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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)
October 9, 1997
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 75 pages.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits
Exhibit 1(c) --Form of Selling Agency Agreement
Exhibit 4(l) --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: October 9, 1997
2
Exhibit 1(c)
Xerox Corporation
Xerox Overseas Holdings PLC
Rank Xerox Capital (Europe) plc
$2,250,000,000 Medium-Term Notes, Series E
Due Nine Months or More from Date of Issue
Selling Agency Agreement
October [ ],
1997
New York, New
York
Goldman, Sachs & Co.
85 Broad Street
New York, N.Y. 10004
Lehman Brothers Inc.
3 World Financial Center
New York, N.Y. 10285
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower
New York, N.Y. 10281-1310
J.P. Morgan Securities Inc.
60 Wall Street
New York, N.Y. 10260
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
Salomon Brothers Inc
Seven World Trade Center
New York, N.Y. 10048
Dear Sirs:
Each of Xerox Corporation, a New York corporation ("Xerox"), Xerox
Overseas Holdings PLC, a public limited company organized under the laws of
England and Wales ("Xerox Overseas"), and Rank Xerox Capital (Europe) plc, a
public limited company organized under the laws of England and Wales ("Xerox
Capital", and together with Xerox Overseas, the "Subsidiary Issuers", and
collectively with Xerox and Xerox Overseas, the Issuers and each an
"Issuer"), confirms its agreement with each of you with respect to the issue
and sale of its Medium-Term Notes, Series E, 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 Xerox may issue and sell at any time
shall not exceed U.S.$2,250,000,000, 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 all Issuers issued and sold
immediately prior thereto; and the aggregate principal amount (or the
equivalent thereof in one or more foreign currencies or units consisting of
multiple currencies) of Notes which any Subsidiary Issuer may issue and sell
at any time shall not exceed U.S.$2,000,000,000, 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 all
Issuers issued and sold immediately prior thereto, plus the aggregate
principal amount (or the equivalent thereof in one or more foreign
currencies or units consisting of multiple currencies) of all Notes of Xerox
issued and sold immediately prior thereto up to U.S.$250,000,000. All Notes
of the Subsidiary Issuers 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 any Subsidiary Issuer (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 [ ],
1997 (as the same may be amended or supplemented from time to time, the
"Indenture"), among the Issuers, 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 Number: 333-13179), ("Registration
Statement No. 333-13179") including a basic prospectus, which has become
effective, for the registration under the Act of U.S. $1,015,000,000
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 Numbers: 333-34333, 333-34333-01 and 333-34333-02) (collectively,
"Registration Statement No. 333-34333"), including a basic prospectus, which
has been filed with the Commission and has become effective, for the
registration under the Act of U.S. $2,000,000,000 aggregate principal amount
(or the equivalent thereof in one or more foreign currencies or units
consisting of multiple currencies) of debt securities (such debt securities,
together with the debt securities registered pursuant to Registration
Statement No. 333-13179, the "Securities"), constituting $2,250,000,000
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. 333-34333
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 the 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 any 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 Subsidiary Issuers, 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 the Subsidiary Issuers, assuming due
authorization by the Subsidiary Issuers thereof, 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 Subsidiary Issuers and
the Trustee) 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 the Subsidiary
Issuers, dated the Execution Time, to the effect that:
(i) the Subsidiary Issuers have been duly incorporated and
are validly existing as public limited companies 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 the
Subsidiary Issuers or the offering of their Notes on the terms of the
Registration Statement or in connection with the performance by the
Subsidiary Issuers of their respective obligations under the Indenture and
this Agreement (together the "Relevant Agreements") and their Notes;
(iii) the Subsidiary Issuers have corporate power to enter
into and to perform their respective obligations under the Relevant
Agreements, to issue and to perform their respective obligations under their
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 their respective authorised agents 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 each of the Subsidiary Issuers
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 respective obligations of each of the
Subsidiary Issuers thereunder, including, but without limitation, the
submission by each of the Subsidiary Issuers 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 each of the Subsidiary Issuers;
(v) the execution and delivery of the Relevant Agreements by
the Subsidiary Issuers has not resulted, and the issue of the Notes of the
Subsidiary Issuers in the manner therein contemplated will not result, in
(A) any breach or violation of the terms of the Memorandum arid Articles of
Association of either of the Subsidiary Issuers or (B) any existing laws or
regulations of any governmental or regulatory body in the United Kingdom
being infringed;
(vi) due payment by the Subsidiary Issuers of the principal
and interest (including additional amounts under the terms and conditions of
the Notes of the Subsidiary Issuers) on the Notes of the Subsidiary Issuers
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 the Subsidiary Issuers;
(viii) the statements contained in the Registration Statement
under the headings "Description of the Debt Securities and the Guarantees -
Limitations Affecting Security Holders", "Xerox Overseas - Enforceability of
Certain Civil Liabilities" 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; and
(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.
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 Rank Xerox Limited, or its successor (or such other
Solicitor as shall be reasonably acceptable to the Representatives), dated
the date of the Effective Time, to the effect that Rank Xerox Limited 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 the Prospectus; and the outstanding share capital of such
corporation has been duly authorized or validated and issued and is fully
paid and nonassessable.
(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 Company 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 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 Peat Marwick 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) an opinion
of counsel, 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 Peat Marwick 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 first sentence
of the third footnote (but only with respect to information determined by
any of you acting as principal) and the first sentence of the last paragraph
of the cover page, and the first sentence of the first paragraph, the first
three sentences of the second paragraph, the second sentence of the third
paragraph and the third sentence of the fifth paragraph (but, in each case,
only with respect to information about you) 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(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(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 Overseas or 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:
XEROX OVERSEAS HOLDINGS PLC,
as an Issuer
By: ___________________________
Title:
By: ___________________________
Title:
RANK XEROX CAPITAL (EUROPE) PLC,
as an Issuer
By: ___________________________
Title:
By: ___________________________
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date
hereof.
_______________________________
(Goldman, Sachs & Co.)
LEHMAN BROTHERS INC.
By: ___________________________
Title:
MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED
By: ___________________________
Title:
J.P. MORGAN SECURITIES INC.
By: ___________________________
Title:
MORGAN STANLEY & CO. INCORPORATED
By: ___________________________
Title:
SALOMON BROTHERS INC
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 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 Brothers 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 issur 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 Securities 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 OVERSEAS HOLDINGS PLC
RANK XEROX CAPITAL (EUROPE) PLC
Medium-Term Note Administrative Procedures
(October [ ], 1997)
The Medium-Term Notes, Series E, Due Nine Months or More from Date of
Issue (the "Notes") of Xerox Corporation ("Xerox"), Xerox Overseas Holdings
PLC ("Xerox Overseas") and Rank Xerox Capital (Europe) plc ("Xerox Capital",
and together with Xerox Overseas, the "Subsidiary Issuers", and collectively
with Xerox and Xerox Overseas, the Issuers and each an "Issuer"), are to be
offered on a continuing basis. 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
Brothers 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 the
Subsidiary Issuers 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 any Subsidiary Issuer (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 Guarantees will rank
equally with all other unsecured and unsubordinated debt of Xerox, and the
Notes of each Subsidiary Issuer will rank equally with all other unsecured
and unsubordinated debt of such Subsidiary Issuer. The Notes and the
Guarantees have been registered with the Securities and Exchange Commission
(the "Commission"), and will be issued under the Indenture dated as of
October [ ], 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 Guarantees 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 Guarantees 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 each
of the other Issuers, 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 Fixed Rate Book-Entry Notes. Interest on Fixed Rate Book-
- -------------- ----------------------------
Interest: 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 Payment of Interest Only. Promptly after each Regular
- ----------- -------------------------
Principal and Record Date, the Trustee will deliver to the relevant
- -------------
Interest: 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 The Company and the Agents will discuss from time to time
- -------------
Rate Setting the aggregate principal amount of, the issuance price of,
- ------------
and Posting: 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 Unless otherwise instructed by the Company or the
Guarantor,
- --------------
Rejection of each Agent will advise the Company and the Guarantor
- ------------
Orders: 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 If any order to purchase a Book-Entry Note is accepted by
or
- --------------
Pricing on behalf of the Company, the Company will prepare or
cause
- -------
Supplement: 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 Subject to the representations, warranties and covenants
- -------------
Solicitation; of the Company and the Guarantor contained in the Agency
- -------------
Amendment or Agreement, the Company or the Guarantor may instruct the
- ------------
Supplement: 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 When the Company has determined to change the interest
rates
- --------------
Rate Changes: 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 A copy of the Prospectus and a Pricing Supplement
relating
- -----------
Prospectus: 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 Settlement Procedures with regard to each Book-Entry Note
- ----------
Procedures: 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 Guarantees 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 Guarantees 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. $2,250,000,000 if the
Company is Xerox, or U.S.$2,000,000,000 if the Company is a Subsidiary
Issuer, or, in each case, 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 For orders of Book-Entry Notes solicited by any Agent and
- ----------
Procedures accepted by the Company for settlement on the first
Business
- ----------
Timetable: 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 If the Trustee fails to enter an SDFS deliver order with
- ----------
Settle: 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 Nothing herein shall be deemed to require the Trustee or
the
- -----------
Paying Agent Paying Agent to risk or expend its own funds in connection
- ------------
Not to Risk with any payment to the Company, any Agent, DTC or the
- -----------
Funds: 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 Neither the Paying Agent nor any Agent will have any
- ------------
of Signatures: 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 Guarantees relating thereto.
Statements from Upon request, the Trustee will send to the Company and the
- ---------------
the Trustee: 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 A Certificated Note may be presented for transfer or
- -------------
Exchanges: 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. 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 Fixed Rated Certificated Note. Interest on Fixed Rate
- --------------
Interest: 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 The Paying Agent will pay the principal amount of each
- -----------
Principal and Certificated Note at Maturity upon presentation of such
- -------------
Interest: 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 The Company, the Guarantor and the Agents will discuss
from
- -------------
Rate Setting time to time the aggregate principal amount of, the
issuance
- ------------
and Posting: 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 Unless otherwise instructed by the Company or the
Guarantor,
- --------------
Rejection of each Agent will advise the Company and the Guarantor
- ------------
Orders: 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 If any order to purchase a Certificated Note is accepted
by
- --------------
Pricing or on behalf of the Company, the Company will prepare or
- -------
Supplement: 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 Subject to the representations, warranties and covenants
of
- -------------
Solicitation; the Company and the Guarantor contained in the Agency
- -------------
Amendment or Agreement, the Company or the Guarantor may instruct the
- ------------
Supplement: 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 When the Company has determined to change the interest
rates
- -------------
Rate Changes: 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 A copy of the Prospectus and a Pricing Supplement relating
- -----------
Prospectus: 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 Settlement Procedures with regard to each Certificated
Note
- ----------
Procedures: 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 Guarantees 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
Guarantees 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. $2,250,000,000 if the Company is Xerox, or U.S.$2,000,000,000 if
the Company is a Subsidiary Issuer, or, in each case, 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 Subsidiary
Issuer, 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 For orders of Certificated Notes solicited by any Agent,
as
- ----------
Procedures agent, and accepted by the Company, Settlement Procedures
- ----------
Timetable: "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 If a purchaser fails to accept delivery of and make
payment
- ----------
Settle: 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 Nothing herein shall be deemed to require the Trustee or
the
- -----------
Paying Agent Paying Agent to risk or expend its own funds in connection
- ------------
Not to Risk with any payment to the Company, or any Agent or the
- -----------
Funds: 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 Neither the Paying Agent nor any Agent will have any
- ------------
of Signatures: 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 Guarantees relating thereto.
Statements Upon request, the Trustee will send to the Company and the
- ----------
from the Guarantor a statement setting forth the principal amount
of
- --------
Trustee: 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 Overseas Holdings PLC
Rank Xerox Capital (Europe) plc
Medium Term Notes, Series E
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 October [ ], 1997, among 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 Brothers Inc, [insert as appropriate --
Xerox Corporation, Xerox Overseas Holdings PLC, Rank Xerox Capital (Europe)
plc] and you, the undersigned agrees to purchase the following Notes of
[insert as appropriate -- Xerox Corporation, Xerox Overseas Holdings PLC,
Rank Xerox Capital (Europe) plc] (the "Company"):
GENERAL:
Principal Amount:
Issue Price: % (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
/ / Federal Funds Rate
/ / J.J. Kenny Rate
/ / Prime Rate
/ / Treasury Rate
/ / LIBOR: Designated LIBOR Page: / / LIBOR-Reuters
/ / LIBOR-Telerate
Index Currency (if other than U.S. dollars)
/ / 11th District Cost of Funds Rate
/ / 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.):
Other provisions:
/ / Fixed Rate Note(other than Amortizing Note or Zero-Coupon Note):
Fixed rate of: % per annum
/ / 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 Specified Currency, other than U.S. dollars (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 OVERSEAS HOLDINGS PLC
RANK XEROX CAPITAL (EUROPE) PLC]
By: _________________________
Title:
[By: ________________________
Title:]
Exhibit 4(n)
[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 -- 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 OVERSEAS HOLDINGS PLC]
[RANK XEROX CAPITAL (EUROPE) PLC]
MEDIUM-TERM NOTE, SERIES E
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: % (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
/ / Federal Funds Rate
/ / J.J. Kenny Rate
/ / Prime Rate
/ / Treasury Rate
/ / LIBOR: Designated LIBOR Page: / / LIBOR-Reuters
/ / LIBOR-Telerate
Index Currency (if other than U.S. dollars):
/ / 11th District Cost of Funds Rate
/ / 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.):
Other provisions:
/ / Fixed Rate Note(other than Amortizing Note or Zero-Coupon Note):
Fixed rate of: % per annum
/ / 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 Specified Currency, other than U.S. dollars (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 OVERSEAS HOLDINGS PLC, a public
limited company organized under the laws of England and Wales] [RANK 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, 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 OVERSEAS HOLDINGS PLC]
[RANK 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 OVERSEAS HOLDINGS PLC]
[RANK XEROX CAPITAL (EUROPE) PLC]
MEDIUM-TERM NOTE, SERIES E
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 [ ], 1997 (as amended, supplemented
or modified from time to time, the "Indenture"), among the Company,
[Applicable only if the Company is Xerox Overseas Holdings PLC or Rank Xerox
Capital (Europe) plc -- Xerox Corporation, Xerox Overseas Holdings PLC, 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 Overseas Holdings PLC or Rank 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
or Xerox Credit Corporaiton -- 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 Overseas
Holdings PLC or Rank 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 E (herein called the
"Notes"), limited in aggregate principal amount of [Applicable only if the
Company is Xerox Corporation -- U.S.$2,250,000,000] [Applicable only if the
Company is Xerox Overseas Holdings PLC or Rank Xerox Capital (Europe) plc --
U.S.$2,000,000,000] 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 banking institutions are authorized or required by law,
regulation or executive order to be closed in The City of New York and (x)
if the Specified Currency shown on the face hereof is other than U.S.
dollars or European Currency Units ("ECUs"), in the Principal Financial
Center (as defined below) of the country of such Specified Currency, (y) if
the Specified Currency shown on the face hereof is ECUs, in the city of
London and Luxembourg City, Luxembourg, and (z) if the Base Rate specified
on the face hereof is LIBOR, is also a London Banking Day. "London Banking
Day" means any day (i) if the Index Currency (as defined below) is other
than ECU, on which dealings in such Index Currency are transacted in the
London interbank market or (ii) if the Index Currency is ECU, that is not
designated as an ECU Non-Settlement Day by the ECU Banking Association or is
otherwise generally regarded in the ECU interbank market as a day on which
payments in ECUs shall be made.
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. Unless otherwise
specified on the face hereof, any payment of principal of (and premium, if
any) or interest required to be made in respect of a Fixed Rate Note
(including an Amortizing Note), other than at Maturity, on a day that is not
a Business Day need not be made on such day, but may be made on the next
succeeding Business Day with the same force and effect as if made on such
day, and no additional amounts shall be payable as a result of such delayed
payment. Interest will accrue from and including the most recent Interest
Payment Date or, if no interest has been paid or duly provided for, from and
including the Original Issue Date shown on the face hereof, to, but
excluding, the Interest Payment Date. 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 J.J. Kenny
Rate", "Determination of LIBOR", "Determination of Treasury Rate",
"Determination of Prime Rate", "Determination of 11th District Cost of Funds
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, J.J. Kenny Rate, LIBOR, Treasury Rate, Prime
Rate, 11th District Cost of Funds 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; provided, however, in each case, unless otherwise specified on
the face hereof, that if an Interest Payment Date would fall on a day that
is not a Business Day, such Interest Payment Date shall be postponed to the
next succeeding Business Day, except that if the Base Rate specified on the
face hereof is LIBOR and such Business Day is in the next calendar month,
such Interest Payment Date shall be the immediately preceding Business Day.
Any payment of principal (and premium, if any) and interest required to be
made on a Floating Rate Note at Maturity on a day that is not a Business Day
shall be made on the next succeeding Business Day with respect to such
Floating Rate Note (with the same force and effect as if made at Maturity,
and no additional interest shall accrue as a result of any such delayed
payment).
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 Interest Payment Date to which interest has been paid
to, but excluding, such Interest Payment Date or date of Maturity, as the
case may be (each such period, an "Interest Period"). 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, J.J. Kenny Rate, LIBOR, Prime Rate or 11th
District Cost of Funds 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,
J.J. Kenny 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 11th District
Cost of Funds Rate, the last working day of the month next preceding the
applicable Interest Reset Date on which the FHLB of San Francisco (as
defined below) publishes the 11th District Cost of Funds Index (as defined
below) and (iv) 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 (1) 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)" or (2) 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 as published by the Federal Reserve Bank of New York in its daily
statistical release, "Composite 3:30 p.m. Quotations for U.S. Government
Securities", or any successor publication of the Federal Reserve Bank of New
York ("Composite Quotations") under the heading "Certificates of Deposit" or
(b) if such rate is not published in Composite Quotations by 3:00 p.m., New
York City time, on the Calculation Date pertaining to such Interest
Determination Date, the arithmetic mean as calculated by the Calculation
Agent 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 certificates of deposit in The City of New York
selected by the Calculation Agent for negotiable certificates of deposit of
major United States money center banks of the highest credit standing (in
the market for negotiable certificates of deposit) with a remaining maturity
closest to the Index Maturity specified on the face hereof in a denomination
of U.S. $5,000,000; provided, however, that if such dealers selected as
aforesaid by the Calculation Agent are not quoting such rate as mentioned in
this sentence, the interest rate for such Interest Determination Date shall
equal the interest rate then in effect hereon 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 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 for (i) if the Designated CMT
Telerate Page is 7055, 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. 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). 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). If such information is not
provided by 3:00 p.m., New York City time, on the related Calculation Date,
then the CMT Rate for the Interest Determination Date will be calculated by
the Calculation Agent and will be a yield to maturity, based on the
arithmetic mean of the secondary market closing offer side prices as of
approximately 3:30 p.m. (New York City time) on 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 (from five such
Reference Dealers selected by the Calculation Agent and eliminating the
highest quotation (or, in the event of equality, one of the highest) and the
lowest quotation (or, in the event of equality, one of the lowest)), for the
most recently issued direct noncallable fixed rate obligations of the United
States ("Treasury Notes") with an original maturity of approximately the
Designated CMT Maturity Index and a remaining term to maturity of not less
than such Designated CMT Maturity Index minus one year. If the Calculation
Agent cannot obtain three such Treasury Note quotations, the CMT Rate for
such Interest Determination Date will be calculated by the Calculation Agent
and will be a yield to maturity based on the arithmetic mean of the
secondary market offer side prices as of approximately 3:30 p.m. (New York
City time) on the Interest Determination Date of three Reference Dealers in
The City of New York (from five such Reference Dealers selected by the
Calculation Agent and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for Treasury Notes with an original maturity
of the number of years that is the next highest to the Designated CMT
Maturity Index and a remaining term to maturity closest to the Designated
CMT Maturity Index and in an amount of at least $100 million. 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; provided, however, that 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 the second
preceding sentence, 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 Dow Jones
Telerate Service on the page designated in the applicable Pricing Supplement
(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 in the applicable
Pricing Supplement, 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 in the applicable Pricing Supplement with respect to which the CMT
Rate will be calculated. If no such maturity is specified in the applicable
Pricing Supplement, the Designated CMT Maturity Index shall be two 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 (a) 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 (1)
as published in H.15(519) under the heading "Commercial Paper--Non-
financial" or, if unreliable, under such other heading representing
commercial paper issued by non-financial entities whose bond rating is "AA",
or the equivalent, from a nationally recognized statistical rating
organization, or (2) if such rate is not published by 9:00 a.m., New York
City time, on the Calculation Date pertaining to such Interest Determination
Date, then as published in Composite Quotations under the heading
"Commercial Paper", or (b) if such rate is not published in Composite
Quotations by 3:00 p.m., New York City time, on the Calculation Date
pertaining to such Interest Determination Date, 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 The City of New York selected by the Calculation Agent
for commercial paper placed for industrial issuers whose bond rating is
"AA", or the equivalent, from a nationally recognized rating agency, having
the Index Maturity specified on the face hereof; provided, however, that if
the dealers selected as aforesaid by the Calculation Agent are not quoting
offered rates as mentioned in this sentence, the rate of interest for such
Interest Determination Date shall equal the interest rate then in effect on
such Interest Determination Date.
"Money Market Yield" means a yield (expressed as a percentage)
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 (a) the rate on such Interest
Determination Date for Federal Funds (1) as published in H.15(519) under the
heading "Federal Funds (Effective)" or (2) if not so published by 9:00 a.m.,
New York City time, on the Calculation Date pertaining to such Interest
Determination Date, then as published in Composite Quotations under the
heading "Federal Funds/Effective Rate" or (b) if such rate is not published
in Composite Quotations by 3:00 p.m., New York City time, on the Calculation
Date pertaining to such Interest Determination Date, such rate as shall be
calculated by the Calculation Agent which will 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 as of 9:00 a.m., New York City time, on
such Interest Determination Date; provided, however, that if the brokers
selected as aforesaid by the Calculation Agent are not quoting such rates as
mentioned in this sentence, the interest rate for such Interest
Determination Date shall equal the interest rate then in effect on such
Interest Determination Date.
Determination of J.J. Kenny Rate
- --------------------------------
Unless otherwise specified on the face hereof, if the Base Rate
specified on the face hereof is J.J. Kenny Rate, the interest rate for any
Interest Determination Date shall equal the rate in the high grade weekly
index (the "Weekly Index") on such date made available by Kenny information
Systems ("Kenny") to the Calculation Agent. The Weekly Index is, and shall
be, based upon 30-day yield evaluations at par of bonds, the interest of
which is exempt from Federal income taxation under the Internal Revenue Code
of 1986, as amended (the "Code"), of not less than five high grade component
issuers selected by Kenny which shall include, without limitation, issuers
of general obligation bonds. The specific issuers included among the
component issuers may be changed from time to time by Kenny in its
discretion. The bonds on which the Weekly Index is based shall not include
any bonds on which the interest is subject to a minimum tax or similar tax
under the Code, unless all tax-exempt bonds are subject to such tax. In the
event Kenny fails to make available such Weekly Index prior to the relevant
Calculation Date, a successor indexing agent will be selected by the
Calculation Agent, such index to reflect the prevailing rate for bonds rated
in the highest short-term rating category by Moody's Investors Service, Inc.
and Standard & Poor's Corporation in respect of issuers most closely
resembling the high grade component issuers selected by Kenny for its Weekly
index, the interest on which is (A) variable on a weekly basis, (B) exempt
from Federal income taxation under the Code and (C) not subject to a minimum
tax or similar tax under the Code, unless all tax-exempt bonds are subject
to such tax. If such successor indexing agent is not available, the rate
for any Interest Determination Date shall be 67% of the rate determined if
the Treasury Rate had been originally selected as the interest rate for the
J.J. Kenny Notes. The Calculation Agent shall calculate the J.J. Kenny Rate
in accordance with the foregoing. At the request of a Holder of a Floating
Rate Note bearing interest at the J.J. Kenny Rate, the Calculation Agent
will provide such holder with the interest rate that will become effective
as of the next Interest Reset 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, the interest rate for any Interest
Determination Date shall equal the rate determined by the Calculation Agent
as follows:
(i) If (a) "LIBOR Reuters" is specified on the face hereof, 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 second London Banking Day immediately following such Interest
Determination Date, that appear on the Designated LIBOR Page specified on
the face hereof as of 11:00 A.M., London time, on such Interest
Determination Date, if at least two such offered rates appear (unless, as
aforesaid, only a single rate is required) on such Designated LIBOR Page, or
(b) "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, the rate for deposits in the Index Currency (as defined
below) having the Index Maturity specified on the face hereof, commencing on
the second London Banking Day immediately following such Interest
Determination Date that appear 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 (unless the specified
Designated LIBOR Page by its terms provides only for a single rate, in which
case such single rate shall be used), or if no such rate appears, as
applicable, LIBOR in respect of the related Interest Determination Date will
be determined in accordance with the provisions described in clause (ii)
below.
(ii) With respect to an Interest Determination Date on which fewer than
two offered rates appear, or no rate appears, as the case may be, on the
applicable Designated LIBOR Page as specified in clause (i) above, 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, 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 second London
Banking Day immediately following such Interest Determination 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. 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., 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 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; provided, however, that if the banks
so selected by the Calculation Agent are not quoted as mentioned in this
sentence, 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 either (a) if "LIBOR Reuters" is
specified on the face hereof, the display on the Reuters Monitor Money Rates
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 neither "LIBOR Reuters" nor "LIBOR
Telerate" is specified on the face hereof as the method for calculating
LIBOR, the display on the Dow Jones Telerate Service for the purpose of
displaying the London interbank rates of major banks for the applicable
Index Currency.
"Principal Financial Center" will generally be the capital city of the
country of the specified Index Currency, except that with respect to the
U.S. dollars, Deutsche marks, Dutch guilders, Italian lire, Swiss francs and
ECUs, the Principal Financial Center shall be The City of New York,
Frankfurt, Amsterdam, Milan, Zurich and Luxembourg, 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 published in H.15(519) under the heading "U.S. Government Securities--
Treasury bills--auction average (investment)" or, if not so published by
9:00 a.m., New York City time, on the Calculation Date pertaining to such
Interest Determination Date, the auction average rate (expressed as a bond
equivalent, rounded to the nearest one one-hundredth of a percent, with five
one-thousandths of a percent rounded upward, 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. 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, then the Treasury
Rate shall be calculated by the Calculation Agent and shall be a yield to
maturity (expressed as a bond equivalent, rounded to the nearest one one-
hundredth of a percent, with five one-thousandths of a percent rounded
upward, 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 for the issue of
Treasury bills with a remaining maturity closest to the Index Maturity
specified on the face hereof; provided, however, that if the dealers
selected as aforesaid by the Calculation Agent are not quoting bid rates as
mentioned in this sentence, the interest rate for such Interest
Determination Date shall equal the interest 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 by the Board of Governors of the Federal
Reserve System in H.15(519) under the heading "Bank Prime Loan". If such
rate is not published by 9:00 a.m., New York City time, on the Calculation
Date pertaining to such Interest Determination Date, the Prime Rate will be
determined by the Calculation Agent and will 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 such bank's prime rate or base
lending rate as in effect for such Interest Determination Date. "Reuters
Screen USPRIME1 Page" means the display designated as page "USPRIME1" on the
Reuters Monitor Money Rates Service (such term to include such other page as
may replace the USPRIME1 page on that Service for the purpose of displaying
prime rates or base lending rates of major United States banks). If fewer
than four such rates but more than one such rate appear on the Reuters
Screen USPRIME1 Page for such Interest Determination Date, the Prime Rate
will be determined by the Calculation Agent and will 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 four major money center banks in The City of New York
selected by the Calculation Agent from a list approved by the Company. If
fewer than two such rates appear on the Reuters Screen USPRIME1 Page for
such Interest Determination Date, the Prime Rate will be determined by the
Calculation Agent and will be the arithmetic mean of the prime rates
furnished in The City of New York by the appropriate number of 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 U.S.$500,000,000 and being subject to supervision or
examination by Federal or state authority, selected by the Calculation Agent
from a list approved by the Company to provide such rate or rates; provided,
however, that if the banks or trust companies selected as aforesaid by the
Calculation Agent from a list approved by the Company are not quoting as
mentioned in this sentence, the rate of interest in effect for the
applicable period will be the rate of interest in effect on such Interest
Determination Date.
Determination of 11th District Cost of Funds Rate
- -------------------------------------------------
Unless otherwise specified on the face hereof, if the Base Rate
specified on the face hereof is 11th District Cost of Funds Rate, the
interest rate for any Interest Determination Date shall equal the rate equal
to the monthly weighted average cost of funds for the calendar month
immediately preceding the month in which such Interest Determination Date
falls, as set forth under the caption "11th District" on Telerate Page 7058
as of 11:00 a.m., San Francisco time, on such Interest Determination Date.
If such rate does not appear on Telerate Page 7058 on any related Interest
Determination Date, the 11th District Cost of Funds Rate for such Interest
Determination Date shall be the monthly weighted average cost of funds paid
by member institutions of the 11th Federal Home Loan Bank District that was
most recently announced (the "11th District Cost of Funds Index") by the
Federal Home Loan Bank of San Francisco (the "FHLB of San Francisco") as
such cost of funds for the calendar month immediately preceding the date of
such announcement. If the FHLB of San Francisco fails to announce such rate
for the calendar month immediately preceding such Interest Determination
Date, then the 11th District Cost of Funds Rate determined as of such
Interest Determination Date will be the 11th District Cost of Funds Rate in
effect on such Interest Determination Date.
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 ECU, 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 ECU, a Business Day with respect to the ECU.
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 Specified Currency other than U.S. dollars, 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 Specified Currency other than U.S. dollars) 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 Specified Currency (if other than U.S. dollars), 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 other than U.S. dollars,
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 Specified 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 Specified 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 Specified 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 Specified currency is again available for
making such payments.
Unless otherwise specified on the face hereof, if the Specified
Currency is other than U.S. dollars, 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 Specified Currency payable on such payment date in respect of
all Notes denominated in such Specified 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 Specified Currency which will yield the largest
number of U.S. dollars when the Company is receiving U.S. dollars in lieu of
the Specified Currency and will require the smallest number of U.S. dollars
when the Company is paying U.S. dollars in lieu of the Specified 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 Specified 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 Specified Currency. If no such
indicative quotations are available, then such payment will be made in such
Specified Currency, unless such Specified 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 Specified 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.
Except as set forth below with respect to payments in ECU, if any
payment in respect hereof is required to be made in a Specified Currency
other than U.S. dollars and such 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
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 Specified
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 Specified Currency as certified for customs
purposes by the Federal Reserve Bank of New York (the "Market Exchange
Rate") for such Specified 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 Specified Currency is
not a composite currency, on the basis of the most recently available Market
Exchange Rate for such Specified Currency or (ii) if such Specified 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.
If any payment in respect hereof on any date is required to be made in
ECU and ECU are unavailable due to the imposition of exchange controls or
other circumstances beyond the Company's control or are not used in the
European Monetary System, then such payment shall be made in U.S. dollars.
The amount of such payment in U.S. dollars shall be converted at a rate
determined by the Exchange Rate Agent on the basis of the equivalent of the
ECU in U.S. dollars as of the second Business Day prior to the date on which
such payment is due. The equivalent of ECU in U.S. dollars as of any date
(the "Day of Valuation") shall be determined by the Exchange Rate Agent on
the following basis. The component currencies of ECU for these purposes
(the "Components") shall be the currency amounts that were components of ECU
as of the last date on which ECU was used in the European Monetary System.
The equivalent of ECU in U.S. dollars shall be calculated by aggregating the
U.S. dollar equivalents of the Components. The U.S. dollar equivalent of
each of the Components shall be determined by the Exchange Rate Agent on the
basis of the most recently available Market Exchange Rates for such
Components or as otherwise indicated on the face hereof. If the official
unit of any component currency is altered by way of combination or
subdivision, the number of units of that currency as a Component shall be
divided or multiplied in the same proportion. If two or more component
currencies are consolidated into a single currency, the amounts of those
currencies as Components shall be replaced by an amount in such single
currency equal to the sum of the amount of the consolidated component
currencies expressed in such single currency. If any component currency is
divided into two or more currencies, the amount of that currency as a
Component shall be replaced by amounts of such two or more currencies, each
of which shall be equal to the amount of the former component currency
divided by the number of currencies into which that currency was divided.
From the start of the third stage of European monetary union, if any
payment in respect hereof is to be made in ECU, all such amounts will be
payable in Euros at the rate then established in accordance with the Treaty
establishing the European Community, as amended by the Treaty on European
Union. The preceding paragraph of this Section 6 will not result in payment
in a component currency in such circumstances.
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 Rank 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, or 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 Original Subscription
Agreement or, if it has at such time been executed, the Subscription
Agreement, as the case may be, serve upon Rank Xerox Limited or, if the
Subscription Agreement shall then have been executed, Xerox Overseas
Holdings PLC 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 Original Subscription Agreement or the Subscription Agreement, as the
case may be.
"Original Subscription Agreement" means the Amended and Restated
Subscription Agreement dated as of April 18, 1997 between Rank Xerox Limited
and the Company.
"Subscription Agreement" means the proposed Amended and Restated
Subscription Agreement expected to be among Rank Xerox Limited, Xerox
Overseas Holdings PLC and the Company.]
21. THIS NOTE [Applicable only if the Company is Xerox Overseas
Holdings PLC or Rank 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 Overseas Holdings PLC
or Rank 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 Overseas Holdings PLC or
Rank 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 Overseas Holdings PLC or
Rank 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:_________________________________
[Chairman, President, Vice
President or Treasurer]
__________________________________
[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
----------------------------------------------------
[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.