applicable Pricing Supplement,
interest, if any, on each Book-Entry Note will accrue from the original issue
date for the first interest period or the last date to which interest has been
paid, if any, for each subsequent interest period, on the Global Security
representing such Book-Entry Note and will be calculated and paid in the
manner described in such Book-Entry Note and in the Prospectus (as defined in
the Agency Agreement), as supplemented by the applicable Pricing Supplement.
Unless otherwise specified in the applicable Pricing Supplement, each payment
of interest on a Book-Entry Note will include interest accrued to but
excluding the Interest Payment Date or to but excluding Maturity (other than a
Maturity of a Fixed Rate Book-Entry Note occurring on the 31st day of a month,
in which case such payment of interest will include interest accrued to but
excluding the 30th day of such month). Interest payable at the Maturity of a
Book-Entry Note will be payable to the Person to whom the principal of such
Note is payable. Standard & Poor's Corporation will use the information
received in the pending deposit message described under Settlement Procedure
"C" below in order to include the amount of any interest payable and certain
other information regarding the related Global Security in the appropriate
(daily or weekly) bond report published by Standard & Poor's Corporation.
REGULAR RECORD DATES. Unless otherwise specified in the applicable Pricing
Supplement, the Regular Record Date with respect to any Interest Payment Date
shall be the date fifteen calendar days immediately preceding such Interest
Payment Date.
INTEREST PAYMENT DATES ON FIXED RATE BOOK-ENTRY NOTES. Unless otherwise
specified pursuant to Settlement Procedure "A" below or in the applicable
Pricing Supplement, interest payments on Fixed Rate Book-Entry Notes will be
made semiannually on April 15 and October 15 of each year and at Maturity;
provided, however, that in the case of a Fixed Rate Book-Entry Note issued
between a Regular Record Date and an Interest Payment Date, the first interest
payment will be made on the Interest Payment Date following the next
succeeding Regular Record Date.
INTEREST PAYMENT DATES ON FLOATING RATE BOOK-ENTRY NOTES. Unless otherwise
specified in the applicable Pricing Supplement, interest payments will be made
on Floating Rate Book-Entry Notes monthly, quarterly, semi-annually or
annually. Unless otherwise agreed upon, interest will be payable, in the case
of Floating Rate Book-Entry Notes with a monthly Interest Payment Period, on
the third Wednesday of each month; with a quarterly Interest Payment Period,
on the third Wednesday of March, June, September and December of each year;
with a semi-annual Interest Payment Period on the third Wednesday of the two
months specified pursuant to Settlement Procedure "A" below; and with an
annual Interest Payment Period, on the third Wednesday of the month specified
pursuant to Settlement Procedure "A" below; provided, however, that if an
Interest Payment Date for a Floating Rate Book-Entry Note would otherwise by a
day that is not a Business Day with respect to such Floating Rate Book-Entry
Note, such Interest Payment Date will be the next succeeding Business Day with
respect to such Floating Rate Book-Entry Note, except in the case of a
Floating Rate Book-Entry Note for which the Base Rate is LIBOR, if such
Business Day is in the next succeeding calendar month, such Interest Payment
Date will be the immediately preceding Business Day; and provided further,
that in the case of a Floating Rate Book-Entry Note issued between a Regular
Record Date and an Interest Payment Date, the first interest payment will be
made on the Interest Payment Date following the next succeeding Regular Record
Date.
NOTICE OF INTEREST PAYMENT AND REGULAR RECORD DATES. On the first Business Day
of January, April, July and October of each year, the Trustee will deliver to
the relevant Issuers, the Guarantor and DTC a written list of Regular Record
Dates and Interest Payment Dates that will occur with respect to Book-Entry
Notes during the six-month period beginning on such first Business Day.
Promptly after each Interest Determination Date for Floating Rate Book-Entry
Notes, the Calculation Agent (initially, Citibank) will notify Standard &
Poor's Corporation of the interest rates determined on such Interest
Determination Date.
Calculation of Interest:
- ------------------------
FIXED RATE BOOK-ENTRY NOTES. Interest on Fixed Rate Book-Entry Notes
(including interest for partial periods) will be, unless otherwise specified
in the applicable Pricing Supplement, calculated on the basis of a 360-day
year of twelve 30-day months.
FLOATING RATE BOOK-ENTRY NOTES. Interest rates on Floating Rate Book Entry
Notes will be determined as set forth in the form of Notes. Interest on
Floating Rate Book-Entry Notes, except as otherwise set forth therein and
unless otherwise specified in the applicable Pricing Supplement, will be
calculated on the basis of actual days elapsed and a year of 360 days, except
that in the case of a Floating Rate Book-Entry Note for which the Base Rate is
Treasury Rate or CMT Rate, interest will be calculated on the basis of the
actual number of days in the year.
Payments of Principal and Interest:
- -----------------------------------
PAYMENT OF INTEREST ONLY. Promptly after each Regular Record Date, the
Trustee will deliver to the relevant Issuers, the Guarantor and DTC a written
notice setting forth, by CUSIP number, the amount of interest to be paid on
each Global Security on the following Interest Payment Date (other than an
Interest Payment Date coinciding with Maturity) and the total of such amounts.
DTC will confirm the amount payable on each Global Security on such Interest
Payment Date by reference to the appropriate (daily or weekly) bond report
published by Standard & Poor's Corporation. The Company will pay to the
Paying Agent (initially, Citibank), the total amount of interest due on such
Interest Payment Date (other than at Maturity), and the Paying Agent will pay
such amount to DTC, at the times and in the manner set forth below under
"Manner of Payment". If any Interest Payment Date for a Book-Entry Note is
not a Business Day, the payment due on such day shall be made, unless
otherwise specified in the applicable Pricing Supplement, on the next
succeeding Business Day, except that in the case of a LIBOR Note, if such
Business Day is in the next succeeding calendar month, such Interest Payment
Date shall be the next preceding Business Day and no interest shall accrue on
such payment for the period from and after such Interest Payment Date.
PAYMENTS AT MATURITY. On or about the first Business Day of each month, the
Trustee will deliver to the relevant Issuers, the Guarantor and DTC a written
list of principal and interest to be paid on each Global Security maturing (on
a Maturity or Redemption Date or otherwise) in the following month. Each of
the relevant Issuers, the Guarantor and DTC will confirm the amounts of such
principal and interest payments with respect to each such Global Security on
or about the fifth Business Day preceding the Maturity of such Global
Security. On or before Maturity, the Company will pay to the Paying Agent the
principal amount of such Global Security, together with interest due at such
Maturity. The Paying Agent will pay such amount to DTC at the times and in
the manner set forth below under "Manner of Payment". Promptly after payment
to DTC of the principal and interest due at Maturity of such Global Security,
the Trustee will cancel such Global Security in accordance with the Indenture
and so advise the relevant Issuer and the Guarantor.
MANNER OF PAYMENT. The total amount of any principal and interest due on
Global Securities on any Interest Payment Date or at Maturity shall be paid by
the Company to the Paying Agent in immediately available funds no later than
9:30 a.m. (New York City time) on such date. The Company will make such
payment on such Global Securities by instructing the Paying Agent to withdraw
funds from an account maintained by the Company at Citibank or by wire
transfer to the Paying Agent. The Company will confirm any such instructions
in writing to the Paying Agent. Prior to 10 a.m. (New York City time) on the
date of Maturity or as soon as possible thereafter, the Paying Agent will pay
by separate wire transfer (using Fedwire message entry instructions in a form
previously specified by DTC) to an account at the Federal Reserve Bank of New
York previously specified by DTC, in immediately available funds each payment
of principal (together with interest thereon) due on a Global Security on such
date. On each Interest Payment Date (other than at Maturity), interest
payments shall be made to DTC, in funds available for immediate use by DTC, in
accordance with existing arrangements between Citibank and DTC. On each such
date, DTC will pay, in accordance with its SDFS operating procedures then in
effect, such amounts in funds available for immediate use to the respective
Participants in whose names the Book-Entry Notes represented by such Global
Securities are recorded in the book-entry system maintained by DTC. None of
the Company (as issuer or as paying agent), the Guarantor, the Trustee or the
Paying Agent shall have any responsibility or liability for the payment by DTC
to such Participants of the principal of and interest on the Book-Entry Notes.
WITHHOLDING TAXES. The amount of any taxes required under applicable law to be
withheld from any interest payment on a Book-Entry Note will be determined and
withheld by the Participant, indirect participant in DTC or other Person
responsible for forwarding payments and materials directly to the beneficial
owner of such Note.
Procedure for Rate Setting and Posting:
- ---------------------------------------
The Company and the Agents will discuss from time to time the aggregate
principal amount of, the issuance price of, and the interest rates to be borne
by, Book-Entry Notes that may be sold as a result of the solicitation of
orders by the Agents. If the Company decides to set prices of, and rates
borne by, any Book-Entry Notes in respect of which the Agents are to solicit
orders (the setting of such prices and rates to be referred to herein as
"posting") or if the Company decides to change prices or rates previously
posted by it, it will promptly advise the Agents of the prices and rates to be
posted.
Acceptance and Rejection of Orders:
- -----------------------------------
Unless otherwise instructed by the Company or the Guarantor, each Agent will
advise the Company and the Guarantor promptly by telephone of all orders to
purchase Book-Entry Notes received by such Agent, other than those rejected by
it in whole or in part in the reasonable exercise of its discretion. Unless
otherwise agreed by the Company, the Guarantor and the Agents, the Company has
the right to accept orders to purchase Book-Entry Notes and may reject any
such orders in whole or in part.
Preparation of Pricing Supplement:
- ----------------------------------
If any order to purchase a Book-Entry Note is accepted by or on behalf of the
Company, the Company will prepare or cause to be prepared a pricing supplement
(a "Pricing Supplement") reflecting the terms of such Book-Entry Note and will
arrange to transmit the same for filing with the Commission in accordance with
the applicable paragraph of Rule 424(b) under the Act and will supply or cause
to be supplied a copy thereof (and additional copies if requested) to the
Agent that solicited the order. Such Agent will cause a Prospectus and
Pricing Supplement to be delivered to the purchaser of such Book-Entry Note.
In each instance that a Pricing Supplement is prepared, such Agent will affix
the Pricing Supplement to Prospectuses prior to their use. Outdated Pricing
Supplements (other than those retained for files), will be destroyed.
Suspension of Solicitation; Amendment or Supplement:
- ----------------------------------------------------
Subject to the representations, warranties and covenants of the Company and
the Guarantor contained in the Agency Agreement, the Company or the Guarantor
may instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of orders to purchase Book-Entry Notes of the
Company. Upon receipt of such instructions, the Agents will forthwith suspend
solicitation until such time as the Company or the Guarantor has advised them
that such solicitation may be resumed.
In the event that at the time the Company or the Guarantor suspends
solicitation of purchases there shall be any orders outstanding for
settlement, the Company or the Guarantor will promptly advise the Agents and
the Trustee whether such orders may be settled and whether copies of the
Prospectus as in effect at the time of the suspension, together with the
appropriate Pricing Supplement, may be delivered in connection with the
settlement of such orders. The Company and the Guarantor will have the sole
responsibility for such decision and for any arrangements that may be made in
the event that the Company or the Guarantor determines that such orders may
not be settled or that copies of such Prospectus may not be so delivered
If any Issuer or the Guarantor decides to amend or supplement the
Registration Statement (as defined in the Agency Agreement) or the Prospectus,
it will promptly advise the Agents and furnish the Agents with the proposed
amendment or supplement and with such certificates and opinions as are
required, all to the extent required by and in accordance with the terms of
the Agency Agreement. Subject to the provisions of the Agency Agreement, any
Issuer and the Guarantor may file with the Commission any such supplement to
the Prospectus relating to the Notes. Such Issuer and the Guarantor will
provide the Agents and the Trustee with copies of any such supplement, and
confirm to the agents that such supplement has been filed with the Commission
pursuant to the applicable paragraph of Rule 424(b), to the extent required by
and in accordance with the terms of the Agency Agreement.
Procedures For Rate Changes:
- ----------------------------
When the Company has determined to change the interest rates of Book-Entry
Notes being offered, it will, or the Guarantor on behalf of the Company will,
promptly advise the Agents, and the Agents will forthwith suspend solicitation
of orders. The Agents will telephone the Company and the Guarantor with
recommendations as to the changed interest rates. At such time as the
Company, or the Guarantor of behalf of the Company, has advised the Agents of
the new interest rates, the Agents may resume solicitation of orders. Until
such time only "indications of interest" may be recorded. Within two Business
Days after any sale of Book-Entry Notes, the Company will file with the
Securities and Exchange Commission a Pricing Supplement to the Prospectus
relating to such Book-Entry Notes that reflects the applicable interest rates
and other terms and will deliver a copy of such Pricing Supplement to the
Agent that solicited the order.
Delivery of Prospectus:
- -----------------------
A copy of the Prospectus and a Pricing Supplement relating to a Book-Entry
Note must accompany or precede the earliest of any written offer of such Book-
Entry Note, confirmation of the purchase of such Book-Entry Note and payment
for such Book-Entry Note by its purchaser. If notice of a change in the terms
of the Book-Entry Notes is received by any Agent between the time an order for
a Book-Entry Notes is placed and the time written confirmation thereof is sent
by such Agent to a customer or his agent, such confirmation shall be
accompanied by a Prospectus and Pricing Supplement setting forth the terms in
effect when the order was placed. Subject to "Suspension of Solicitation;
Amendment or Supplement" above, each Agent will deliver a Prospectus and
Pricing Supplement as herein described with respect to each Book-Entry Note
sold by it. The Company will make such delivery if such Book-Entry Note is
sold directly by the Company to a purchaser (other than an Agent).
Confirmation:
- -------------
For each order to purchase a Book-Entry Note solicited by any Agent and
accepted by or on behalf of the Company, such Agent will issue a confirmation
to the purchaser, with a copy to the Company and the Guarantor, setting forth
the details set forth above and delivery and payment instructions.
Settlement:
- -----------
The receipt by the Company of immediately available funds in payment for a
Book-Entry Note and the authentication by the Trustee and issuance by the
Company of the Global Security representing such Book-Entry Note shall
constitute "settlement" with respect to such Book-entry Note. All orders
accepted by or on behalf of the Company will be settled on the third Business
Day following the date of sale of such Book-Entry Note pursuant to the
timetable for settlement set forth below, unless at the time of sale the
Company and the purchaser expressly agree to settlement on another day which
shall be no earlier than the next Business Day following the date of sale.
Settlement Procedures:
- ----------------------
Settlement Procedures with regard to each Book-Entry Note sold by the Company
through any Agent, as agent, shall be as follows:
A. Such Agent will advise the Company and the Guarantor by telephone
of the following settlement information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate Book-Entry Note, the interest
rate or, in the case of a Floating Rate Book-Entry Note, the Base Rate,
Initial Interest Rate (if known at such time), Index Maturity, Interest Reset
Period, Interest Reset Dates, Spread or Spread Multiplier (if any), minimum
interest rate (if any) and maximum interest rate (if any).
4. Interest Payment Dates.
5. Redemption provisions, if any, and/or early repayment
provisions, if any.
6. Settlement date.
7. Issue price and net proceeds to the Company.
8. Such Agent's commission, determined as provided in Section
2 of the Agency Agreement.
9. Whether such Book-Entry Note is issued at an original issue
discount and, if so, the total amount of OID, the yield to maturity and the
initial accrual period OID.
B. The Company will advise the Trustee via the Citi Treasury
Management System ("CTMS") or by telex or facsimile transmission of the
information set forth in Settlement Procedure "A" above. The Trustee will
assign a CUSIP number to the Global Security representing such Book-Entry
Notes and notify the Company and the Guarantor by telex or facsimile
transmission of such number. The Company will then notify such Agent by
telephone of such CUSIP number as soon as practicable, but in any event prior
to the settlement date in respect of such Global Security. Each such
communication by the Company to the Trustee shall constitute a representation
and warranty by the Company and the Guarantor to the Trustee and the Agents
that (i) such Book-Entry Note and any Guaranties relating thereto are then,
and at the time of issuance and sale thereof will be, duly authorized for
issuance and sale by the Company and the Guarantor, respectively, (ii) such
Book-Entry Note, and the Global Security representing such Book-Entry Note,
and any Guaranties relating thereto will conform with the terms of the
Indenture and (iii) upon authentication and delivery of such Global Security,
the aggregate principal amount of all Notes issued under the Indenture will
not exceed U.S. $4,485,700,000, or, the equivalent thereof in foreign
denominated currencies or units consisting of multiple currencies (except for
Notes authenticated and delivered upon registration or transfer of, or in
exchange for, or in lieu of, other Notes pursuant to Article Three or Section
4.07 or 9.06 of the Indenture).
C. The Trustee will enter a pending deposit message through DTC's
Participant Terminal System providing the following settlement information to
DTC (which shall route such information to Standard and Poor's Corporation)
and such Agent:
1. The information set forth in Settlement Procedure "A".
2. Identification as a Fixed Rate Book-Entry Note or a
Floating Rate Book-Entry Note.
3. Initial Interest Payment Date for such Book-Entry Note,
number of days by which such date succeeds the related Regular Record Date and
amount of interest payable on such Interest Payment Date.
4. The Interest Payment Dates.
5. CUSIP number of the Global Security representing such Book-
Entry Note.
6. Whether such Global Security will represent any other Book-
Entry Note (to the extent known at such time).
D. To the extent the Company has not already done so, the Company
will deliver or cause to be delivered to the Trustee a supply of Global
Securities in a form that has been approved by the Company, the Guarantor, the
Agents and the Trustee.
E. The Trustee will complete such Book-Entry Note, stamp the
appropriate legend, as instructed by DTC, if not already set forth thereon,
and authenticate the Global Security representing such Book-Entry Note.
F. DTC will credit such Book-Entry Note to the Trustee's participant
account at DTC.
G. The Trustee will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC to (i) debit such Book-Entry Note
to the Trustee's participant account and credit such Book-Entry Note 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 Note less such Agent's commission. The entry of such a
deliver order shall constitute a representation and warranty by the Trustee to
DTC that (i) the Global Security representing such Book-Entry Note has been
issued and authenticated and (ii) the Trustee is holding such Global Security
pursuant to the Medium-Term Note Certificate Agreement between Citibank and
DTC.
H. Such Agent will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC (i) to debit such Book-Entry Note
to such Agent's participant account and credit such Book-Entry Note to the
participant accounts of the Participants with respect to such Book-Entry Note
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 Note.
I. Transfers of funds in accordance with SDFS deliver orders
described in Settlement Procedures "G" and "H" will be settled in accordance
with SDFS operating procedures in effect on the settlement date.
J. The Trustee, upon confirmation of receipt of funds in the
appropriate amount from such Agent in accordance with Settlement Procedure
"G", will credit to an account of the Company maintained at Citibank (or will
transfer such funds as otherwise instructed by the Company).
K. Such Agent will confirm the purchase of such Book-Entry Note to
the purchaser either by transmitting to the Participants with respect to such
Book-Entry Note a confirmation order or orders through DTC's institutional
delivery system or by mailing a written confirmation to such purchaser.
Settlement Procedures Timetable:
- --------------------------------
For orders of Book-Entry Notes solicited by any Agent and accepted by the
Company for settlement on the first Business Day after the sale date,
Settlement Procedures "A" through "K" 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 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 3:00 P.M. on the Business Day before settlement
E 9:00 A.M. on settlement date
F 10:00 A.M. on settlement date
G-H 2:00 P.M. on settlement date
I 4:45 P.M. on settlement date
J-K 5:00 P.M. on settlement date
If a sale is to be settled more than one Business Day after the sale date,
Settlement Procedures "A", "B" and "C" shall be completed as soon as
practicable but no later than 11:00 A.M. and 12:00 Noon on the first Business
Day after the sale date and no later than 2:00 P.M. on the Business Day before
the settlement date, respectively. If the initial interest rate for a
Floating Rate Book-Entry Note 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 12:00
Noon and 2:00 P.M., respectively, on the Business Day before the settlement
date. Settlement Procedure "I" is subject to extension in accordance with any
extension of Fedwire closing deadlines and in the other events specified in
SDFS operating procedures in effect on the settlement date.
If settlement of a Book-Entry Note is rescheduled or canceled, the Trustee,
upon obtaining knowledge thereof, will deliver to DTC, through DTC's
Participant Terminal System, a cancelation message to such effect.
Failure to Settle:
- ------------------
If the Trustee fails to enter an SDFS deliver order with respect to a Book-
Entry Note pursuant to Settlement Procedure "G", the Trustee may deliver to
DTC, through DTC's Participant Terminal System, as soon as practicable a
withdrawal message instructing DTC to debit such Book-Entry Note to the
Trustee's participant account. DTC will process the withdrawal message,
provided that the Trustee's participant account contains a principal amount of
the Global Security representing such Book-Entry Note 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 Notes represented by a Global Security, the
Trustee will cancel such Global Security in accordance with the Indenture and
so advise the Company and the Guarantor, and the Trustee will make appropriate
entries in its records. 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 Notes represented by a Global
Security, the Trustee will exchange such Book-Entry Note for two Global
Securities, one of which shall represent such Book-Entry Notes and shall be
canceled immediately after issuance and the other of which shall represent the
other Book-Entry Notes 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 Note is not timely paid to the
Participants with respect to such Note by the beneficial purchaser thereof (or
a Person, including an indirect participant in DTC, acting on behalf of such
purchaser), such Participants and, in turn, such Agent may enter an order
through DTC's Participant Terminal System, debiting such Book-Entry Note to
such Agent's participant account and crediting such Book-Entry Note to the
participant account of the Trustee and shall notify the Trustee, the Company
and the Guarantor thereof. Thereafter, (i) the Trustee will immediately
notify the Company and the Guarantor of such order and the Company shall
immediately transfer to such Agent an amount in immediately available funds
equal to the amount credited to the account of the Company pursuant to
Settlement Procedure "J" and (ii) the Trustee will 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 a default by such
Agent in the performance of its obligations hereunder or under the Agency
Agreement, then the Company will reimburse such Agent or the Trustee on an
equitable basis for its loss of the use of the funds during the period when
they were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to settle with respect to a
Book-Entry Note, DTC 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 Notes to have been
represented by a Global Security, the Trustee will provide, in accordance with
Settlement Procedure "E", for the Authentication and issuance of a Global
Security representing the other Book-Entry Notes to have been represented by
such Global Security and will make appropriate entries in its records.
Trustee and Paying Agent Not to Risk Funds:
- --------------------------------------------
Nothing herein shall be deemed to require the Trustee or the Paying Agent to
risk or expend its own funds in connection with any payment to the Company,
any Agent, DTC or the purchaser, it being understood by all parties that
payments made by the Trustee or Citibank to the Company, any Agent, DTC or the
purchaser shall be made only to the extent that funds are provided to the
Trustee or the Paying Agent for such purpose.
Authenticity of Signatures:
- ---------------------------
Neither the Paying Agent nor any Agent will have any obligation or liability
to the Company, the Guarantor or the Trustee in respect of the authenticity of
the signature of any director, officer, employee or agent of the Company, the
Guarantor or the Trustee on any Book-Entry Note or any Guaranties relating
thereto.
Statements from the Trustee:
- ----------------------------
Upon request, the Trustee will send to the Company and the Guarantor a
statement setting forth the principal amount of Book-Entry Notes Outstanding
as of that date and setting forth a brief description of any sales of Book-
Entry Notes which the Company has advised Citibank but which have not yet been
settled.
PART II
ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
Unless and until otherwise specified by the Company and the Guarantor, the
Trustee will serve as registrar and transfer agent in connection with the
Certificated Notes.
Issuance:
- ---------
Each Certificated Note will be dated and issued as of the date of its
authentication by the Trustee. Each Certificated Note will bear an Original
Issue Date, which will be (i) with respect to an original Certificated Note
(or any portion thereof), its original issuance date (which will be the
settlement date) and (ii) with respect to any Certificated Note (or portion
thereof) issued subsequently upon transfer or exchange of a Certificated Note
or in lieu of a destroyed, lost or stolen Certificated Note, the Original
Issue Date of the predecessor Certificated Note, regardless of the date of
authentication of such subsequently issued Certificated Note.
Registration:
- -------------
Certificated Notes will be issued only in fully registered form without
coupons.
Transfers and Exchanges:
- ------------------------
A Certificated Note may be presented for transfer or exchange at the principal
corporate trust office in the City of New York of the Trustee. Certificated
Notes will be exchangeable for other Certificated Notes having identical terms
but different authorized denominations without service charge. Certificated
Notes will not be exchangeable for Book-Entry Notes.
Maturities:
- -----------
Each Certificated Note will mature nine months or more from date of its issue.
Denominations:
- --------------
The denomination of any Certificated Note denominated in U.S. dollars will be
a minimum of $1,000 or any amount in excess thereof that is an integral
multiple of $1,000. The authorized denominations of Certificated Notes
denominated in any other currency will be specified pursuant to "Settlement
Procedures" below.
Interest:
- ---------
GENERAL. Unless otherwise specified in the applicable Pricing Supplement,
interest, if any, on each Certificated Note will accrue from the original
issue date for the first interest period or the last date to which interest
has been paid, if any, for each subsequent interest period, and will be
calculated and paid in the manner described in such Certificated Note and in
the Prospectus, as supplemented by the applicable Pricing Supplement. Unless
otherwise specified therein, each payment of interest on a Certificated Note
will include interest accrued to but excluding the Interest Payment Date or to
but excluding Maturity (other than a Maturity of a Fixed Rate Certificated
Note occurring on the 31st day of a month, in which case such payment of
interest will include interest accrued to but excluding the 30th day of such
month).
REGULAR RECORD DATES. Unless otherwise specified in the applicable Pricing
Supplement, the Regular Record Dates with respect to any Interest Payment Date
shall be the date fifteen calendar days immediately preceding such Interest
Payment Date.
FIXED RATE CERTIFICATED NOTES. Unless otherwise specified pursuant to
Settlement Procedure "A" below, interest payments on Fixed Rate Certificated
Notes will be made semiannually on April 15 and October 15 of each year and at
Maturity; provided, however, that in the case of a Fixed Rate Certificated
Note issued between a Regular Record Date and an Interest Payment Date, the
first interest payment will be made on the Interest Payment Date following the
next succeeding Regular Record Date.
FLOATING RATE CERTIFICATED NOTES. Unless otherwise specified in the applicable
Pricing Supplement, interest payments will be made on Floating Rate
Certificated Notes monthly, quarterly, semi-annually or annually. Unless
otherwise specified in the applicable Pricing Supplement, interest will be
payable, in the case of Floating Rate Certificated Notes with a monthly
Interest Payment Period, on the third Wednesday of each month; with a
quarterly Interest Payment Period, on the third Wednesday of March, June,
September and December of each year; with a semi-annual Interest Payment
Period, on the third Wednesday of the two months specified pursuant to
Settlement Procedure "A" below; and with an annual Interest Payment Period, on
the third Wednesday of the month specified pursuant to Settlement Procedure
"A" below; provided, however, that if an Interest Payment Date for a Floating
Rate Certificated Note would otherwise be a day that is not a Business Day
with respect to such Floating Rate Certificated Note, such Interest Payment
Date will be the next succeeding Business Day with respect to such Floating
Rate Certificated Note, except in the case of a Floating Rate Certificated
Note for which the Base Rate is LIBOR, if such Business Day is in the next
succeeding calendar month, such Interest Payment Date will be the immediately
preceding Business Day; and provided further, that in the case of a Floating
Rate Certificated Note issued between a Regular Record Date and an Interest
Payment Date, the first interest payment will be made on the Interest Payment
Date following the next succeeding Regular Record Date.
Calculation of Interest:
- ------------------------
FIXED RATED CERTIFICATED NOTE. Interest on Fixed Rate Certificated Notes
(including interest for partial periods) will be, unless otherwise specified
in the applicable Pricing Supplement, calculated on the basis of a 360-day
year of twelve 30-day months.
FLOATING RATE CERTIFICATED NOTES. Interest rates on Floating Rate Certificated
Notes will be determined as set forth in the form of Notes. Interest on
Floating Rate Certificated Notes, except as otherwise set forth therein and
unless otherwise specified in the applicable Pricing Supplement, will be
calculated on the basis of actual days elapsed and a year of 360 days, except
that in the case of a Floating Rate Certificated Note for which the Base Rate
is Treasury Rate or CMT Rate, interest will be calculated on the basis of the
actual number of days in the year.
Payments of Principal and Interest:
- ------------------------------------
The Paying Agent will pay the principal amount of each Certificated Note at
Maturity upon presentation of such Certificated Note to the Trustee and
notification thereof by the Trustee to the Paying Agent if the Trustee is not
the Paying Agent. Such payment, together with payment of interest due at
Maturity of such Certificated Note, will be made in immediately available
funds by the Paying Agent to the Holder of such Certificated Note.
Certificated Notes presented to the Trustee at Maturity for payment will be
canceled by the Trustee in accordance with the Indenture. All interest
payments on a Certificated Note (other than interest due at Maturity) will be
made by check drawn on the Paying Agent (or another Person appointed by the
Company or the Guarantor) and mailed by the Paying Agent to the Person
entitled thereto as provided in such Note and the Indenture; provided,
however, that the holder of U.S.$10,000,000 (or the equivalent thereof in
other currencies) or more of Certificated Notes with similar tenor and terms
will be entitled to receive payment by wire transfer in U.S. dollars, but only
if appropriate instructions have been received in writing by the Paying Agent
on or prior to the applicable record date. Following each Regular Record Date
and Special Record Date, the Trustee will furnish the Company and the
Guarantor with a list of interest payments to be made on the following
Interest Payment Date for each Certificated Note and in total for all
Certificated Notes. Interest at Maturity will be payable to the Person to
whom the payment of principal is payable. The Trustee will provide monthly to
the Company and the Guarantor lists of principal and interest, to the extent
ascertainable, to be paid on Certificated Notes maturing (on a Maturity or
Redemption Date or otherwise) in the next month.
The Paying Agent will be responsible for withholding taxes on interest paid on
Certificated Notes as required by applicable law.
If any Interest Payment Date for, or the Maturity of, a Certificated Note is
not a Business Day, the Payment due on such day shall be made, unless
otherwise specified in the applicable Pricing Supplement, on the next
succeeding Business Day and no interest shall accrue on such payment for the
period from and after such Interest Payment Date or Maturity, as the case may
be.
Procedure for Rate Setting and Posting:
- -----------------------------------------
The Company, the Guarantor and the Agents will discuss from time to time the
aggregate principal amount of, the issuance price of, and the interest rates
to be borne by, Notes that may be sold as a result of the solicitation of
orders by the Agents. If the Company decides to set prices of, and rates
borne by, any Notes in respect of which the Agents are to solicit orders (the
setting of such prices and rates to be referred to herein as "posting") or if
the Company decides to change prices or rates previously posted by it, it will
promptly advise the Agents of the prices and rates to be posted.
Acceptance and Rejection of Orders:
- -----------------------------------
Unless otherwise instructed by the Company or the Guarantor, each Agent will
advise the Company and the Guarantor promptly by telephone of all orders to
purchase Certificated Notes received by such Agent, other than those rejected
by it in whole or in part in the reasonable exercise of its discretion.
Unless otherwise agreed by the Company, the Guarantor and the Agents, the
Company has the sole right to accept orders to purchase Certificated Notes and
may reject any such orders in whole or in part.
Preparation of Pricing Supplement:
- ----------------------------------
If any order to purchase a Certificated Note is accepted by or on behalf of
the Company, the Company will prepare or cause to be prepared a Pricing
supplement (a "Pricing Supplement") reflecting the terms of such Certificated
Note and will arrange to transmit the same for filing with the Commission in
accordance with the applicable paragraph of Rule 424(b) under the Act and will
supply or cause to be supplied a copy thereof (and additional copies if
requested) to the Agent that solicited the order. Such Agent will cause a
Prospectus and Pricing Supplement to be delivered to the purchaser of such
Certificated Note.
In each instance that a Pricing Supplement is prepared, such Agent will affix
the Pricing Supplement to Prospectuses prior to their use. Outdated Pricing
Supplements (other than those retained for files), will be destroyed.
Suspension of Solicitation; Amendment or Supplement:
- ----------------------------------------------------
Subject to the representations, warranties and covenants of the Company and
the Guarantor contained in the Agency Agreement, the Company or the Guarantor
may instruct the Agents to suspend at any time for any period of time or
permanently, the solicitation of orders to purchase Certificated Notes of the
Company. Upon receipt of such instructions, the Agents will forthwith suspend
solicitation until such time as the Company or the Guarantor has advised them
that such solicitation may be resumed.
In the event that at the time the Company or the Guarantor suspends
solicitation of purchases there shall be any orders outstanding for
settlement, the Company or the Guarantor will promptly advise the Agents and
the Trustee whether such orders may be settled and whether copies of the
Prospectus as in effect at the time of the suspension, together with the
appropriate Pricing Supplement, may be delivered in connection with the
settlement of such orders. The Company and the Guarantor will have the sole
responsibility for such decision and for any arrangements that may be made in
the event that the Company or the Guarantor determines that such orders may
not be settled or that copies of such Prospectus may not be so delivered.
If any Issuer or the Guarantor decides to amend or supplement the Registration
Statement or the Prospectus, it will promptly advise the Agents and furnish
the Agents with the proposed amendment or supplement and with such
certificates and opinions as are required, all to the extent required by and
in accordance with the terms of the Agency Agreement. Subject to the
provisions of the Agency Agreement, any Issuer and the Guarantor may file with
the Commission any supplement to the Prospectus relating to the Notes. Such
Issuer and the Guarantor will provide the Agents and the Trustee with copies
of any such supplement, and confirm to the Agents that such supplement has
been filed with the Commission pursuant to the applicable paragraph of Rule
424(b).
Procedure for Rate Changes:
- ---------------------------
When the Company has determined to change the interest rates of Certificated
Notes being offered, it will, or the Guarantor of behalf of the Company will,
promptly advise the Agents and the Agents will forthwith suspend solicitation
of orders. The Agents will telephone the Company and the Guarantor with
recommendations as to the changed interest rates. At such time as the
Company, or the Guarantor of behalf of the Company, has advised the Agents of
the new interest rates, the Agents may resume solicitation of orders. Until
such time only "indications of interest" may be recorded. Within two business
days after any sale of Notes, the Company will file with the Securities and
Exchange Commission a Pricing Supplement to the Prospectus relating to such
Notes that reflects the applicable interest rates and other terms and will
deliver copies of such Pricing Supplement to the Agents.
Delivery of Prospectus:
- -----------------------
A copy of the Prospectus and a Pricing Supplement relating to a Certificated
Note must accompany or precede the earliest of any written offer of such
Certificated Note, confirmation of the purchase of such Certificated Note and
payment for such Certificated Note by its purchaser. If notice of a change in
the terms of the Certificated Notes is received by any Agent between the time
an order for a Certificated Note is placed and the time written confirmation
thereof is sent by such Agent to a customer or his agent, such confirmation
shall be accompanied by a Prospectus and Pricing Supplement setting forth the
terms in effect when the order was placed. Subject to "Suspension of
Solicitation; Amendment or Supplement" above, such Agent will deliver a
Prospectus and Pricing Supplement as herein described with respect to each
Certificated Note sold by it. The Company will make such delivery if such
Certificated Note is sold directly by the Company to a purchaser (other than
any Agent).
Confirmation:
- -------------
For each order to purchase a Certificated Note solicited by any Agent and
accepted by or on behalf of the Company, any Agent will issue a confirmation
to the purchaser, with a copy to the Company and the Guarantor, setting forth
the details set forth above and delivery and payment instructions.
Settlement:
- -----------
The receipt by the Company of immediately available funds in exchange for an
authenticated Certificated Note delivered to the Agent and the Agent's
delivery of such Certificated Note against receipt of immediately available
funds shall, with respect to such Certificated Note, constitute "settlement".
All orders accepted by or on behalf of the Company will be settled on the
third Business Day following the date of sale pursuant to the timetable for
settlement set forth below, unless at the time of sale the Company and the
purchaser expressly agree to settlement on another day which shall be no
earlier than the next Business Day following the date of sale.
Settlement Procedures:
- ----------------------
Settlement Procedures with regard to each Certificated Note sold by the
Company through any Agent, as agent, shall be as follows:
A. Such Agent will advise the Company and the Guarantor by telephone
of the following settlement information:
1. Name in which such Certificated Note is to be registered
("Registered Owner").
2. Address of the Registered Owner and address for payment of
principal and interest.
3. Taxpayer identification number of the Registered Owner (if
available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate Certificated Note, the interest
rate or, in the case of a Floating Rate Certificated Note, the initial
interest rate (if known at such time), Base Rate, Index Maturity, Interest
Reset Period, Interest Reset Dates, Spread or Spread Multiplier (if any),
minimum interest rate (if any) and maximum interest rate (if any).
7. Interest Payment Dates.
8. Specified Currency and whether the option to elect payment
in a Specified Currency applies and if the Specified Currency is not U.S.
dollars, the authorized denominations.
9. Redemption provisions, if any, and/or early repayment
provisions, if any.
10. Settlement date.
11. Issue price (including currency) and net proceeds to the
Company.
12. Such Agent's commission, determined as provided in Section
2 of the Agency Agreement.
13. Whether such Certificated Note is issued at an original
issue discount, and, if so, the total amount of OID, the yield to maturity and
initial accrual period OID.
B. The Company will advise the Trustee by telex or facsimile
transmission of the information set forth in Settlement Procedure "A" above
and the name of such Agent. Each such communication by the Company shall
constitute a representation and warranty by the Company and the Guarantor to
the Trustee and the Agents that (i) such Certificated Note and any Guaranties
relating thereto are then, and at the time of issuance and sale thereof will
be, duly authorized for issuance and sale by the Company and the Guarantor,
respectively, (ii) such Certificated Note and any Guaranties relating thereto
will conform with the terms of the Indenture and (iii) upon authentication and
delivery of such Certificated Note, the aggregate principal amount of all
Notes issued under the Indenture will not exceed U.S. $4,485,700,000 , or the
equivalent thereof in foreign denominated currencies or units consisting of
multiple currencies (except for Notes authenticated and delivered upon
registration or transfer of, or in exchange for, or in lieu of other Notes
pursuant to Article Three or Section 4.07 or 9.06 of the Indenture).
C. The Company will deliver to the Trustee a pre-printed five-ply
packet for such Certificated Note, which packet will contain the following
documents in forms that have been approved by the Company, the Guarantor, the
Agents and the Trustee:
1. Certificated Note with customer confirmation.
2. Stub One - For the Trustee.
3. Stub Two - For the Agent.
4. Stub Three - For the Company.
5. Stub Four - For the Guarantor (if applicable).
D. The Trustee will complete such Certificated Note and will
authenticate and deliver such Certificated Note (with the confirmation) and
Stubs One and Two to such Agent, and such Agent will acknowledge receipt of
the Note by stamping or otherwise marking Stub One and returning it to the
Trustee. Such delivery will be made only against such acknowledgment of
receipt. Upon receipt of such Certificated Note, such Agent shall make
payment to the account of the Company at Citibank (or to such other bank
specified by the Company) in funds available for immediate use, of an amount
equal to the price of such Certificated Note less such Agent's commission. In
the event that the instructions given by such Agent for payment to the account
of the Company are revoked, the Company will as promptly as possible wire
transfer to the account of such Agent an amount of immediately available funds
equal to the amount of such payment made.
E. Such Agent will deliver such Certificated Note (with the
confirmation) to the customer against payment in immediately payable funds.
Such Agent will obtain the acknowledgment of receipt of such Certificated Note
by retaining Stub Two.
F. The Trustee will send Stub Three to the Company by first-class
mail or by first-class airmail, as applicable.
G. In the case of any Certificated Note of any Xerox Capital, the
Trustee will send Stub Four to the Guarantor by first-class mail. In the case
of any Certificated Note of Xerox, the Trustee shall destroy Stub Four.
Settlement Procedures Timetable:
- --------------------------------
For orders of Certificated Notes solicited by any Agent, as agent, and
accepted by the Company, Settlement Procedures "A" through "F" set forth above
shall be completed on or before the respective times (New York City time) set
forth below:
Settlement
Procedure Time
A 2:00 P.M. on the Business Day before settlement
B-C 3:00 P.M. on the Business Day before settlement
D 2:00 P.M. on settlement date
E 3:00 P.M. on settlement date
F 5:00 P.M. on settlement date
Failure to Settle:
- ------------------
If a purchaser fails to accept delivery of and make payment for any
Certificated Note, such Agent will notify the Company, the Guarantor and the
Trustee by telephone and return such Certificated Note to the Trustee. Upon
receipt of such notice, the Company will immediately wire transfer to the
account of such Agent an amount equal to the amount previously credited to the
account of Company in respect of such Certificated Note. Such wire transfer
will be made on the settlement date, if possible, and in any event not later
than the Business Day following the settlement date. If the failure shall
have occurred for any reason other than a default by such Agent in the
performance of its obligations hereunder and under the Agency Agreement, then
the Company will reimburse such Agent, as appropriate, on an equitable basis
for its loss of the use of the funds during the period when they were credited
to the account of the Company. Immediately upon receipt of the Certificated
Note in respect of which such failure occurred, the Trustee will cancel such
Certificated Note in accordance with the Indenture and so advise the Company
and the Guarantor, and the Trustee will make appropriate entries in its
records.
Trustee and Paying Agent Not to Risk Funds:
- ----------------------------------------------
Nothing herein shall be deemed to require the Trustee or the Paying Agent to
risk or expend its own funds in connection with any payment to the Company, or
any Agent or the purchaser, it being understood by all parties that payments
made by the Trustee or the Paying Agent to either the Company or the Agent
shall be made only to the extent that funds are provided to the Trustee or
Citibank for such purpose.
Authenticity of Signatures:
- ---------------------------
Neither the Paying Agent nor any Agent will have any obligation or liability
to the Company, the Guarantor or the Trustee in respect of the authenticity of
the signature of any director, officer, employee or agent of the Company, the
Guarantor or the Trustee on any Certificated Note or any Guaranties relating
thereto.
Statements from the Trustee:
- ----------------------------
Upon request, the Trustee will send to the Company and the Guarantor a
statement setting forth the principal amount of Certificated Notes Outstanding
as of that date and setting forth a brief description of any sales of
Certificated Notes which the Company or the Guarantor has advised the Trustee
but which have not yet been settled.
EXHIBIT B
Xerox Corporation
Xerox Capital (Europe) plc
Medium Term Notes, Series F
Due Nine Months or More from Date of Issue
TERMS AGREEMENT
[DATE]
Attention :
Subject in all respects to the terms and conditions of the Selling Agency
Agreement (the "Agreement") dated March 25, 1999, among Chase Securities Inc.,
Goldman, Sachs & Co., Lehman Brothers Inc., Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities Inc.,
Morgan Stanley & Co. Incorporated, Salomon Smith Barney Inc., [insert as
appropriate -- Xerox Corporation, Xerox Capital (Europe) plc (formerly Rank
Xerox Capital (Europe) plc)] and you, the undersigned agrees to purchase the
following Notes of [insert as appropriate -- Xerox Corporation, Xerox Capital
(Europe) plc] (the "Company"):
GENERAL:
Principal Amount: $
Issue Price: $ ( % of Principal Amount)
(see below under 'If as Principal' if Agent(s) is(are) acting as Principal)
Agent's Discount or Commission: ( % of Principal Amount)
Net proceeds to Company: ( % of Principal Amount)
Original Issue Date:
Maturity Date:
Agent(s):
Agent's capacity: / / As Agent / / As Principal (see below)
If as Principal: / / The Note is being offered at varying prices related
to prevailing market
prices at the time of resale.
/ / The Note is being offered at a fixed initial public
offering price of
% of Principal Amount.
Form of Note: / / Book Entry / / Certificated
Specified Currency (if other than U.S. dollars):
Authorized Denominations (if other than denominations of U.S.$1,000 and any
integral multiples in excess thereof):
INTEREST
/ / Floating Rate Note:
Base Rate(s):
/ / Commercial Paper Rate
/ / CD Rate
/ / CMT Rate Designated CMT Telerate Page: / / Page 7051
/ / Page 7052
Designated CMT Maturity Index:
/ / Federal Funds Rate
/ / Prime Rate
/ / Treasury Rate
/ / LIBOR: Designated LIBOR Page: / / LIBOR Reuters
/ / LIBOR Telerate
Index Currency (if other than U.S. dollars):
/ / Other (see Attachment)
Index Maturity:
Initial Interest Rate:
Interest Payment Date(s):
Interest Reset Period:
Interest Reset Date(s):
Spread (+/-):
Spread Multiplier:
Maximum Interest Rate:
Minimum Interest Rate:
Calculation Agent (if other than Citibank, N.A.):
The date on which interest is payable (on each Interest Payment Date and at
Maturity) will be subject to adjustment in accordance with:
/ / the Following Business Day Convention
/ / the Modified Following Business Day Convention
/ / another business day convention: (specify)
The Floating Rate Period End Date will be subject to:
/ / adjustment in accordance with the Following Business Day Convention
/ / adjustment in accordance with the Modified Following Business Day
Convention
/ / adjustment in accordance with another business day convention: (specify)
/ / no adjustment
Other provisions:
/ / Fixed Rate Note(other than Amortizing Note or Zero-Coupon Note):
Fixed rate of: % per annum
The date on which interest is payable (on each Interest Payment Date and
at Maturity) will be subject to adjustment in accordance with:
/ / the Following Business Day Convention
/ / another business day convention: (specify)
The Fixed Rate Period End Date will be subject to:
/ / adjustment in accordance with the Following Business Day Convention
/ / adjustment in accordance with another business day convention: (specify)
/ / no adjustment
/ / Amortizing Note (see Attachment)
/ / Zero-Coupon Note (see Attachment)
/ / Discount Note (see below)
Total Amount of OID:
Yield to Maturity:
Initial Accrual Period OID:
Other provisions:
/ / Currency Indexed Note (see Attachment)
/ / Other Indexed Note (see Attachment)
EARLY REDEMPTION AND REPAYMENT; OPTIONAL EXTENSION OF MATURITY DATE AND
RESETS; AND PAYMENT CURRENCY
Early redemption at Company's option: / / No / / Yes (see below)
Redemption date(s):
Redemption price(s): % of the principal amount of the Note to be
redeemed
Other provisions:
Early repayment at Holder's option: / / No / / Yes (see below)
Repayment date(s):
Repayment price(s): % of the principal amount of the Note to be repaid
Other provisions:
Option to extend Maturity Date: / / No / / Yes (see below and
Attachment)
By: / / the Company / / the Holder
Option to reset interest rate (if Fixed Rate Note) or Spread and/or Spread
Multiplier (if Floating Rate Note): / / No / /
Yes (see Attachment)
Option to receive payment in a Foreign Currency (if Currency Indexed Note):
/ / No / / Yes (see Attachment)
ATTACHMENT
Purchase Date and Time:
Place for Delivery of Notes and Payment Therefor:
Method of Payment:
[Period during which additional Notes may not be sold pursuant to Section 4(m)
of the Agreement:]
[Certificates, opinions and comfort letter delivery requirements pursuant to
Section 6(b) of the Agreement:]
[Purchaser]
By:
Accepted:
[Insert as appropriate --
XEROX CORPORATION
XEROX CAPITAL (EUROPE) PLC]
By:
Title:
[By:
Title:]
Exhibit 4(c)(12)
[FORM OF FACE OF MEDIUM-TERM NOTE]
[LEGEND FOR NOTE HELD BY DTC]
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to Issuer 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 DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), 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.
[Applicable only if Notes are issued in Sterling -- This is a [shorter term /
longer term - SHORTER TERM IF THE NOTE MAY NOT BE REDEEMED UNTIL THE FIRST
ANNIVERSARY, AND MUST BE REDEEMED BEFORE THE THIRD ANNIVERSARY, OF THE DATE OF
ISSUE; LONGER TERM IF THE NOT MAY NOT BE REDEEMED UNTIL THE THIRD ANNIVERSARY
OF THE DATE OF ISSUE] debt security issued in accordance with regulations made
under Section 4 of the Banking Act 1987 of the United Kingdom.]
REGISTERED PRINCIPAL AMOUNT:
No. R- CUSIP
[XEROX CORPORATION]
[XEROX CAPITAL (EUROPE) PLC]
MEDIUM-TERM NOTE, SERIES F
Due Nine Months or More From Date of Issue
If Applicable, the "Total Amount of OID", "Yield to Maturity" and "Initial
Accrual Period OID" (computed under the approximate method) below will be
completed solely for the purposes of applying the Federal income tax Original
Issue Discount ("OID") Rules.
GENERAL:
Principal Amount:
Issue Price: $ ( % of Principal Amount)
(see below under 'If as Principal' if Agent(s) is(are) acting as Principal)
Agent's Discount or Commission: $ ( % of Principal Amount)
Net proceeds to Company: $ ( % of Principal Amount)
Original Issue Date:
Maturity Date:
Agent(s):
Agent's capacity: / / As Principal (see below) / / As Agent
If as Principal: / / The Note is being offered at varying prices related to
prevailing market prices at the time of resale.
/ / The Note is being offered at a fixed initial public
offering price of % of Principal Amount.
Form of Note: / / Book Entry / / Certificated
Specified Currency (if other than U.S. dollars):
Authorized Denominations (if other than denominations of U.S.$1,000 and any
integral multiples in excess thereof):
INTEREST
/ / Floating Rate Note:
Base Rate(s):
/ / Commercial Paper Rate
/ / CD Rate
/ / CMT Rate Designated CMT Telerate Page: / / Page 7051
/ / Page 7052
Designated CMT Maturity Index:
/ / Federal Funds Rate
/ / Prime Rate
/ / Treasury Rate
/ / LIBOR: Designated LIBOR Page: / / LIBOR Reuters
/ / LIBOR Telerate
Index Currency (if other than U.S. dollars):
/ / Other (see Attachment)
Index Maturity:
Initial Interest Rate:
Interest Payment Date(s):
Interest Reset Period:
Interest Reset Date(s):
Spread (+/-):
Spread Multiplier:
Maximum Interest Rate:
Minimum Interest Rate:
Calculation Agent (if other than Citibank, N.A.):
The date on which interest is payable (on each Interest Payment Date and at
Maturity) will be subject to adjustment in accordance with:
/ / the Following Business Day Convention
/ / the Modified Following Business Day Convention
/ / another business day convention: (specify)
The Floating Rate Period End Date will be subject to:
/ / adjustment in accordance with the Following Business Day Convention
/ / adjustment in accordance with the Modified Following Business Day
Convention
/ / adjustment in accordance with another business day convention:
(specify)
/ / no adjustment
Other provisions:
/ / Fixed Rate Note(other than Amortizing Note or Zero-Coupon Note):
Fixed rate of: % per annum
The date on which interest is payable (on each Interest Payment Date and
at Maturity) will be subject to adjustment in accordance with:
/ / the Following Business Day Convention
/ / another business day convention: (specify)
The Fixed Rate Period End Date will be subject to:
/ / adjustment in accordance with the Following Business Day
Convention
/ / adjustment in accordance with another business day convention:
(specify)
/ / no adjustment
/ / Amortizing Note (see Attachment)
/ / Zero-Coupon Note (see Attachment)
/ / Discount Note (see below)
Total Amount of OID:
Yield to Maturity:
Initial Accrual Period OID:
Other provisions:
/ / Currency Indexed Note (see Attachment)
/ / Other Indexed Note (see Attachment)
EARLY REDEMPTION AND EARLY REPAYMENT; OPTIONAL EXTENSION OF MATURITY DATE AND
RESETS; AND PAYMENT CURRENCY
Early redemption at Company's option: / / No / / Yes (see below)
Redemption date(s):
Redemption price(s): % of the principal amount of the Note to be
redeemed
Other provisions:
Early repayment at Holder's option: / / No / / Yes (see below)
Repayment date(s):
Repayment price(s): % of the principal amount of the Note to be repaid
Other provisions:
Option to extend Maturity Date: / / No / / Yes (see below and Attachment)
By: / / the Company / / the Holder
Option to reset interest rate (if Fixed Rate Note) or Spread and/or Spread
Multiplier (if Floating Rate Note): / / No / / Yes (see Attachment)
Option to receive payment in a Foreign Currency (if Currency Indexed Note):
/ / No / / Yes (see Attachment)
ATTACHMENT
SCHEDULE A
/ / THE FOREGOING TERMS OF THIS NOTE ARE SET FORTH IN THE COMPANY'S PRICING
SUPPLEMENT NO. DATED TO PROSPECTUS DATED
AND PROSPECTUS SUPPLEMENT DATED
ATTACHED AS SCHEDULE A HERETO AND MADE A PART HEREOF.
[XEROX CORPORATION, a corporation duly organized and existing under the
laws of the state of New York] [XEROX CAPITAL (EUROPE) PLC, a public limited
company organized under the laws of England and Wales] (herein referred to as
the "Company" or the "Issuer"), for value received, hereby promises to pay
or registered assigns, the principal sum of __________________________________
at Maturity (as defined below) and to pay interest thereon as described on the
reverse hereof.
The principal of (and premium, if any) and interest on this Note are
payable by the Company in such coin or currency specified above as at the time
of payment shall be legal tender for the payment of public and private debts
(the "Specified Currency"). If the Specified Currency is other than U.S.
dollars (a "Foreign Currency"), the Company will arrange to have all such
payments converted into U.S. dollars in the manner described in Section 6 on
the reverse hereof. Notwithstanding the foregoing, the Holder hereof (as
defined in the Indenture referred to on the reverse hereof) may, if so
specified on the face hereof and subject to the conditions set forth in
Section 6 of the reverse hereof, elect to receive all payments in respect
hereof in the Specified Currency shown on the face hereof in the manner
described in Section 6 on the reverse hereof. Such election will remain in
effect unless and until changed by written notice to the Paying Agent received
on or prior to the applicable Regular Record Date or at least fifteen calendar
days prior to Maturity, as the case may be. "Maturity" means the date on
which the principal of this Note becomes due and payable in accordance with
its terms, whether on the Maturity Date shown on the face hereof or by
declaration of acceleration, call for redemption, put for repayment, extension
of Maturity Date or otherwise.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH
ON THE REVERSE HEREOF, AND SUCH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE
THE SAME EFFECT AS THOUGH FULLY SET FORTH IN THIS PLACE.
This Note shall not become valid or obligatory for any purpose unless and
until this Note has been authenticated by Citibank, N.A., or its successor, as
Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, the Company has caused this Note to be executed under
its corporate seal.
DATED: [XEROX CORPORATION]
[XEROX CAPITAL (EUROPE) PLC]
By:_________________________________
__________________________________
[Secretary or Assistant Secretary]
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series
provided under the within-mentioned Indenture.
Citibank, N.A.,
as Trustee
By:______________________________
Authorized Signatory
[FORM OF REVERSE OF MEDIUM-TERM NOTE]
[XEROX CORPORATION]
[XEROX CAPITAL (EUROPE) PLC]
MEDIUM-TERM NOTE, SERIES F
Due Nine Months or More From Date of Issue
1. This is one of a duly authorized issue of debentures, notes, bonds or
other evidences of indebtedness of the Company (herein called the
"Securities") of a series hereinafter specified, as issued and to be issued
under an indenture dated as of October 21, 1997 (as amended, supplemented or
modified from time to time, the "Indenture"), among Xerox Corporation, Xerox
Overseas Holdings Limited (formerly Xerox Overseas Holdings PLC), Xerox
Capital (Europe) plc (formerly Rank Xerox Capital (Europe) plc), Xerox
Corporation, as Guarantor (in such capacity, the "Guarantor"), and Citibank,
N.A., as trustee (the "Trustee", which term includes any successor Trustee
under the Indenture), to which Indenture reference is hereby made for a
statement of the respective rights and obligations thereunder of the Company,
[Applicable only if the Company is Xerox Capital (Europe) plc -- the
Guarantor,] the Trustee and the Holders of the Securities, and the terms upon
which the Securities are, and are to be, authenticated and delivered. All
capitalized terms used herein without definition shall have the meanings
assigned to such terms in the Indenture.
[Applicable only if Notes are issued in sterling by Xerox Corporation --
The Company is not an authorised institution or a European authorised
institution under the Banking Act 1987 of the United Kingdom. Repayment of
the principal and the payment of any interest or premium in connection
herewith have not been guaranteed.]
[Applicable only if Notes are issued in sterling by Xerox Capital
(Europe) plc -- The Company is not an authorised institution or a European
authorised institution under the Banking Act 1987 of the United Kingdom.
Repayment of the principal and the payment of any interest or premium in
connection herewith have been guaranteed by the Guarantor, which is not an
authorised institution or a European authorised institution under Section 4 of
the Banking Act 1987 of the United Kingdom.]
The Securities may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may mature at
different times, may bear interest (if any) at different rates, may be subject
to different redemption provisions (if any), may be subject to different
sinking, purchase or analogous funds (if any), may be subject to different
covenants and Events of Default and may otherwise vary as in the Indenture
provided. This Note is one of a series of Securities of the Company
designated as its Medium-Term Notes, Series F (herein called the "Notes"),
limited in aggregate principal amount of U.S.$4,485,700,000 or the equivalent
thereof in one of more foreign or composite currencies or currency units. The
Company may, however, increase the foregoing limit if it determines in the
future that it wishes to sell additional Notes of this Series. The U.S.
dollar equivalent of Notes denominated in currencies or currency units other
than U.S. dollars will be determined by an agent appointed by the Company (the
"Exchange Rate Agent"), which shall initially be Citibank, N.A., on the basis
of the Market Exchange Rate (as defined in Section 6 hereof) for such
currencies or currency units on the applicable trading dates. The Notes of
this series may be issued at various times with different maturity dates and
different principal repayment provisions, may bear interest (if any) at
different rates, may be payable in different currencies or currency units and
may otherwise vary, all as provided herein and in the Indenture.
2(A). Unless otherwise specified on the face hereof, a Regular Record
Date for a Floating Rate Note with respect to any Interest Payment Date
specified on the face hereof shall be the date, whether or not such date shall
be a Business Day (as defined in this Section 2(A) below), which is 15
calendar days immediately preceding such Interest Payment Date. Interest
which is payable, and is punctually paid or duly provided for on each Interest
Payment Date specified above, will be paid to the Person in whose name this
Note (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such Interest Payment Date, provided,
however, that interest payable at Maturity shall be paid to the Person to whom
the principal hereof is payable. Notwithstanding the foregoing, if this Note
is issued between a Regular Record Date and an Interest Payment Date or on an
Interest Payment Date, the interest so payable for the period from the
Original Issue Date to such Interest Payment Date shall be paid on the next
succeeding Interest Payment Date to the Registered Holder hereof on the
related Regular Record Date. Any such interest not so punctually paid or duly
provided for shall forthwith cease to be payable to the Registered Holder
hereof on such Regular Record Date and may be paid to the Person in whose name
this Note (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 Notes not less than ten calendar days prior to such Special Record Date, or
may be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes may be listed, and
upon such notice as may be required by such exchange, as more fully described
in said Indenture.
Unless otherwise specified on the face hereof, "Business Day" means any
day, other than a Saturday or Sunday, that is neither a legal holiday nor a
day on which commercial banks are authorized or required by law, regulation or
executive order to close in The City of New York; provided, however, that,
with respect to Foreign Currency Notes, such day is also not a day on which
commercial banks are authorized or required by law, regulation or executive
order to close in the Principal Financial Center of the country issuing the
Specified Currency (or, if the Specified Currency is euro, such day is also a
day on which the Trans-European Automated Real-Time Gross Settlement Express
Transfer (TARGET) System is open); provided, further, that, with respect to
Notes as to which LIBOR is the Base Rate, such day is also a London Banking
Day. Unless otherwise specified on the face hereof, "London Banking Day" means
a day on which commercial banks are open for business (including dealings in
the Index Currency in London.
In connection with any calculations of the rate of interest in this Note,
all percentages will be, unless otherwise specified on the face hereof,
rounded, if necessary, to the nearest one one-hundred-thousandth of a percent
(with five one-millionths of a percent being rounded upwards), and all
currency or currency unit amounts used in or resulting from calculations on
the Notes will be rounded to the nearest one one-hundredth of a unit (with
five one-thousandths of a unit being rounded upwards).
2(B). If this is a Fixed Rate Note, the Company promises to pay interest
on the principal amount shown on the face hereof at the rate per annum shown
on the face hereof from the Original Issue Date shown on the face hereof until
such principal amount is paid or made available for payment. Unless otherwise
provided on the face hereof, the Company will pay interest on a Fixed Rate
Note (other than an Amortizing Note (as defined in this Section 2(B) below) or
a Note which, in lieu of any interest payment thereon, will be issued at a
price less than 100% of the principal amount thereof (each such Note, a "Zero-
Coupon Note")) at Maturity and semi-annually in arrears on each April 15 and
October 15 (each an "Interest Payment Date"), commencing with the Interest
Payment Date specified on the face hereof, and the "Regular Record Dates" with
respect to such Fixed Rate Note will be March 31 and September 30 (whether or
not a Business Day).
Unless otherwise provided on the face hereof, if this is a Fixed Rate
Note the payment of both principal of and interest on which is amortized at a
level amount over the life of such Note (each such Note, an "Amortizing
Note"), the Company will pay principal of and interest on such Note at
Maturity and either semi-annually each April 15 and October 15 or quarterly
each January 15, April 15, July 15 and October 15, and the "Regular Record
Dates" will be March 31 and September 30 (whether or not a Business Day), in
the case that the principal of and interest on such Amortizing Note are
payable semi-annually, and December 31, March 31, June 30 and September 30
(whether or not a Business Day), in the case that the principal of and
interest on such Amortizing Note are payable quarterly. Payments with respect
to Amortizing Notes will be applied first to interest due and payable thereon
and then to the reduction of the unpaid principal amount thereof.
Unless otherwise specified on the face hereof, each payment of interest
on a Fixed Rate Note shall include interest accrued to but excluding the
Interest Payment Date or Maturity, as the case may be. Any payment of
principal of (and premium, if any) or interest required to be made in respect
of a Fixed Rate Note (other than an Amortizing Note), on any day (whether on
an Interest Payment Date or at Maturity) may, if so specified on the face
hereof, be subject to (i) the Following Business Day Convention, in which
case, in the event that any Interest Payment Date or the date of Maturity for
such Note falls on a day that is not a Business Day, the payment of principal
of (and premium, if any) and interest, if any, on this Note will be postponed
to the first following day that is a Business Day, or (ii) such other business
day convention as may be specified on the face hereof, in which case, in the
event that any Interest Payment Date or the date of Maturity for such Note
falls on a day that is not a Business Day, the payment of principal of (and
premium, if any) and interest, if any, on this Note will be postponed or
accelerated, as the case may be, as specified on the face hereof.
Unless otherwise specified on the face hereof, the interest payable on a
Fixed Rate Note that is not an Amortizing Note on each Interest Payment Date
or at Maturity will include accrued interest from and including the Original
Issue Date or from and including the last Fixed Rate Period End Date to which
interest has been paid to, but excluding, such Fixed Rate Period End Date
(each such period, an "Interest Period"). The "Fixed Rate Period End Date"
means, in respect of a Fixed Rate Note that is not an Amortizing Note, each
Interest Payment Date or at Maturity. If the face hereof specifies that each
Fixed Rate Period End Date will be subject to (i) adjustment in accordance
with the Following Business Day Convention, then in the event that any Fixed
Rate Period End Date for this Note falls on a day that is not a Business Day,
such Fixed Rate Period End Date will be postponed to the first following day
that is a Business Day; (ii) adjustment in accordance with such other business
day convention as may be specified on the face hereof, then in the event that
any Fixed Rate Period End Date for this Note falls on a day that is not a
Business Day, such Fixed Rate Period End Date will be adjusted in the manner
specified on the face hereof; or (iii) no adjustment, then in the event that
any Fixed Rate Period End Date for this Note falls on a day that is not a
Business Day, no adjustment will be made, notwithstanding that such Fixed Rate
Period End Date occurs on a day that is not a Business Day.
Unless otherwise specified on the face hereof, the amount of such
interest payable on any Interest Payment Date shall be computed on the basis
of a 360-day year comprised of twelve 30-day months.
2(C). Unless otherwise specified on the face hereof, if this is a
Floating Rate Note, the Company promises to pay interest on the principal
amount, until the principal hereof is paid or duly made available for payment,
at the rate per annum (a) equal to the Initial Interest Rate shown on the face
hereof until the first Interest Reset Date shown on the face hereof following
the Original Issue Date specified on the face hereof and (b) thereafter, at a
rate or rates (the "Base Rate") determined in accordance with the provisions
below under the heading "Determination of CD Rate", "Determination of CMT
Rate", "Determination of Commercial Paper Rate", "Determination of Federal
Funds Rate", "Determination of LIBOR", "Determination of Treasury Rate",
"Determination of Prime Rate", or "Determination of Other Base Rates"
(depending upon whether the Base Rate specified on the face hereof is CD Rate,
CMT Rate, Commercial Paper Rate, Federal Funds Rate, LIBOR, Treasury Rate,
Prime Rate, or some other Base Rate or formula, respectively), in each case
adjusted by the addition or subtraction of the Spread, if any, specified on
the face hereof, and/or by the multiplication by the Spread Multiplier, if
any, specified on the face hereof.
Interest will be calculated daily, weekly, monthly, quarterly,
semiannually, annually or otherwise, as specified on the face hereof under
"Interest Reset Period". Unless otherwise provided on the face hereof,
Interest will be payable commencing with the first Interest Payment Date
specified on the face hereof next succeeding the Original Issue Date, and at
Maturity. Unless otherwise provided on the face hereof, the dates on which
interest will be payable (each an "Interest Payment Date") will be: (i) in the
case of Floating Rate Notes with a daily, weekly or monthly Interest Reset
Period, the third Wednesday of each month or the third Wednesday of March,
June, September and December of each year, as specified on the face hereof;
(ii) in the case of Floating Rate Notes with a quarterly Interest Reset
Period, the third Wednesday of March, June, September and December of each
year; (iii) in the case of Floating Rate Notes with a semi-annual Interest
Reset Period, the third Wednesday of the two months specified on the face
hereof; and (iv) in the case of Floating Rate Notes with an annual Interest
Reset Period, the third Wednesday of the month specified on the face hereof;
subject, in each case, to the business day convention specified on the face
hereof. If the Following Business Day Convention is specified on the face
hereof, in the event that any Interest Payment Date or the date of Maturity
falls on a day that is not a Business Day, the payment of principal (and
premium, if any) hereof and interest, if any, hereon will be postponed to the
first following day that is a Business Day. If the Modified Following
Business Day Convention is specified on the face hereof, in the event that any
Interest Payment Date or the date of Maturity for such Note falls on a day
that is not a Business Day, the payment of principal (and premium, if any)
hereof and interest, if any, hereon will be postponed to the first following
day that is a Business Day unless that day falls in the next calendar month,
in which case that date will be the first preceding day that is a Business
Day. If another business day convention is specified on the face hereof, in
the event that any Interest Payment Date or the date of Maturity for such Note
falls on a day that is not a Business Day, the payment of principal (and
premium, if any) hereof and interest, if any, hereon will be made on such days
as may be specified on the face hereof.
Unless otherwise specified on the face hereof, the interest payable on a
Floating Rate Note on each Interest Payment Date or at Maturity will include
accrued interest from and including the Original Issue Date or from and
including the last Floating Rate Period End Date to which interest has been
paid to, but excluding, such Floating Rate Period End Date (each such period,
an "Interest Period"). The "Floating Rate Period End Date" means, in respect
of a Floating Rate Note, each Interest Payment Date or at Maturity. If the
face hereof specifies that each Floating Rate Period End Date will be subject
to (i) adjustment in accordance with the Following Business Day Convention,
then in the event that any Floating Rate Period End Date for this Note falls
on a day that is not a Business Day, such Floating Rate Period End Date will
be postponed to the first following day that is a Business Day; (ii)
adjustment in accordance with the Modified Following Business Day Convention,
then in the event that any Floating Rate Period End Date for this Note falls
on a day that is not a Business Day, such Floating Rate Period End Date will
be postponed to the first following day that is a Business Day unless that day
falls in the next calendar month, in which case that date will be the first
preceding day that is a Business Day; (iii) adjustment in accordance with such
other business day convention as may be specified on the face hereof, then in
the event that any Floating Rate Period End Date for this Note falls on a day
that is not a Business Day, such Floating Rate Period End Date will be
adjusted in the manner specified on the face hereof; or (iv) no adjustment,
then in the event that any Floating Rate Period End Date for this Note falls
on a day that is not a Business Day, no adjustment will be made,
notwithstanding that such Floating Rate Period End Date occurs on a day that
is not a Business Day.
Such accrued interest will be calculated by multiplying the principal
amount hereof by an accrued interest factor. The accrued interest factor
shall be computed by adding the interest factors calculated for each day in
the Interest Period or from the last date from which accrued interest is being
calculated. Unless otherwise specified on the face hereof, the interest
factor for each such day is computed by dividing the interest rate applicable
to such day by 360, if the Base Rate specified on the face hereof is CD Rate,
Commercial Paper Rate, Federal Funds Rate, LIBOR, or Prime Rate, or by the
actual number of days in the year, if the Base Rate specified on the face
hereof is Treasury Rate or CMT Rate.
Unless otherwise specified on the face hereof, the interest rate in
effect on each day will be (a) if such day is an Interest Reset Date, the
interest rate with respect to the Interest Determination Date determined as of
such Interest Reset Date or (b) if such day is not an Interest Reset Date, the
interest rate with respect to the Interest Determination Date determined as
of the next preceding Interest Reset Date (or, if none, the Initial Interest
Rate), subject in either case to any adjustment by a Spread and/or Spread
Multiplier specified on the face hereof; provided, however, that the interest
rate in effect from the Original Issue Date to the first Interest Reset Date
will be the Initial Interest Rate.
Notwithstanding the foregoing, if this is a Floating Rate Note, the
interest rate hereon shall not accrue during any Interest Period at a rate
which is greater than the Maximum Interest Rate, if any, or less than the
Minimum Interest Rate, if any, shown on the face hereof. In addition, the
interest rate hereon shall in no event be higher than the maximum rate, if
any, permitted by applicable law, including, without limitation, the law of
the State of New York and United States law of general application. The
Maximum Interest Rate, if any, and Minimum Interest Rate, if any, specified on
the face hereof are, in each case, expressed as a rate per annum on a simple
interest basis.
If this is a Floating Rate Note, the interest rate on this Note will be
reset daily, weekly, monthly, quarterly, semi-annually, annually or otherwise
(such period being the "Interest Reset Period"), as specified on the face
hereof. Unless otherwise specified on the face hereof, the "Interest Reset
Dates" will be: (i) if the Interest Reset Period is daily, each Business Day;
(ii) if the Interest Reset Period is weekly, Wednesday of each week, except
that if the Base Rate specified on the face hereof is the Treasury Rate,
Tuesday of each week; (iii) if the Interest Reset Period is monthly, the third
Wednesday of each month; (iv) if the Interest Reset Period is quarterly, the
third Wednesday of March, June, September and December of each year; (v) if
the Interest Reset Period is semi-annually, the third Wednesday of the two
months specified on the face hereof; and (vi) if the Interest Reset Period is
annually, the third Wednesday of the month of each year specified on the face
hereof; provided, however, that the interest rate in effect from the Original
Issue Date to the first Interest Reset Date will be the Initial Interest Rate.
If any Interest Reset Date would otherwise be a day that is not a Business
Day, such Interest Reset Date shall be postponed to the next day that is a
Business Day, except that (a) if the Base Rate specified on the face hereof is
LIBOR and such next Business Day is in the next succeeding calendar month,
such Interest Reset Date shall be the immediately preceding Business Day or
(b) if the Base Rate specified on the face hereof is Treasury Rate and the
Interest Reset Date falls on a date which is an auction date for Treasury
bills (as defined under "Determination of Treasury Rate" below), the Interest
Reset Date shall be the following day that is a Business Day.
The interest rate applicable to each Interest Reset Period commencing on
the Interest Reset Date with respect to such Interest Reset Period will be the
rate determined as of the applicable Interest Determination Date on or prior
to the Calculation Date (as defined below). Unless otherwise specified on the
face hereof, the Interest Determination Date pertaining to an Interest Reset
Date will be (i) if the Base Rate specified on the face hereof is CD Rate, CMT
Rate, Commercial Paper Rate, Federal Funds Rate, or Prime Rate, the second
Business Day next preceding such Interest Reset Date, (ii) if the Base Rate
specified on the face hereof is LIBOR, the second London Banking Day next
preceding such Interest Reset Date (iii) if the Base Rate specified on the
face hereof is Treasury Rate, the day of the week in which such Interest Reset
Date falls on which Treasury bills (as defined under "Determination of
Treasury Rate" below) of the Index Maturity specified on the face hereof are
auctioned. Treasury bills are normally 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 a result of a legal holiday, an auction is so
held on the preceding Friday, such Friday will be the Interest Determination
Date pertaining to the Interest Reset Date occurring in the next succeeding
week. If an auction date shall fall on any day that would otherwise be an
Interest Reset Date for a Floating Rate Note whose Base Rate is the Treasury
Rate, then such Interest Reset Date shall instead be the first Business Day
immediately following such auction date.
The Company will calculate, or will from time to time appoint and enter
into an agreement with an agent to calculate (the Company or such agent being
the "Calculation Agent"), the interest rates on Floating Rate Notes (including
this Note if this is a Floating Rate Note). Initially, Citibank, N.A. shall
be the Calculation Agent. The Calculation Agent shall calculate the interest
rate hereon in accordance with the foregoing and will confirm in writing such
calculation to the Trustee and any Paying Agent promptly after each such
determination. Neither the Trustee nor any Paying Agent shall be responsible
for any such calculation. At the request of the Holder hereof, the
Calculation Agent will provide the interest rate then in effect and, if
determined, the interest rate that will become effective on the next Interest
Reset Date. All determinations of interest rates by the Calculation Agent
shall, in the absence of manifest error, be conclusive for all purposes and
binding on the Holder hereof. Unless otherwise specified on the face hereof,
the "Calculation Date", if applicable, pertaining to an 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 Business Day, the next succeeding
Business Day, or (ii) the Business Day preceding the applicable Interest
Payment Date or Maturity, as the case may be.
Subject to applicable provisions of law and except as specified herein,
on each Interest Reset Date the rate of interest hereon, if this is a Floating
Rate Note, shall be the rate determined in accordance with the provisions of
the applicable heading below, adjusted by the addition or subtraction of the
Spread, if any, specified on the face hereof, and/or by the multiplication by
the Spread Multiplier, if any, specified on the face hereof.
Determination of CD Rate
- ------------------------
Unless otherwise specified on the face hereof, if the Base Rate specified
on the face hereof is CD Rate, the interest rate for any Interest
Determination Date shall equal (a) the rate on such Interest Determination
Date for negotiable certificates of deposit having the Index Maturity
specified on the face hereof 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 "CDs (Secondary Market)".
The following procedures will be followed if the foregoing rate cannot be
determined as described above:
(1) if such rate is not so published by 9:00 a.m., New York City
time, on the Calculation Date pertaining to such Interest Determination Date,
then the CD Rate will be the rate on such Interest Determination Date set
forth in H.15 Daily Update (as defined below) for such date in respect of
certificates of deposit having the Index Maturity specified in the face hereof
under the caption "CDs (secondary market)". ""H.15 Daily Update" means the
daily update of H.15(519), available through the world wide web site of the
Board of Governors of the Federal Reserve System at
http://www.bog.frb.fed.us/releases/h15/update, or any successor site or
publication.
(2) If such rate is not yet published in either H.15(519) or the
H.15 Daily Update by 3:00 p.m., New York City time, on such Calculation Date,
then the Calculation Agent will determine the CD Rate to be the arithmetic
mean of the secondary market offered rates as of 10:00 a.m., New York City
time, on such Interest Determination Date, of three leading nonbank dealers in
negotiable U.S. dollar certifcates of deposit in New York City selected by the
Calculation Agent (after consultation with Xerox) for negotiable certifcates
of deposit of major United States money center banks of the highest credit
standing in the market for negotiable certifcates of deposit with a remaining
maturity closest to the Index Maturity specified on the face hereof in the
denomination of U.S.$5,000,000.
(3) If the dealers selected by the Calculation Agent are not quoting
as set forth in clause (2) above, the CD Rate will remain the CD Rate then in
effect on such Interest Determination Date.
CD Rate Notes, like other Notes, are not deposit obligations of a bank
and are not insured by the Federal Deposit Insurance Corporation.
Determination of CMT Rate
- -------------------------
Unless otherwise specified on the face hereof, if the Base Rate specified
on the face hereof is CMT Rate, the interest rate for any Interest
Determination 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.," under the column for the Designated CMT Maturity Index (as defined
below) for (i) if the Designated CMT Telerate Page is 7051, the rate on such
Interest Determination Date and (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 in which the related Interest Determination
Date occurs.
The following procedures will be followed if the foregoing rate cannot be
determined as described above:
(1) If such rate is no longer displayed on the relevant page, or if
not displayed by 3:00 p.m., New York City time, on the related Calculation
Date, then the CMT Rate for such Interest Determination Date will be such
Treasury Constant Maturity rate for the Designated CMT Maturity Index as
published in the relevant H.15(519).
(2) If such rate is no longer published, or if not published by 3:00
p.m., New York City time, on the related Calculation Date, then the CMT Rate
for such 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 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).
(3) If such information is not provided by 3:00 p.m., New York City
time, on the related Calculation Date, then the Calculation Agent will
determine the CMT Rate for such Interest Determination Date to 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 the Interest
Determination Date reported, according to their written records, by three
leading primary United States government securities dealers (each, a
"Reference Dealer") in The City of New York selected by the Calculation Agent
as described in the following sentence. The Calculation Agent will select five
Reference Dealers and will eliminate 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 such Designated CMT Maturity Index
minus one year.
(4) If the Calculation Agent cannot obtain three such Treasury note
quotations, the Calculation Agent will determine the CMT Rate for such
Interest Determination Date to 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 the Interest Determination Date of three Reference
Dealers in The City of New York (selected using the same method described in
clause (3) above), 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.
(5) If three or four (and not five) of such 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
such quotes will be eliminated.
(6) If fewer than three Reference Dealers selected by the
Calculation Agent are quoting as described herein, the CMT Rate will be the
CMT Rate in effect on such Interest Determination Date.
If two Treasury notes with an original maturity as described in clause
(4) above, have remaining terms to maturity equally close to the Designated
CMT Maturity Index, the quotes for the CMT Rate Note with the shorter
remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Bridge Telerate,
Inc. (or any successor service) on the page designated on the face hereof (or
any other pages as may replace such page on that service for the purposes of
displaying Treasury Constant Maturities as reported in H.15(519)), for the
purpose of displaying Treasury Constant Maturities as reported in H.15(519).
If no such page is specified on the face hereof, the Designated CMT Telerate
Page shall be 7052, for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity of
the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20, or 30 years)
specified on the face hereof with respect to which the CMT Rate will be
calculated. If no such maturity is specified on the face hereof, the
Designated CMT Maturity Index shall be 2 years.
Determination of Commercial Paper Rate
- --------------------------------------
Unless otherwise specified on the face hereof, if the Base Rate specified
on the face hereof is Commercial Paper Rate, the interest rate for any
Interest Determination Date shall equal the Money Market Yield (as defined
below) on such Interest Determination Date of the rate for commercial paper
having the Index Maturity specified on the face hereof, as such rate is
published in H.15(519) under the heading "Commercial Paper--Nonfinancial".
The following procedures will be followed if the foregoing rate cannot be
determined as described above:
(1) If the forgoing rate is not published by 9:00 a.m., New York
City time, on the related Calculation Date, then the Commercial Paper Rate
will be the Money Market Yield on such Interest Determination Date of the rate
for commercial paper of the Index Maturity specified on the face hereof as
published in H.15 Daily Update under the heading "Commercial Paper--
Nonfinancial".
(2) If by 3:00 p.m., New York City time, on the related Calculation
Date such rate is not yet published in either H.15(519) or H.15 Daily Update,
then the Calculation Agent will determine the Commercial Paper Rate to be the
Money Market Yield of the arithmetic mean of the offered rates as of 11:00
a.m., New York City time, on such Interest Determination Date of three leading
dealers of commercial paper in New York City selected by the Calculation Agent
(after consultation with Xerox) for commercial paper of the Index Maturity
specified on the face hereof placed for an industrial issuer whose bond rating
is "AA", or the equivalent, from a nationally recognized rating agency.
(3) If the dealers selected by the Calculation Agent are not quoting
as mentioned above, the Commercial Paper Rate with respect to such Interest
Determination Date will remain the Commercial Paper Rate then in effect on
such Interest Determination Date.
"Money Market Yield" means a yield calculated in accordance with the
following formula:
Money Market Yield = D X 360 X 100
----------------
360 - (D X M)
where "D" refers to the applicable 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 interest is being calculated.
Determination of Federal Funds Rate
- -----------------------------------
Unless otherwise specified on the face hereof, if the Base Rate specified
on the face hereof is Federal Funds Rate, the interest rate for any Interest
Determination date shall equal the rate on such Interest Determination Date
for Federal Funds as published in H.15(519) under the heading "Federal Funds
(Effective)".
The following procedures will be followed if the forgoing rate cannot be
determined as described above:
(1)If the above rate is not so published by 9:00 a.m., New York City
time, on the Calculation Date pertaining to such Interest Determination Date,
then the Federal Funds Rate will be the rate on such Interest Determination
Date as published in H.15 Daily Update under the heading "Federal
Funds/Effective Rate".
(2) If such rate is not yet published in either H.15(519) or H.15
Daily Update by 3:00 p.m., New York City time, on such Calculation Date , the
Calculation Agent will determine the Federal Funds Rate to be the arithmetic
mean of the rates 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 (after consultation with Xerox) as of 9:00
a.m., New York City time, on such Interest Determination Date.
(3) If the brokers selected as aforesaid by the Calculation Agent
are not quoting as mentioned above, the Federal Funds Rate with respect to
such Interest Determination Date shall equal the interest rate then in effect
on such Interest Determination Date.
Determination of LIBOR
- ----------------------
Unless otherwise specified on the face hereof, if the Base Rate specified
on the face hereof is LIBOR or the interest rate is to be determined with
reference to LIBOR, LIBOR will be determined by the Calculation Agent in
accordance with the following provisions. With respect to an Interest
Determination Date:
(i) If "LIBOR Reuters" is specified on the face hereof as the method for
calculating LIBOR, LIBOR will be the arithmetic mean of the offered rates
(unless the specified 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 on the
face hereof, 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 specified on the face hereof as of 11:00 a.m., London
time, on such Interest Determination Date.
(ii) If "LIBOR Telerate" is specified on the face hereof or if neither
LIBOR Reuters nor LIBOR Telerate is specified on the face hereof as the method
of calculating LIBOR, LIBOR will be the rate for deposits in the Index
Currency having the Index Maturity specified on the face hereof, commencing on
the Interest Reset Date, that appears on the Designated LIBOR Page specified
on the face hereof as of 11:00 a.m., London time, on such Interest
Determination Date.
If fewer than two such offered rates appear, or if no such rate appears,
as applicable, LIBOR in respect of the related Interest Determination Date
will be determined as follows:
(1) The Calculation Agent will request the principal London offices
of each of four major reference banks in the London interbank market, as
selected by the Calculation Agent (after consultation with Xerox), to provide
the Calculation Agent with its offered quotation for deposits in the Index
Currency for the period of the Index Maturity specified on the face hereof,
commencing on the Interest Reset Date to prime banks in the London interbank
market at approximately 11:00 a.m., London time, on such 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 Interest
Determination Date will be the arithmetic mean of such quotations.
(2) If fewer than two quotations are provided, LIBOR determined on
such Interest Determination Date will be the arithmetic mean of the rates
quoted at approximately 11:00 a.m., or such other time specified on the face
hereof, in the applicable Principal Financial Center (as defined below), on
such Interest Determination Date by three major banks in such Principal
Financial Center selected by the Calculation Agent (after consultation with
Xerox) for loans in the Index Currency to leading European banks, having the
Index Maturity specified on the face hereof and in a principal amount that is
representative for a single transaction in such Index Currency in such market
at such time
(3) If the banks so selected by the Calculation Agent are not
quoting as mentioned above, LIBOR determined on such Interest Determination
Date will be LIBOR in effect on such Interest Determination Date.
"Index Currency" means the currency (including composite currencies)
specified on the face hereof as the currency for which LIBOR shall be
calculated. If no such currency is specified on the face hereof, the Index
Currency shall be U.S. dollars.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified on the
face hereof as the method for calculating LIBOR, the display on the Reuters
Monitor Money Rates Service (or any successor service) for the purpose of
displaying the London interbank rates of major banks for the applicable Index
Currency, or (b) if "LIBOR Telerate" is specified on the face hereof, or if
neither "LIBOR Reuters" nor "LIBOR Telerate" is specified on the face hereof,
as the method for calculating LIBOR, the display on the Bridge Telerate, Inc.
(or any successor service) for the purpose of displaying the London interbank
rates of major banks for the applicable Index Currency.
"Principal Financial Center" means (i) the capital city of the country
issuing the Specified Currency or (ii) the capital city of the country to
which the Index Currency relates, as applicable, except, in the case of (i) or
(ii) above, that with respect to U.S. dollars, Australian dollars, Canadian
dollars, Deutsche marks, Dutch guilders, Portuguese escudos, South African
rand and Swiss francs, the Principal Financial Center shall be The City of New
York, Sydney and (solely in the case of the Specified Currency) Melbourne,
Toronto, Frankfurt, Amsterdam, London (solely in the case of the LIBOR Index
Currency), Johannesburg and Zurich, respectively.
Determination of Treasury Rate
- ------------------------------
Unless otherwise specified on the face hereof, if the Base Rate specified
on the face hereof is Treasury Rate, the interest rate for any Interest
Determination Date shall equal the rate for the auction held on such Interest
Determination Date of direct obligations of the United States ("Treasury
bills") having the Index Maturity specified on the face hereof as that rate
appears on either Telerate Page 56 or Page 57 under the heading "AVGE INVEST
YIELD". "Telerate Page 56" and "Telerate Page 57" mean the displays
designated on Bridge Telerate, Inc. as Page 56 or Page 57, or any page that
replaces either Page 56 or Page 57 on that service, or another service that is
nominated as the information vendor, for the purpose of displaying Treasury
bill auction rates.
The following procedures will be followed if the foregoing rate cannot be
determined as described above:
(1) If the above rate is not so published by 9:00 a.m., New York
City time, on the Calculation Date pertaining to such Interest Determination
Date, the Treasury Rate will be the auction average rate on such Interest
Determination Date (expressed as a bond equivalent on the basis of a year of
365 or 366 days, as applicable, and applied on a daily basis) as otherwise
announced by the United States Department of the Treasury. Treasury bills are
usually sold at auction on Monday of each week unless that day is a legal
holiday. If Monday is a legal holiday, the auction is usually held on the
following Tuesday, but the auction may be held on the preceding Friday.
(2) In the event that the results of the auction of Treasury bills
having the Index Maturity specified on the face hereof are not published or
announced as provided above by 3:00 p.m., New York City time, on such
Calculation Date or if no such auction is held on such Interest Determination
Date, the Treasury Rate will be the Bond Equivalent Yield of the rate set
forth in H.15(519) for that day opposite the Index Maturity under the caption
"U.S. Government Securities/Treasury Bills/Secondary Market".
(3) If the above rate is not published in H.15(519) on such
Calculation Date, the rate for that day will be the rate set forth in H.15
Daily Update, or another recognized electronic source used for the purpose of
displaying such rate, for that day in respect of the Index Maturity under the
caption "U.S. Government Securities/Treasury Bills/Secondary Market".
(4) If the above rate is not published in H.15(519), H.15 Daily
Update or another recognized source, then the Calculation Agent will determine
the Treasury Rate to 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 Interest Determination
Date, of three leading primary United States government securities dealers
selected by the Calculation Agent (after consultation with Xerox) for the
issue of Treasury bills with a remaining maturity closest to the Index
Maturity specified on the face hereof.
(5) If the dealers selected as aforesaid by the Calculation Agent
are not quoting bid rates as mentioned above, the Treasury Rate for such
Interest Determination Date shall equal the Treasury Rate then in effect on
such Interest Determination Date.
Determination of Prime Rate
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Unless otherwise specified on the face hereof, if the Base Rate specified
on the face hereof is Prime Rate, the interest rate for any Interest
Determination Date shall equal the rate on such Interest Determination Date as
published in H.15(519) under the heading "Bank Prime Loan".
The following procedures will be followed if the foregoing rate cannot be
determined as described above:
(1) If the rate is not published by 9:00 a.m., New York City time,
on the related Calculation Date, the Prime Rate will be the rate on such
Interest Determination Date as published in H.15 Daily Update opposite the
caption "Bank Prime Loan".
(2) If the rate is not published prior to 3:00 p.m., New York City
time, on such Calculation Date, in either H.15 (519) or H.15 Daily Update,
then the Calculation Agent will determine the Prime Rate to be the arithmetic
mean of the rates of interest publicly announced by each bank named on the
"Reuters Screen USPRIME1 Page" (as defined below) as that bank's prime rate or
base lending rate as in effect for such Interest Determination Date.
(3) If fewer than four rates but more than one rate appear on the
Reuters Screen USPRIME1 Page for such Interest Determination Date, the
Calculation Agent will determine the Prime Rate to be the arithmetic mean of
the prime rates quoted on the basis of the actual number of days in the year
divided by 360 as of the close of business on such Interest Determination Date
by at least two major money center banks in New York City selected by the
Calculation Agent (after consultation with Xerox).
(4) If fewer than two such rates appear on the Reuters Screen
USPRIME1 Page, the Calculation Agent will determine the Prime Rate on the
basis of the rates furnished in New York City by three substitute banks or
trust companies organized and doing business under the laws of the United
States, or any State thereof, in each case having total equity capital of at
least $500,000,000 and being subject to supervision or examination by Federal
or State authority, selected by the Calculation Agent (after consultation with
Xerox) to provide a rate or rates.
(5) If the banks selected are not quoting as mentioned above, the
Prime Rate will remain the Prime Rate then in effect on such Interest
Determination Date.
"Reuters Screen USPRIME1 Page" means the display designated as page
"USPRIME1" on the Reuters Monitor Money Rates Service (or another page that
may replace the USPRIME1 page on that service for the purpose of displaying
prime rates or base lending rates of major United States banks).
Determination of Other Base Rates
- ---------------------------------
If the Base Rate specified on the face hereof is none of the foregoing,
the method of calculating such Base Rate for any Interest Determination Date
will be as provided on the face hereof.
2(D). If this is a Currency Indexed Note, the principal amount payable
at Maturity will be determined by reference to the Denominated Currency and
the Indexed Currency shown on the face hereof, or as determined in such other
manner as may be specified on the face hereof. Unless otherwise specified on
the face hereof, the Holder of a Currency Indexed Note will be entitled to
receive a principal amount in respect of such Note (i) exceeding the Face
Amount shown on the face hereof if, at Maturity, the rate at which the
Denominated Currency can be exchanged for the Indexed Currency is greater than
the rate of such exchange designated as the Base Exchange Rate, expressed in
units of the Indexed Currency per one unit of the Denominated Currency, shown
on the face hereof (the "Base Exchange Rate"), or (ii) less than such Face
Amount if, at Maturity, the rate at which such Denominated Currency can be
exchanged for such Indexed Currency is less than such Base Exchange Rate.
Unless otherwise specified on the face hereof, the Company will pay principal
of a Currency Indexed Note in the Denominated Currency at Maturity in an
amount equal to the Face Amount, plus or minus an amount of the Denominated
Currency determined by the Exchange Rate Agent by reference to the difference
between the Base Exchange Rate and the rate at which the Denominated Currency
can be exchanged for the Indexed Currency as determined on the second Exchange
Rate Day (as defined in this Section 2(D) below) (such second Exchange Rate
Day is hereafter referred to as the "Exchange Rate Date") prior to Maturity by
the Exchange Rate Agent based on the indicative quotation, selected by such
Exchange Rate Agent at approximately 11:00 a.m. New York City time on such
Exchange Rate Date, for the Indexed Currency (spot bid quotation for the
Denominated Currency) which will yield the largest number of units of the
Indexed Currency per one unit of the Denominated Currency, for an amount of
Indexed Currency equal to the Face Amount multiplied by the Base Exchange Rate
with the Denominated Currency for settlement at Maturity (such rate of
exchange, as so determined and expressed in units of the Indexed Currency per
one unit of the Denominated Currency, is hereafter referred to as the "Spot
Rate"). Unless otherwise provided on the face hereof, such selection shall be
made from among the quotations appearing on the display "page" within the
Reuters or Telerate Monitor Foreign Exchange Service, as may be agreed to by
the Company and such Exchange Rate Agent (or, if such display "page" is not
available or such Indexed Currency or Denominated Currency is a composite
currency for which separate current composite currency quotations are not
available, such other comparable display or other comparable manner of
obtaining quotations as may be agreed to by the Company and such Exchange Rate
Agent), used to determine the Spot Rate. The principal amount hereof
determined by the Exchange Rate Agent to be payable at Maturity will be
payable to the Holder hereof in the manner set forth herein. In the absence
of manifest error, the determination by the Exchange Rate Agent of the Spot
Rate and the principal amount of Currency Indexed Notes payable at Maturity
thereof shall be final and binding on the Company and the Holders of such
Currency Indexed Notes. The formula to be used by the Exchange Rate Agent to
determine the principal amount of this Currency Indexed Note payable at
Maturity is specified on the face hereof.
As used herein, "Exchange Rate Day" means any day (a) which is a Business
Day in The City of New York and (b) (i) if the Denominated Currency or Indexed
Currency is any currency or composite currency other than the U.S. dollar or
the euro, a Business Day in the principal financial center of the country of
such Denominated Currency or Indexed Currency or (ii) if the Denominated
Currency or Indexed Currency is the euro, a Business Day with respect to the
euro.
Unless otherwise specified on the face hereof, if this is a Currency
Indexed Note, the Company promises to pay interest in the Denominated Currency
based on the Face Amount shown on the face hereof and at the rate and times
specified on the face hereof.
2(E). If this is an Indexed Note other than a Currency Indexed Note, the
principal amount (and premium, if any) hereof payable at Maturity or the
interest hereon, or both, may be determined by reference to the price of one
or more specified securities or commodities, to one or more securities or
commodities exchange indices or other indices or by other similar methods or
formulae, all as set forth on the face hereof. The method by which the amount
of interest payable and the amount of principal payable at Maturity will be
determined is set forth under the heading "Reference Indices or Formulae" on
the face hereof. Unless otherwise specified on the face hereof, (a) for the
purpose of determining whether Holders of the requisite principal amount of
Outstanding Securities under the Indenture have made a demand or given a
notice or waiver or taken any other action, the outstanding principal amount
hereof will be deemed to be the face amount hereof, and (b) in the event of an
acceleration of Maturity of such Note, the principal amount payable to the
Holder hereof upon acceleration will be the principal amount determined by
reference to the formula by which the principal amount hereof would be
determined on the Maturity Date, as if the date of acceleration were the
Maturity Date.
3. The Authorized Denominations of Notes denominated in U.S. dollars or,
if applicable, the Authorized Denominations of Registered Notes denominated in
a Foreign Currency, and the Integral Multiples thereof in excess of such
Authorized Denominations, are as set forth on the face hereof.
4. Each Note will be issued initially as either a Book-Entry Note or a
Certificated Note in fully registered form without coupons. Book-Entry Notes
will not be exchangeable for Certificated Notes and will not otherwise be
issuable as Certificated Notes.
5. Unless otherwise provided on the face hereof, payments of interest on
this Note and, if this is an Amortizing Note, principal of this Note, in U.S.
dollars (in each case, other than interest on this Note or, if this is an
Amortizing Note, principal of this Note, payable at Maturity) will be made by
check (from an account at a bank outside the United States if such interest or
principal is payable in a currency other than U.S. dollars) mailed to the
address of the Person entitled thereto as such address shall appear on the
Security Register on the applicable Regular Record Date (which, in the case of
Global Securities representing Book-Entry Notes, will be a nominee of the
Depositary or such other depositary as may be specified on the face hereof);
provided, however, that if this Note is issued between a Regular Record Date
and the initial Interest Payment Date relating to such Regular Record Date,
interest for the period beginning on the Original Issue Date shown on the face
hereof and ending on such initial Interest Payment Date shall be paid on the
next succeeding Interest Payment Date to the Registered Holder on the related
Regular Record Date; and provided, further, that, if the Holder hereof is the
Holder of U.S. $10,000,000 or more (or the equivalent thereof in a Foreign
Currency) in aggregate principal amount of Notes of like tenor and terms, such
payments will be made by wire transfer of immediately available funds, but
only if appropriate wire instructions have been received in writing by the
Paying Agent on or prior to the applicable Regular Record Date.
Simultaneously with any election by the Holder hereof to receive payments in
respect hereof in the Foreign Currency, such Holder shall provide appropriate
wire transfer instructions to the Paying Agent, and all such payments will be
made by wire transfer of immediately available funds to an account maintained
by the payee with a bank located outside the United States. Unless otherwise
provided on the face hereof, the principal hereof and any premium and interest
hereon payable at Maturity will be paid to the Holder in immediately available
funds (payable to an account maintained by the payee with a bank located
outside the United States if payable in a currency other than U.S. dollars)
upon surrender of this Note at the Corporate Trust Office of the Paying Agent
located in the Borough of Manhattan, The City of New York (or at such other
location as may be specified on the face hereof), provided, that this Note is
presented to the Paying Agent in time for the Paying Agent to make such
payments in funds in accordance with its customary procedures. The Company
will pay any administrative costs imposed by banks in connection with making
payments in immediately available funds, but any tax, assessment or
governmental charge imposed upon payments will be borne by the Holder hereof.
6. The principal hereof and any premium and interest hereon are payable
by the Company in the Specified Currency specified on the face hereof. If the
Specified Currency shown above is a Foreign Currency, the Exchange Rate Agent
will arrange to convert all payments in respect hereof into U.S. dollars in
the manner described below; provided, however, that the Holder hereof may, if
so indicated on the face hereof and subject to the conditions set forth in the
third and fourth paragraphs and the last sentence of this paragraph of this
Section 6, elect to receive all payments in respect hereof in such Foreign
Currency by delivery of written notice to the Paying Agent in the City of New
York, which written request must be received by the Paying Agent on or prior
to the applicable record date or at least fifteen calendar days prior to
Maturity, as the case may be. Such election will remain in effect unless and
until changed by written notice to the Paying Agent in The City of New York,
which written notice of any such change must be received by the Paying Agent
on or prior to the applicable record date or at least fifteen calendar days
prior to Maturity, as the case may be. If the Company determines that such
Foreign Currency is not available for making payments in respect hereof due to
the conditions set forth in the third and fourth paragraphs of this Section 6,
then the Holder hereof may not so elect to receive payments in such Foreign
Currency, and any such outstanding election shall be automatically suspended
and payments in respect hereof shall be made in U.S. dollars as described
below, until the Company determines that such Foreign currency is again
available for making such payments.
Unless otherwise specified on the face hereof, if the Specified Currency
is a Foreign Currency, unless the Holder of this Note has elected otherwise,
the amount of any U.S. dollar payment to be made in respect hereof will be
determined by the Exchange Rate Agent based on the highest firm bid quotation
received by such Exchange Rate Agent at approximately 11:00 a.m., New York
City time, on the second Business Day preceding the applicable payment date,
from three recognized foreign exchange dealers selected by the Exchange Rate
Agent and approved by the Company (one of which may be the Exchange Rate
Agent) for the purchase by the quoting dealer, for settlement on such payment
date, of the aggregate amount of the Foreign Currency payable on such payment
date in respect of all Notes denominated in such Foreign Currency on which
payments are to be made in U.S. dollars. If three such bid quotations are not
available, payments will be made in the Foreign Currency which will yield the
largest number of U.S. dollars when the Company is receiving U.S. dollars in
lieu of the Foreign Currency and will require the smallest number of U.S.
dollars when the Company is paying U.S. dollars in lieu of the Foreign
Currency. Unless otherwise provided on the face hereof, such selection shall
be made from among the quotations appearing on the display "page" within the
Reuters or Telerate Monitor Foreign Exchange Service, as may be agreed to by
the Company and such Exchange Rate Agent (or, if such display "page" is not
available or such Foreign Currency is a composite currency for which separate
current composite currency quotations are not available, such other comparable
display or other comparable manner of obtaining quotations as may be agreed to
by the Company and such Exchange Rate Agent), used to determine the U.S.
dollar equivalent of such Foreign Currency. If no such indicative quotations
are available, then such payment will be made in such Foreign Currency, unless
such Foreign Currency is unavailable due to the conditions set forth in the
third and fourth paragraphs of this Section 6, in which case payment may be
made as described in the next paragraph. All currency exchange costs, if any,
will be borne by the Company, unless the Holder hereof has made the election
specified on the face hereof to receive payments in the Foreign Currency. In
such case, each electing Holder shall bear its pro-rata portion of currency
exchange costs, if any, by deductions from such payments due to such Holder.
If this Note is denominated in a Foreign Currency, and any payment in
respect hereof is required to be made in a Foreign Currency and such Foreign
Currency is unavailable due to the imposition of exchange controls or other
circumstances beyond the Company's control or is no longer used by the
government of the country issuing such Foreign Currency or for the settlement
of transactions by public institutions of or within the international banking
community, then such payment shall be made in U.S. dollars. The amount so
payable on any date in such Foreign Currency shall be converted into U.S.
dollars at a rate determined by the Exchange Rate Agent on the basis of the
noon buying rate in The City of New York for cable transfer in the Foreign
Currency as certified for customs purposes by the Federal Reserve Bank of New
York (the "Market Exchange Rate") for such Foreign Currency on the second
Business Day prior to such payment date, or as otherwise indicated on the face
hereof. In the event such Market Exchange Rate is not then available, the
Company will be entitled to make payments in U.S. dollars (i) if such Foreign
Currency is not a composite currency, on the basis of the most recently
available Market Exchange Rate for such Foreign Currency or (ii) if such
Foreign Currency is a composite currency, in an amount determined by the
Exchange Rate Agent to be the sum of the results obtained by multiplying the
number of units of each component currency of such composite currency, as of
the most recent date on which such composite currency was used, by the Market
Exchange Rate for such component currency on the second Business Day prior to
such payment date (or, if such Market Exchange Rate is not then available, by
the most recently available Market Exchange Rate for such component currency).
Any payment under such circumstances in U.S. dollars will not constitute a
default or an Event of Default under the Indenture.
All determinations referred to above of the Exchange Rate Agent shall be
at its sole discretion (except to the extent expressly provided herein that
any determination is subject to approval by the Company) and, in the absence
of manifest error, shall be conclusive for all purposes and binding upon the
Holders of the Notes and the Trustee, and the Exchange Rate Agent shall have
no liability therefor.
7. If so specified on the face hereof, this Note may be redeemed at the
option of the Company in whole or from time to time in part on the Redemption
Date or Dates shown on the face hereof (which date or dates shall be on or
after the Initial Redemption Date and prior to the Maturity Date), upon not
less than 30 nor more than 60 days' prior notice given as provided in the
Indenture, at the redemption price or prices shown on the face hereof,
together with accrued interest, if any, to the Redemption Date. If less than
all of the Outstanding Notes of different tenor and terms are to be redeemed,
the Company in its sole and absolute discretion shall select the tenor and
terms of the Notes to be redeemed. If less than all the Outstanding Notes of
like tenor and terms are to be redeemed, the particular Notes to be redeemed
shall be selected by the Trustee pro rata or by lot or by such method as the
Trustee shall deem fair and appropriate (so long as such method is not
prohibited by the rules of any exchange on which such Notes may be then
listed).
If so specified on the face hereof, this Note may be repaid at the option
of the Holder hereof, in whole or from time to time in part, on the Repayment
Date or Dates shown on the face hereof (which date or dates shall be on or
after the Initial Repayment Date but prior to the Maturity Date) at the price
or prices shown on the face hereof, together with accrued interest, if any, to
the Repayment Date. Unless otherwise specified on the face hereof, in order
for this Note to be so repaid by the Holder hereof on any Repayment Date, the
Trustee or any other Person designated by the Company for such purpose must
receive at least 15 but not more than 30 days prior to such Repayment Date,
(i) if this Note is a Certificated Note, such Note with the form entitled
"Option to Elect Repayment" on the reverse of this Note duly completed or (ii)
if this Note is a Book-Entry Note, such notices as are specified on the face
hereof. Unless otherwise specified on the face hereof, the repayment option
may be exercised by the Holder of this Note for less than the aggregate
principal amount hereof then outstanding, provided that the principal amount
hereof remaining outstanding after such repayment is an Authorized
Denomination or any Integral Multiple in excess thereof. Unless otherwise
specified on the face hereof, exercise of the repayment option by the Holder
of this Note will be irrevocable.
8. The Company may at any time and from time to time purchase Notes at
any price in the open market or otherwise. Notes so purchased by the Company
may, at its discretion, be held, resold or surrendered to the Trustee for
cancellation.
9. Unless otherwise specified on the face hereof, this Note will not be
subject to any sinking fund.
10. If this Note is an Original Issue Discount Security, the amount
payable in the event of redemption or acceleration of Maturity, in lieu of the
principal amount due at the Stated Maturity hereof, shall be the Amortized
Face Amount of this Note as of the Redemption Date or the date of such
acceleration. The "Amortized Face Amount" of this Note shall be the amount
equal to (a) the Issue Price (as set forth on the face hereof) plus (b) that
portion of the difference between the Issue Price and the principal amount
hereof that has accrued at the Yield to Maturity (as set forth on the face
hereof) (computed in accordance with generally accepted United States bond
yield computation principles) at the date as of which the Amortized Face
Amount is calculated, but in no event shall the Amortized Face Amount of this
Note exceed its stated principal amount.
11. If so specified on the face hereof, the Maturity Date of this Note
may be extended at the option of the Company, at such time or times as set
forth on the face hereof, for one or more periods (each an "Extension Period")
up to but not beyond the date ("Final Maturity Date") specified on the face
hereof, by notifying the Trustee at least 50 but not more than 60 days prior
to the Maturity Date of this Note in effect immediately prior to the exercise
of such option (the "Prior Maturity Date"). Not later than 10 days after
receipt of such notice from the Company but in any event not later than 40
days prior to the Prior Maturity Date, the Trustee will mail to the Holder of
this Note a notice (the "Extension Notice") relating to such Extension Period,
setting forth (i) the election of the Company to extend the Prior Maturity
Date, (ii) the new Maturity Date, (iii) in the case of a Fixed Rate Note, the
interest rate to be applicable to the Extension Period or, in the case of a
Floating Rate Note, the Spread or Spread Multiplier to be applicable to the
Extension Period, and (iv) the provisions, if any, for redemption by the
Company or repayment to the Holder, or both, during the Extension Period,
including the date or dates on which or the period or periods during which and
the price or prices at which such redemption or repayment may occur during the
Extension Period. Upon the transmittal by the Trustee of an Extension Notice
to the Holder of this Note, the Prior Maturity Date shall be extended
automatically, and, except as modified by the Extension Notice and as
described in the next paragraph, this Note will have the same terms as prior
to the transmittal of such Extension Notice.
Notwithstanding the foregoing paragraph, not later than 20 days prior to
the Prior Maturity Date of this Note, the Company may, at its option, revoke
the interest rate, in the case of a Fixed Rate Note, or the Spread and/or
Spread Multiplier, in the case of a Floating Rate Note, provided for in the
Extension Notice and establish an interest rate, in the case of a Fixed Rate
Note, or a Spread and/or Spread Multiplier, in the case of a Floating Rate
Note, that is higher than the interest rate, Spread and/or Spread Multiplier,
as the case may be, provided for in the Extension Notice, for the Extension
Period commencing on such Prior Maturity Date by causing the Trustee to
transmit notice of such higher interest rate or higher Spread and/or Spread
Multiplier, as the case may be, to the Holder of this Note. Such notice shall
be irrevocable. In the event that the Maturity Date hereof is so extended and
the Holder hereof shall have not tendered this Note for repayment (or shall
have validly revoked any such tender) pursuant to the next paragraph, this
Note, if it is a Fixed Rate Note, shall bear such higher interest rate, or if
it is a Floating Rate Note, shall bear such higher Spread and/or Spread
Multiplier, for the Extension Period.
If the Company elects to extend the Maturity Date of this Note, the
Holder hereof will have the option to elect repayment hereof on the
immediately Prior Maturity Date at a price equal to the principal amount
hereof outstanding on, plus accrued interest (if any) to, such Prior Maturity
Date. In order for this Note to be so repaid on such Prior Maturity Date, the
Trustee or any other Person designated by the Company for such purpose must
receive at least 25 days but not more than 35 days prior to such Prior
Maturity Date (i) if this Note is a Certificated Note, such Note with the form
entitled "Option to Elect Repayment" on the reverse of this Note duly
completed or (ii) if this Note is a Book-Entry Note, such notices as are
specified on the face hereof. The repayment option may be exercised by the
Holder of this Note for less than the aggregate principal amount hereof then
outstanding, provided that the principal amount hereof remaining outstanding
after such repayment is an Authorized Denomination or any Integral Multiple in
excess hereof. A Holder who has tendered this Note for repayment pursuant to
an Extension Notice may, by delivery of written notice by the close of
business on the tenth day prior to the applicable Prior Maturity Date to the
Trustee, revoke any such tender for repayment.
If so specified on the face hereof, the Maturity Date of this Note may be
extended at the option of the Holder of this Note (other than an Amortizing
Note) at such time or times as shown on the face hereof for one or more
Extension Periods up to but not beyond the Final Maturity Date shown on the
face hereof by delivery to the Trustee by the date specified on the face
hereof of a written notice of such election (the "Holder's Extension Notice").
Such Holder's Extension Notice shall be irrevocable and shall specify the new
Maturity Date. Upon the transmittal by such Holder of such Holder's Extension
Notice to the Trustee, the applicable Prior Maturity Date shall be extended
automatically, and, except as modified pursuant to this paragraph, such Note
will have the same terms as prior to the transmittal of such Holder's
Extension Notice.
12. If so specified on the face hereof, the Company may, at its option,
reset the interest rate, in the case of a Fixed Rate Note, or the Spread
and/or Spread Multiplier, in the case of a Floating Rate Note, on the date or
dates (each such date, an "Optional Reset Date"), if any, specified on the
face hereof, by notifying the Trustee at least 50 but not more than 60 days
prior to an Optional Reset Date with respect to any such Note. Not later than
10 days after receipt of such notice from the Company but in any event not
later than 40 days prior to such Optional Reset Date, the Trustee will mail to
the Holder of such Note a notice (a "Reset Notice") setting forth (i) the
election of the Company to reset the interest rate, in the case of a Fixed
Rate Note, or the Spread and/or Spread Multiplier, in the case of a Floating
Rate Note, (ii) such new interest rate or such new Spread and/or Spread
Multiplier, as the case may be, and (iii) the provisions, if any, for
redemption or repayment during the period from such Optional Reset Date to the
next Optional Reset Date or, if there is no such next Optional Reset Date, to
Maturity of such Note (each such period, a "Subsequent Interest Period"),
including the date or dates on which or the period or periods during which,
and the price or prices at which, such redemption may occur during such
Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to an
Optional Reset Date for a Note, the Company may, at its option, revoke the
interest rate, in the case of a Fixed Rate Note, or the Spread and/or Spread
Multiplier, in the case of a Floating Rate Note, provided for in a Reset
Notice and establish an interest rate, in the case of a Fixed Rate Note, or
the Spread and/or Spread Multiplier, in the case of a Floating Rate Note, that
is higher than the interest rate, Spread and/or Spread Multiplier, as the case
may be, provided for in such Reset Notice, for the Subsequent Interest Period
commencing on such Optional Reset Date by causing the Trustee to transmit
notice, which shall be irrevocable, of such higher interest rate, Spread
and/or Spread Multiplier, as the case may be, to the Holder of such Note. All
Notes with respect to which the interest rate, Spread and/or Spread Multiplier
is reset on an Optional Reset Date and with respect to which the Holder of
such Notes have not tendered such Notes for repayment (or validly revoked any
such tender pursuant to the next succeeding paragraph) will bear such higher
interest rate, Spread and/or Spread Multiplier, as the case may be, whether or
not tendered for repayment.
If the Company elects to reset the interest rate or the Spread and/or
Spread Multiplier, as the case may be, of this Note, the Holder hereof will
have the option to elect repayment hereof on any Optional Reset Date at a
price equal to the principal amount hereof outstanding on, plus accrued
interest (if any) to, such Optional Reset Date. In order for this Note to be
so repaid on an Optional Reset Date, the Trustee or any other Person
designated by the Company for such purpose must receive at least 25 days but
not more than 35 days prior to such Optional Reset Date (i) if this Note is a
Certificated Note, such Note with the form entitled "Option to Elect
Repayment" on the reverse of this Note duly completed or (ii) if this Note is
a Book-Entry Note, such notices as are specified on the face hereof. The
repayment option may be exercised by the Holder of this Note for less than the
aggregate principal amount hereof then outstanding, provided that the
principal amount hereof remaining outstanding after such repayment is an
Authorized Denomination or any Integral Multiple in excess thereof. A Holder
who has tendered this Note for repayment pursuant to a Reset Notice may, by
delivery of written notice by the close of business on the tenth day prior to
the applicable Prior Maturity Date to the Trustee, revoke any such tender for
repayment.
13. As provided in the Indenture, and subject to certain limitations
therein set forth, this Note is exchangeable for a like aggregate principal
amount of different authorized denominations, as requested by the Holder.
14. As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note is registrable on the Security
Register of the Company, upon surrender of this Note for registration of
transfer at the office or agency of the Company in the Borough of Manhattan,
the City and State of New York, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar and the Trustee duly executed by the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Notes of this
series, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
Unless otherwise provided herein, no service charge shall be made for any
such registration of transfer or exchange, but the Company may (unless
otherwise provided herein) require payment of a sum sufficient to cover any
tax or governmental charge payable in connection therewith.
15. Prior to due presentment of this Note 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 Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
16. If an Event of Default with respect to the Securities of this series
shall have occurred and be continuing, the principal of all the Securities of
this series may be declared due and payable in this manner and with the effect
provided in the Indenture.
17. As provided in the Indenture and subject to certain conditions
therein set forth, in case this Note shall at any time become mutilated,
destroyed, stolen or lost and this Note or evidence of the loss, theft or
destruction hereof (together with such indemnity and such other documents or
proof as may be required by the Company, the Trustee and the Security
Registrar) shall be delivered to the principal corporate trust office of the
Trustee, a new Registered Note of like tenor and principal amount will be
issued by the Company in exchange for, or in lieu of, this Note. All expenses
and reasonable charges associated with procuring such indemnity and with the
preparation, authentication and delivery of a new Note, and all taxes and
other governmental charges that may be imposed in relation therewith, shall be
borne by the Holder of this Note.
18. 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
under the Indenture to be affected at any time by the Company and the Trustee
with the consent of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of each series to be so
affected. The Indenture also contains provisions permitting the Holders of a
majority in aggregate principal amount of the Outstanding Securities of any
series on behalf of the Holders of all the Securities of such series to waive
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not notation of such consent or waiver is made upon the
Note.
Holders of Securities may not enforce their rights pursuant to the
Indenture or the Securities except as provided in the Indenture. No reference
herein to the Indenture and no provision of this Note 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 Note at the times, place and rate, and in the coin or currency herein
prescribed.
19. No recourse under or upon any obligation, covenant or agreement of
the Indenture, or of this Note, or for any claim based thereon or hereon or
otherwise in respect thereof or hereof, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the
Company, whether by virtue of any constitution, statute or rule of law, or by
the enforcement of any assessment or penalty or otherwise, all such personal
liability, either at common law or in equity or by constitution or statute,
of, and any and all such rights and claims against every such person being,
by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
20. [Applicable only if the Company is Xerox Capital (Europe) plc -- In
the event of a default by the Company in the performance of its obligations to
pay the principal of, premium, if any, and interest, if any, on this Note, any
Holder hereof shall have the right to serve upon the Company a demand and,
upon receipt of any such demand from any Holder hereof, the Company shall, if
and to the extent that it shall have rights to call for the subscription of
further shares under the Novated and Restated Agreement dated October 31,
1997, between Xerox Overseas Holdings Limited (formerly Xerox Overseas
Holdings PLC) ("Xerox Overseas") and the Company (the "Subscription
Agreement"), serve upon Xerox Overseas a written demand for the subscription
of additional shares in the share capital of the Company pursuant to and
subject to the provisions of the Subscription Agreement.
21. THIS NOTE [Applicable only if the Company is Xerox Capital (Europe)
plc -- AND THE GUARANTEE ENDORSED HEREON] SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT
TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW (OTHER THAN SECTION 5-
1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, AND ANY
SUCCESSOR STATUTE OR STATUTES) [Applicable only if the Company is Xerox
Capital (Europe) plc --; PROVIDED, HOWEVER, THAT ALL MATTERS GOVERNING THE
AUTHORIZATION AND EXECUTION OF THIS NOTE BY THE COMPANY SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE JURISDICTION OF ORGANIZATION
OF THE COMPANY].
22. [Applicable only if the Company is Xerox Capital (Europe) plc -- The
Company submits for the exclusive benefit of the Holders hereof to the non-
exclusive jurisdiction of any United States Federal or New York State court
sitting in New York City, the Borough of Manhattan solely for the purpose of
any legal action or proceeding brought to enforce rights hereunder. As long
as this Note remains Outstanding (unless all payments are then being made by
the Guarantor), the Company shall either have an authorized agent or maintain
an office in New York State upon whom process may be served in any such legal
action or proceeding. Service of process upon the Company at its office or
upon its agent with written notice of such service mailed or delivered to the
Company shall to the fullest extent permitted by applicable law be deemed in
every respect effective service of process upon the Company in any such legal
action or proceeding. The Company hereby appoints Xerox Corporation, Xerox
Square, 100 Clinton Avenue South, Rochester, New York, 14644, U.S.A.,
Attention: General Counsel, as its agent in New York State for such purpose,
and Xerox Corporation accepts such appointment. The Company covenants and
agrees that service of process in any legal action or proceeding may be made
upon it at its office, or upon its agent in New York State. The Company
irrevocably waives (and irrevocably agrees not to raise) any objection which
it may now have or hereafter acquire to the laying of venue of any such
actions or proceedings in any such court referred to in this paragraph and any
claim that any such actions or proceedings have been brought in an
inconvenient forum and further irrevocably agrees that a judgment in any
action or proceeding brought in any court referred to in this paragraph shall
be conclusive and binding upon it and may be enforced in the courts of any
other jurisdiction.
[Applicable only if the Company is Xerox Capital (Europe) plc]
[FORM OF GUARANTEE]
XEROX CORPORATION, a New York corporation (the "Guarantor", which term
includes any successor thereto under the Indenture) has unconditionally
guaranteed, pursuant to the terms of the Guarantee contained in Article
Fourteen of the Indenture, the due and punctual payment of the principal of
and any premium and interest on this Note, when and as the same shall become
due and payable, whether at the Stated Maturity, by declaration of
acceleration, call for redemption, early repayment or otherwise, in accordance
with the terms of this Note and the Indenture.
The obligations of the Guarantor to the Holders hereof and to the Trustee
pursuant to the Guarantee and the Indenture are expressly set forth in Article
Fourteen of the Indenture, and reference is hereby made to such Article and
Indenture for the precise terms of the Guarantee.
The Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication on this Note upon which this notation of the
Guarantee is endorsed shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized signatories.
DATED THE DATE OF THIS NOTE. XEROX CORPORATION, as Guarantor
By:__________________________
Vice President Treasurer
and Secretary
______________
Assistant Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series
provided under the within-mentioned Indenture.
Citibank, N.A.,
as Trustee
By:______________________________
Authorized Signatory
----------------------------------------------------
[OPTION TO ELECT REPAYMENT]
[IN THE CASE OF CERTIFICATED NOTES ONLY]
The undersigned hereby irrevocably requests and instructs the Company to
repay the within or attached Note (or portion thereof specified below)
pursuant to its terms at a price equal to the principal amount thereof,
together with accrued interest, if any, to the Optional Reset Date or Prior
Maturity Date, as applicable, to the undersigned, at _________________________
______________________________________________________________________________
______________________________________________________________________________
(Print or Typewrite Name, Address and Telephone Number of the Undersigned)
For the within or attached Note to be repaid on any Optional Reset Date or
Prior Maturity Date, as applicable, the Company must receive at its office or
agency in the Borough of Manhattan, the City and State of New York, or at such
additional place or places of which the Company shall from time to time notify
the Holder of such Note, at least 25 days but not more than 35 days prior to
such Optional Reset Date or Prior Maturity Date, as applicable, (i) such Note
with this "Option to Elect Repayment" form duly completed or (ii) a telegram,
telex, facsimile transmission or letter from a member of a national securities
exchange or the National Association of Securities Dealers, Inc. or a
commercial bank or a trust company in the United States of America setting
forth the name, address and telephone number of the holder of such Note, the
principal amount of such Note, the amount of the Note to be repaid, a
statement that the option to elect repayment is being made thereby and a
guarantee that the Note to be repaid with the form entitled "Option to Elect
Repayment" on the reverse of such Note duly completed will be received by the
Company not later than five Business Days after the date of such telegram,
telex, facsimile transmission or letter, and such Note and form duly completed
are received by the Company by such fifth Business Day; and, provided that, if
the Company has revoked the interest rate, Spread and/or Spread Multiplier, as
the case may be, and caused the Trustee to transmit a notice of a higher
interest rate or higher Spread and/or Spread Multiplier, as the case may be,
to Holders of the Notes, either form of notice has not been revoked as
provided in such Note.
If less than the entire principal amount of the within attached Note is
to be repaid; specify the portion thereof (which shall be an Authorized
Denomination (as defined on the face hereof) or an Integral Multiple (as
defined on the face hereof) in excess of thereof) which the Holder elects to
have repaid: $_______________;and specify the denomination or denominations
(which shall be an Authorized Denomination or an Integral Multiple in excess
thereof) of the Note or Notes to be issued to the Holder for the portion of
the within attached Note not being repaid (in the absence if any such
specification, one such Note will be issued for the portion not being repaid):
$________________.
___________________________________________________
NOTICE: The signature to this Option to Elect
Repayment 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.
----------------------------------------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of the
within 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 MINOR ACT -- __________________ Custodian ____________________
(Cust) (Minor)
under Uniform Gifts to Minors Act
__________________________________________________
(State)
Additional abbreviations may also be used though not in the above list.
----------------------------------------------------
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
x x
x x
x x
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
______________________________________________________________________________
(Name and address of assignee, including zip code,
must be printed or typewritten)
______________________________________________________________________________
the within Note, and all rights thereunder, hereby irrevocably constituting
and appointing _______________________________________________________________
attorney to transfer said Note 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.