As filed with the Securities and Exchange Commission on August 1, 1995
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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Xerox Credit Corporation
(Exact name of registrant as specified in its charter)
Delaware 06-1024525
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
100 First Stamford Place
P.O. Box 10347
Stamford, Connecticut 06904-2347
(203) 325-6600
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
---------------
Martin S. Wagner
Secretary
c/o Xerox Corporation
P.O. Box 1600
Stamford, Connecticut 06904
(203) 968-3000
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
---------------
Copy to:
John W. White
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019
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Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
---------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. ( )
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. (X)
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. ( )
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. ( )
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. ( )
(continued on next page)
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The registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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<PAGE>
(continued from previous page)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================================
Proposed Proposed
maximum maximum
Amount offering aggregate Amount of
Title of each class of to be price per offering registration
securities to be registered registered(1)(3) unit(2) price(1)(2)(3) fee
-----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities ........................ $997,380,000 100% $997,380,000 $343,925
=================================================================================================================
</TABLE>
(1) In U.S. dollars or equivalent thereof in foreign denominated currency or
units consisting of multiple currencies.
(2) Estimated solely for the purposes of calculating the registration fee.
(3) Or, if any securities are issued at original issue discount, such greater
amount as shall result in aggregate proceeds of $997,380,000 to the
registrant.
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STATEMENT PURSUANT TO RULE 429(b)
The prospectus contained in this Registration Statement is a combined
prospectus which also covers Debt Securities of the Company heretofore covered
by Registration Statement No. 33-43470. This Registration Statement also
constitutes Post-Effective Amendment No. 2 with respect to such Registration
Statement No. 33-43470, and such Post-Effective Amendment shall hereafter become
effective concurrently with the effectiveness of this Registration Statement in
accordance with Section 8(c) of the Securities Act of 1933.
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION DATED AUGUST 1, 1995
PROSPECTUS
XEROX CREDIT CORPORATION
Debt Securities
Xerox Credit Corporation (the "Company") intends from time to time to issue
debt securities (the "Debt Securities") from which the Company will receive
proceeds of up to an aggregate of $1,000,000,000 (or the equivalent thereof in
one or more foreign denominated currencies or units consisting of multiple
currencies, including European Currency Units ("ECU")) and which will be offered
on terms to be determined at the time of sale. The Debt Securities may be issued
in one or more series with the same or various maturities at par or with an
original issue discount and may be issued as individual securities in registered
form without coupons or as one or more global securities in registered form
(each a "Global Security"). The purchase price for the principal of and any
premium and any interest on the Debt Securities may be payable in U.S. dollars
or in one or more foreign denominated currencies or currency units.
The specific title, aggregate principal amount, designated currency or
currency units, offering price, maturity, rate (which may be fixed or variable)
or method of calculating interest and time of any payment of interest (if any),
the currency or currency units in which payments of Debt Securities may be made,
any right on the part of the holders of Debt Securities to require the
repurchase thereof by the Company, any redemption, prepayment, sinking fund and
other terms and any securities exchange listing of Debt Securities (the "Offered
Debt Securities") in respect of which this Prospectus is being delivered are set
forth in a supplement to this Prospectus (the "Prospectus Supplement") together
with the terms of the offering. The Prospectus Supplement will also contain
information where applicable about material United States Federal income tax
considerations relating to the Debt Securities covered by such Prospectus
Supplement.
The Company may sell the Offered Debt Securities in any one or more of the
following ways: (1) directly to investors, (2) to investors through agents, (3)
to broker-dealers as principals, (4) through underwriting syndicates led by one
or more managing underwriters as the Company may select from time to time, or
(5) through one or more underwriters acting alone. If any underwriters, agents
or dealers are involved in the sale of the Offered Debt Securities, their names
and any applicable fee, commission or discount arrangements with them will be
set forth in the Prospectus Supplement. See "Plan of Distribution".
This Prospectus may not be used to consummate sales of Offered Debt
Securities unless accompanied by a Prospectus Supplement.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
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The date of this Prospectus is August , 1995.
<PAGE>
IN CONNECTION WITH AN OFFERING OF OFFERED DEBT SECURITIES, THE
UNDERWRITERS, IF ANY, FOR SUCH OFFERING MAY OVER-ALLOT OR EFFECT TRANSACTIONS
WHICH STABILIZE OR MAINTAIN THE MARKET PRICES OF THE OFFERED DEBT SECURITIES AT
LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). Such reports and other information filed by the
Company can be inspected and copied at the public reference facilities of the
Commission at 450 Fifth Street, N.W. (Room 1024), Judiciary Plaza, Washington,
D.C. 20549; as well as at the Regional Offices of the Commission located at
Northwestern Atrium Center, 500 West Madison Street (Suite 1400), Chicago,
Illinois 60661; and Seven World Trade Center (13th Floor), New York, New York
10048. Copies of such material can be obtained from the Public Reference Section
of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates. Such reports and other information concerning the Company also
may be inspected at the offices of the New York Stock Exchange, Inc., 20 Broad
Street, New York, New York 10005. This Prospectus does not contain all the
information set forth in the Registration Statement and Exhibits thereto which
the Company has filed with the Commission under the Securities Act of 1933 and
to which reference is hereby made.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There are incorporated herein by reference the following documents filed
with the Commission (File No. 1-8133) pursuant to Section 13 of the Exchange
Act:
(1) Annual Report on Form 10-K for the fiscal year ended December 31, 1994;
and
(2) Quarterly Report on Form 10-Q for the quarter ended March 31, 1995.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Debt Securities offered hereby shall be
deemed to be incorporated by reference into this Prospectus. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, including any beneficial owner, upon written or oral
request of such person, a copy of any or all of the foregoing documents
incorporated herein by reference (other than exhibits to such documents, unless
such exhibits are specifically incorporated by reference in such documents).
Requests should be directed to The First National Bank of Boston, Investor
Services, P.O. Box 9155, Boston, Massachusetts 02205-9155, telephone: (800)
882-6637.
THE COMPANY
Xerox Credit Corporation, a Delaware corporation (together with its
subsidiaries herein called the "Company" unless the context otherwise requires),
was organized on June 23, 1980. All of the Company's outstanding capital stock
is owned by Xerox Financial Services, Inc. ("XFSI"), a holding company, which is
wholly owned by Xerox Corporation (Xerox Corporation together with its
subsidiaries herein called "Xerox" unless the context otherwise requires). The
Company's principal executive offices are located at 100 First Stamford Place,
P.O. Box 10347, Stamford, Connecticut 06904-2347 and its telephone number is
(203) 325-6600.
2
<PAGE>
The Company is engaged in financing long-term accounts receivable arising
out of equipment sales by Xerox to its document processing customers throughout
the United States. Contract terms on these accounts receivable range primarily
from two to five years. The Company discontinued its real-estate development and
related real-estate financing businesses in the first quarter of 1990. In the
fourth quarter of 1990, the Company discontinued its third-party financing and
leasing businesses.
Pursuant to a Support Agreement between Xerox and the Company, Xerox
has agreed to retain ownership of 100% of the voting capital stock of the
Company and make periodic payments to the Company to the extent necessary to
insure that its annual pre-tax earnings available for fixed charges equal at
least 1.25 times its fixed charges.
RATIO OF EARNINGS TO FIXED CHARGES OF THE COMPANY
The following table shows the ratio of earnings to fixed charges for the
periods indicated.
<TABLE>
<CAPTION>
Three Months
Ended March 31, Years Ended December 31,
--------------- ---------------------------------------
1995 1994 1994 1993 1992 1991 1990
------ ------ ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges(1) .............. 1.68 1.71 1.73 1.74 1.75 1.82 1.88
</TABLE>
----------
(1) The ratio of earnings to fixed charges has been computed based on the
Company's continuing operations by dividing total earnings available for
fixed charges by total fixed charges. Interest expense has been assigned
to discontinued operations principally on the basis of the relative
amount of gross assets of the discontinued operations. Management
believes that this allocation method is reasonable in light of the amount
of debt specifically assigned to discontinued operations. The
discontinued operations consist of the Company's real-estate development
and related financing operations and its third-party financing and
leasing businesses.
INFORMATION CONCERNING XEROX
Xerox is a global company serving the worldwide document processing
markets. Xerox distributes its products in the Western Hemisphere through
divisions and wholly-owned subsidiaries, in Europe and Africa through companies
in which Xerox has an 80% financial interest and The Rank Organization Plc
("RO") has a 20% financial interest, and in Japan and other areas of the Pacific
Rim, Australia and New Zealand by Fuji Xerox Co. Ltd. ("Fuji Xerox"), an
unconsolidated joint venture, which is equally owned by Fuji Photo Film Company,
Ltd. of Japan and Rank Xerox Limited ("Rank Xerox"). On February 28, 1995, Xerox
paid RO (Pound Sterling)620 million, or approximately U.S. $972 million, for a
40% interest in RO's financial interest in Rank Xerox. The transaction increased
the Xerox financial interest in Rank Xerox to 80% from 67%.
Xerox' Document Processing activities encompass developing, manufacturing,
marketing, servicing and financing a complete range of document processing
products and services designed to make offices around the world more productive.
Xerox believes that documents will play a central role in business, government
and educational organizations far into the future and that efficient processing
of documents offers significant opportunities for productivity improvements.
In December 1993, Xerox announced a restructuring program with the
objectives of continuing to significantly reduce the cost base and to improve
productivity. Xerox expects to reduce its worldwide work force by more than
10,000 employees and to close or consolidate a number of facilities. Xerox
estimates that this program achieved pre-tax cost reductions of approximately
$350 million in 1994, and will achieve approximately $700 million in 1995 and
higher amounts thereafter. Xerox stated, however, that it expected a portion of
these savings to be reinvested to reengineer business processes, to support
expansion in emerging markets, and to mitigate anticipated continued pressure on
gross margins.
To date, the activities associated with the productivity initiatives are on
track towards achieving Xerox' objectives.
In January 1993, Xerox announced its decision to concentrate on the core
Document Processing business and disengage from the Insurance and Other
Financial Services ("IOFS") businesses. Consistent with this objective, The Van
Kampen Merritt Companies, Inc., an investment advisory
3
<PAGE>
organization, and Furman Selz Holding Corporation, an institutional brokerage,
investment banking and management firm, were sold in 1993. In 1994, Shields
Asset Management, Inc. ("Shields"), a Furman Selz subsidiary, and Regent
Investor Services, Incorporated, a Shields subsidiary, were sold. In 1995,
Constitution Re Corporation, Xerox Financial Services Life Insurance Company and
related companies, and Viking Insurance Holdings, Inc. were sold. The ongoing
operations of the Company and the international financing companies that finance
the purchase of Xerox equipment are unaffected by the decision to disengage from
IOFS.
The only continuing Financial Services business is the Insurance segment,
which includes Talegen Holdings, Inc., a holding company of five property and
casualty insurance operating groups and three insurance related service
companies, Ridge Reinsurance Limited and that portion of the XFSI headquarters
costs and interest expense associated with the continuing business activities.
Xerox will continue to implement its strategy for divesting the remaining
insurance business in an orderly and disciplined way.
RATIO OF EARNINGS TO FIXED CHARGES OF XEROX
<TABLE>
<CAPTION>
Three Months
Ended March 31, Years Ended December 31,
-------------- ---------------------------------------
1995 1994 1994 1993* 1992** 1991*** 1990
------ ------ ---- ----- ------ ------- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges(1)(2) ......... 2.21 2.10 2.63 0.71 1.12 1.90 2.07
</TABLE>
----------
(1) The ratio of earnings to fixed charges has been computed based on Xerox'
continuing operations by dividing total earnings available for fixed
charges, excluding capitalized interest, by total fixed charges. Fixed
charges consist of interest, including capitalized interest, and one-third
of rent expense as representative of the interest portion of rentals.
Interest expense has been assigned to discontinued operations principally
on the basis of the relative amount of gross assets of the discontinued
operations. Xerox management believes that this allocation method is
reasonable in light of the debt specifically assigned to discontinued
operations. The discontinued operations consist of Xerox' real-estate
development and related financing operations and its third-party financing
and leasing businesses, and Other Financial Services businesses.
(2) Xerox' ratio of earnings to fixed charges includes the effect of Xerox'
finance subsidiaries which primarily finance Xerox equipment. Financing
businesses, due to their nature, traditionally operate at lower earnings to
fixed charges ratio levels than do non-financial companies.
* In 1993, the ratio of earnings to fixed charges includes the effect of the
$1,373 million before-tax ($813 million after-tax) charge incurred in
connection with the restructuring provision and litigation settlements.
Excluding this charge, the ratio was 2.13. 1993 earnings were inadequate to
cover fixed charges. The coverage deficiency was $283 million.
** In 1992, the ratio of earnings to fixed charges includes the effect of the
$936 million before-tax ($778 million after-tax) charge incurred in
connection with the decision to disengage from Xerox' IOFS businesses.
Excluding this charge, the ratio was 2.05.
*** In 1991, the ratio of earnings to fixed charges includes the effect of the
$175 million before-tax ($101 million after-tax) charge incurred in
connection with the Document Processing work-force reduction. Excluding
this charge, the ratio was 2.08.
4
<PAGE>
USE OF PROCEEDS
Except as otherwise set forth in the applicable Prospectus Supplement, the
net proceeds from the sale of the Debt Securities will be added to the general
funds of the Company and will be used for general corporate purposes. The
approximate amount of such net proceeds will be specified in the applicable
Prospectus Supplement and will depend upon the type, aggregate principal amount
and initial offering price of the particular series of Debt Securities to be
determined at the time of sale.
DESCRIPTION OF THE DEBT SECURITIES
The Debt Securities are to be issued in one or more series under an
indenture dated as of August 1, 1995, between the Company and The First National
Bank of Boston, as Trustee (the "Trustee") (as may be amended, supplemented or
modified from time to time, the "Indenture"). A copy of the Indenture is filed
as an exhibit to the Registration Statement or incorporated herein by reference.
The following summaries of certain provisions of the Indenture do not purport to
be complete and are subject to, and are qualified in their entirety by reference
to, all the provisions of the Indenture and the provisions of the Trust
Indenture Act of 1939, as amended (the "TIA"). Capitalized terms used but not
defined herein shall have the meanings assigned to such terms in the Indenture.
References in parentheticals below to sections or articles are to Sections or
Articles of the Indenture.
The Indenture contains no covenants or provisions which may afford holders
of Debt Securities protection in the event of a highly leveraged transaction by
the Company. No such transaction is contemplated. See "The Company" on pages 2
and 3 of this Prospectus concerning Xerox' obligation to retain ownership of
100% of the voting capital stock of the Company and to make support payments to
the Company under certain circumstances.
General
The Indenture does not limit the aggregate principal amount of Debt
Securities that may be issued thereunder. The Debt Securities may be issued in
one or more series as may be authorized from time to time by the Company.
Reference is made to the applicable Prospectus Supplement for the following
terms of the Debt Securities: (1) the title and aggregate principal amount of
such Debt Securities; (2) the percentage or percentages of their principal
amount at which such Debt Securities will be issued; (3) the date or dates on
which such Debt Securities will mature; (4) the rate or rates (which may be
fixed or variable) or the method of determination thereof, at which such Debt
Securities will bear interest, if any; (5) the dates on which such interest, if
any, shall accrue or the method by which such dates shall be determined and the
dates on which such interest, if any, will be payable; (6) the terms for
redemption or early repayment, if any; (7) the denominations in which such Debt
Securities are authorized to be issued; (8) whether such Debt Securities are
issuable in registered and/or bearer form; (9) whether such Debt Securities are
to be issued as Discount Securities (as defined below) and the amount of
discount with which such Debt Securities will be issued; (10) whether such Debt
Securities are to be issued in whole or in part in the form of one or more
Global Securities and, if so, the identity of the Depositary (as defined below)
for such Global Security or Securities; (11) if a temporary Debt Security is to
be issued with respect to such series, whether any interest thereon payable on
an Interest Payment Date prior to the issuance of a definitive Debt Security of
the series will be credited to the account of the Persons entitled thereto on
such Interest Payment Date; (12) if a temporary Global Security is to be issued
with respect to such series, the terms upon which beneficial interests in such
temporary Global Security may be exchanged in whole or in part for beneficial
interests in a definitive Global Security or for individual Debt Securities of
the series and the terms upon which beneficial interests in a definitive Global
Security, if any, may be exchanged for individual Debt Securities of the series;
(13) the currency, currencies or currency units in which the purchase price for,
the principal of and any premium and any interest on the Debt Securities may be
payable; (14) if the currency, currencies or currency units in which the
purchase price for, the principal of and any premium and any interest on the
Debt Securities may be payable is at the purchaser's election, the time period
within which and the manner in which and the terms and conditions upon which
such election may be made; (15) the securities exchange or exchanges, if any, on
which the Debt Securities will be listed; (16) whether any underwriter(s) will
act as market maker(s) for the Debt Securities; (17) if the Debt
5
<PAGE>
Securities are listed on a securities exchange and no underwriter(s) intends to
make a market in the Debt Securities, the nature of the exchange market for the
Debt Securities; (18) if the Debt Securities are not listed on a securities
exchange, the extent to which a secondary market is expected to develop; (19)
any right on the part of the holders of such Debt Securities to require the
repurchase thereof by the Company; and (20) any additional terms (which terms
shall not be inconsistent with the provisions of the Indenture).
One or more series of Debt Securities may be sold at a substantial discount
below their stated principal amount, bearing no interest or interest at a rate
which at the time of issuance is below market rates ("Discount Securities"). One
or more series of Debt Securities may be variable rate debt securities that may
be exchangeable for fixed rate debt securities. Federal income tax consequences
and special considerations applicable to any such series will be described in
the Prospectus Supplement relating thereto.
Debt Securities may be issued, from time to time, with the principal amount
payable on any principal payment date, or the amount of interest payable on an
interest payment date, to be determined by reference to one or more currency
exchange rates, commodity prices, equity indices or other factors. Holders of
such Debt Securities may receive a principal amount on any principal date, or a
payment of interest on any interest payment date, that is greater than or less
than the amount of principal or interest otherwise payable on such dates,
depending upon the value on such dates of the applicable currencies,
commodities, equity indices or other factors. Information as to the methods for
determining the amount of principal or interest payable on any date, the
currencies, commodities, equity indices or other factors to which the amount
payable on such date is linked and certain additional Federal income tax
considerations will be set forth in the Prospectus Supplement relating thereto.
As used herein, the term Debt Securities shall include Debt Securities
denominated in U.S. dollars or, at the option of the Company if so specified in
the applicable Prospectus Supplement, in any other freely transferable currency
or units based on or relating to foreign currencies, including ECU.
If a Prospectus Supplement specifies that Debt Securities are denominated
in a currency or currency unit other than U.S. dollars, such Prospectus
Supplement shall also specify the denominations in which such Debt Securities
will be issued and the coin or currency in which the principal, premium, if any,
and interest, if any, on such Debt Securities, will be payable, which may be
U.S. dollars based upon the exchange rate for such other currency existing on or
about the time a payment is due.
The Debt Securities are unsecured and will rank pari passu with all other
unsecured and unsubordinated debt of the Company.
Unless otherwise indicated in the applicable Prospectus Supplement, the
Debt Securities will be issued in fully registered form without coupons in
denominations of $1,000 and any integral multiple thereof. (Section 3.02)
Subject to the limitations provided in the Indenture and in the Prospectus
Supplement relating thereto, Debt Securities which are issued in registered form
may be transferred or exchanged at the office of the Company to be maintained in
the Borough of Manhattan, The City of New York or at the Principal Corporate
Trust Office of the Trustee, without the payment of any service charge, other
than any tax or other governmental charge payable in connection therewith.
(Section 3.05)
Global Securities
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Securities that will be deposited with, or on behalf
of, a depositary (the "Depositary") identified in the Prospectus Supplement
relating to such series. Global Securities will be issued in registered form and
in either temporary or definitive form. Unless and until it is exchanged in
whole or in part for the individual Debt Securities represented thereby, a
Global Security may not be transferred except as a whole by the Depositary for
such Global Security to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by such
Depositary or any nominee to a successor of such Depositary or a nominee of such
successor. (Sections 3.01, 3.03 and 3.05)
The specific terms of the depositary arrangement with respect to any Debt
Securities of a series and the rights of and limitations upon owners of
beneficial interests in a Global Security representing a series of
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<PAGE>
Debt Securities will be described in the Prospectus Supplement relating to such
series. The Company anticipates that the following provisions will generally
apply to depositary arrangements.
Upon the issuance of a Global Security, the Depositary for such Global
Security or its nominee will credit, on its book-entry registration and transfer
system, the respective principal amounts of the individual Debt Securities
represented by such Global Security to the accounts of persons that have
accounts with such Depositary. Such accounts shall be designated by the dealers,
underwriters or agents with respect to such Debt Securities or by the Company if
such Debt Securities are offered and sold directly by the Company. Ownership of
beneficial interests in a Global Security will be limited to persons that have
accounts with the applicable Depositary ("participants") or persons that may
hold interests through participants. Ownership of beneficial interests in such
Global Security will be shown on, and the transfer of that ownership will be
effected only through, records maintained by the applicable Depositary or its
nominee (with respect to interests of participants) and the records of
participants (with respect to interests of persons other than participants). The
laws of some states require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and such laws may
impair the ability to transfer beneficial interests in Global Security.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
indenture governing such Debt Securities. Except as provided below, owners of
beneficial interests in a Global Security will not be entitled to have any of
the individual Debt Securities of the series represented by such Global Security
registered in their names, will not receive or be entitled to receive physical
delivery of any such Debt Securities of such series in definitive form and will
not be considered the owners or holders thereof under the indenture governing
such Debt Securities.
Payments of principal of, premium, if any, and interest, if any, on
individual Debt Securities represented by a Global Security registered in the
name of a Depositary or its nominee will be made to the Depositary or its
nominee, as the case may be, as the registered owner of the Global Security
representing such Debt Securities. Neither the Company, the Trustee for such
Debt Securities, any paying agent (a "Paying Agent"), nor the Registrar for such
Debt Securities will have any responsibility or liability for any aspect of the
records relating to or payments made by the Depositary or any participants on
account of beneficial ownership interests of the Global Security for such Debt
Securities or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
The Company expects that the Depositary for a series of Debt Securities or
its nominee, upon receipt of any payment of principal, premium or interest in
respect of a permanent Global Security representing any of such Debt Securities,
immediately will credit participants' accounts with payments in amounts
proportionate to their respective beneficial interests in the principal amount
of such Global Security for such Debt Securities as shown on the records of such
Depositary or its nominee. The Company also expects that payments by
participants to owners of beneficial interests in such Global Security held
through such participants will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts of
customers in bearer form or registered in "street name". Such payments will be
the responsibility of such participants.
If the Depositary for a series of Debt Securities is at any time unwilling,
unable or ineligible to continue as depositary and a successor depositary is not
appointed by the Company within 90 days, the Company will issue individual Debt
Securities of such series in exchange for the Global Security or Securities
representing such series of Debt Securities. In addition, the Company may at any
time and in its sole discretion, subject to any limitations described in the
Prospectus Supplement relating to such Debt Securities, determine not to have
any Debt Securities of a series represented by one or more Global Securities,
and, in such event, will issue individual Debt Securities of such series in
exchange for the Global Security or Securities representing such series of Debt
Securities. Further, if the Company so specifies with respect to the Debt
Securities of a series, an owner of a beneficial interest in a Global Security
representing Debt Securities of such series may, on terms acceptable to the
Company, the Trustee, and the Depositary for such Global Security, receive
individual Debt Securities of such series in exchange for such beneficial
interests, subject to any limitations described in the Prospectus Supplement
relating to
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such Debt Securities. In any such instance, an owner of a beneficial interest
in a Global Security will be entitled to physical delivery of individual Debt
Securities of the series represented by such Global Security equal in principal
amount to such beneficial interest and to have such Debt Securities registered
in its name. Individual Debt Securities of such series so issued will be issued
in denominations, unless otherwise specified by the Company, of $1,000 and
integral multiples thereof.
Covenants
Limitations on Liens. So long as any of the Debt Securities are
outstanding, the Company will not create or suffer to exist, or permit any of
its Subsidiaries to create or suffer to exist, any lien, security interest or
other charge or encumbrance, or any other type of preferential arrangement, upon
or with respect to any of its properties (other than "margin stock" as that term
is defined in Regulation U issued by the Board of Governors of the Federal
Reserve System), whether now owned or hereafter acquired, or assign, or permit
any of its Subsidiaries to assign, any right to receive income, in each case to
secure any Debt without making effective provision whereby the Debt Securities
(together with, if the Company shall so determine, any other Debt of the Company
or such Subsidiary then existing or thereafter created which is not subordinate
to the Debt Securities) shall be equally and ratably secured with the
indebtedness or obligations secured by such security; provided, however, that
the Company or its Subsidiaries may create or suffer to exist any lien, security
interest, charge, encumbrance or preferential arrangement of any kind upon any
of the properties or assets of the Company or its Subsidiaries to secure any
Debt or Debts in an aggregate amount at any time outstanding not greater than
20% of the Consolidated Net Worth of the Company; and provided further that the
foregoing restrictions shall not apply to any of the following:
(1) deposits, liens or pledges arising in the ordinary course of
business to enable the Company or any of its Subsidiaries to exercise any
privilege or license or to secure payments of workers' compensation or
unemployment insurance, or to secure the performance of bids, tenders,
contracts (other than for the payment of money) or statutory landlords'
liens or to secure public or statutory obligations or surety, stay or
appeal bonds, or other similar deposits or pledges made in the ordinary
course of business; (2) liens imposed by law or other similar liens, if
arising in the ordinary course of business, such as mechanic's,
materialman's, workman's, repairman's or carrier's liens, or deposits or
pledges in the ordinary course of business to obtain the release of such
liens; (3) liens arising out of judgments or awards against the Company or
any of its Subsidiaries in an aggregate amount not to exceed the greater of
(a) 15% of the Consolidated Net Worth of Xerox or (b) the minimum amount
which, if subtracted from such Consolidated Net Worth, would reduce such
Consolidated Net Worth below $3.2 billion and with respect to which the
Company or such Subsidiary shall in good faith be prosecuting an appeal or
proceeding for review, or liens for the purpose of obtaining a stay or
discharge in the course of any legal proceedings; (4) liens for taxes if
such taxes are not delinquent or thereafter can be paid without penalty, or
are being contested in good faith by appropriate proceedings, or minor
survey exceptions or minor encumbrances, easements or restrictions which do
not in the aggregate materially detract from the value of the property so
encumbered or restricted or materially impair their use in the operation of
the business of the Company or Subsidiary owning such property; (5) liens
in favor of any government or department or agency thereof or in favor of a
prime contractor under a government contract and resulting from the
acceptance of progress or partial payments under government contracts or
subcontracts thereunder; (6) liens, security interests, charges,
encumbrances, preferential arrangements and assignments of income existing
on the date of the Indenture; (7) purchase money liens or security
interests in property acquired or held by the Company or any Subsidiary
created in the ordinary course of business to secure the purchase price
thereof or indebtedness incurred to finance the acquisition thereof; (8)
liens or security interests existing on property at the time of its
acquisition; (9) liens incurred (no matter when created) in connection with
the Company or any Subsidiary engaging in leveraged or single investor
lease transactions, provided that the instrument creating or evidencing any
borrowings secured by such lien shall provide that such borrowings are
payable solely out of the income and proceeds of the property subject to
such lien and are not a corporate obligation of the Company or any such
Subsidiary; (10) the replacement, extension or renewal of any of the
foregoing; and (11) liens on any assets of the Company or any Subsidiary of
up to $500,000,000 incurred in connection with the sale or assignment
8
<PAGE>
of assets of the Company or such Subsidiary for cash where the proceeds
are applied to repayment of Debt of the Company or such Subsidiary and/or
invested by the Company or such Subsidiary as assets which would be
reflected as receivables on the balance sheet of the Company or such
Subsidiary. (Section 5.06)
"Consolidated Net Worth" means, at any time, as to a given entity, the sum
of the amounts appearing on the latest consolidated balance sheet of such entity
and its Subsidiaries, prepared in accordance with generally accepted accounting
principles consistently applied, as (i) the par or stated value of all
outstanding capital stock (including preferred stock), (ii) capital paid-in and
earned surplus or earnings retained in the business plus or minus cumulative
translation adjustments, (iii) any unappropriated surplus reserves, and (iv) any
net unrealized appreciation of equity investments; and, in the case of Xerox,
there shall be added thereto the sum of $600,000,000.
"Debt" means (i) indebtedness for borrowed money or for the deferred
purchase price of property or services (excluding trade accounts payable
incurred in the ordinary course with a maturity of not greater than 90 days),
(ii) obligations as lessee under capital leases, (iii) obligations under
guaranties in respect of, and obligations (contingent or otherwise) to purchase
or otherwise acquire, or otherwise to insure a creditor against loss in respect
of, obligations of others of the kinds referred to in clause (i) or (ii), and
(iv) the amount of unfunded benefit liabilities as defined in Section
4001(a)(18) of the Employee Retirement Income Security Act of 1974, as amended
from time to time, and any successor statute or statutes, under plans covered by
Title IV thereof.
"Subsidiary" means any corporation of which more than 50% of the
outstanding capital stock having ordinary voting power to elect a majority of
the Board of Directors of such corporation is at the time directly or indirectly
owned by the Company and which is organized and existing under the laws of any
State of the United States or the District of Columbia.
Consolidation, Merger or Sale of Assets of the Company. The Company shall
not consolidate with or merge into any other corporation or sell its assets
substantially as an entirety, unless (1) the corporation formed by such
consolidation or into which the Company is merged or the corporation which
acquires its assets is Xerox or a corporation all of the voting capital stock of
which is directly or indirectly owned by Xerox, is organized in the United
States, and expressly assumes the due and punctual payment of the principal of
and interest on all the Debt Securities and the performance of every covenant of
the Indenture on the part of the Company and (2) immediately after giving effect
to such transaction, no Event of Default, and no event which, after notice or
lapse of time, or both, would become an Event of Default, shall have happened
and be continuing. Upon any such consolidation, merger or sale, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such sale is made shall succeed to, and be substituted for, the Company
under the Indenture. (Section 10.2)
Events of Default, Notice and Waiver
The Indenture provides that, if an Event of Default specified therein in
respect of any series of Debt Securities shall have happened and be continuing,
either the Trustee or the Holders of not less than 25% in principal amount of
the outstanding Debt Securities of such series may declare the principal amount
(or a portion thereof in the case of certain Debt Securities issued with an
original issue discount) of all the Debt Securities of such series to be
immediately due and payable. (Section 7.02)
Events of Default in respect of any series are defined in the Indenture as
being: default for 30 days in payment of any interest instalment when due;
default in payment of principal of or premium, if any, (including accrued
original issue discount, in the case of certain Debt Securities issued with the
original issue discount) on, or any sinking fund payment or analogous obligation
with respect to, Debt Securities of such series when due; default for 90 days
after notice to the Company by the Trustee or by the Holders of at least 25% in
principal amount of the outstanding Debt Securities of such series in
performance of any covenant in the Indenture in respect of such series; and
certain events of bankruptcy, insolvency and reorganization and any other Event
of Default provided for with respect to such series. (Section 7.01)
The TIA provides that the Trustee will, within 90 days after the occurrence
of a default in respect of any series of Debt Securities, give to the Holders of
such series notice of all uncured and unwaived defaults
9
<PAGE>
known to it; provided that, except in the case of default in the payment of
principal of, premium, if any, or interest on, or any sinking fund instaIment or
analogous obligation with respect to, any of the Debt Securities of such series,
the Trustee will be protected in withholding such notice if it in good faith
determines that the withholding of such notice is in the interest of the Holders
of such series. The term "default" for the purpose of this provision means any
event which is, or after notice or lapse of time or both would become, an Event
of Default with respect to Debt Securities of such series.
The Indenture provides that the Holders of a majority in principal amount
of the outstanding Debt Securities of any series may, subject to certain
limitations, direct the time, method and place of conducting proceedings for
remedies available to the Trustee, or exercising any trust or power conferred on
the Trustee, in respect of such series. (Section 7.11)
The Indenture contains provisions entitling the Trustee, subject to the
duty of the Trustee during an Event of Default in respect to any series of Debt
Securities to act with the required standard of care, to be indemnified by the
Holders of the Debt Securities of such series before proceeding to exercise any
right or power under the Indenture at the request of Securityholders of such
series. (Section 8.01)
The Indenture includes covenants that the Company will file annually with
the Trustee a certificate of no default, or specifying any default that exists.
(Section 5.04)
In certain cases, the Holders of a majority in principal amount of the
outstanding Debt Securities of a series may, on behalf of the Holders of all
Debt Securities of such series, waive any past default or Event of Default, or
compliance with certain provisions of the Indenture, except a default not
theretofore cured in payment of the principal of, premium, if any, or any
interest on, or any sinking fund instalment or analogous obligation with respect
to, any of the Debt Securities of such series and compliance with certain
covenants. (Sections 5.07, 7.02 and 7.12)
The Indenture provides that for purposes of calculating the principal
amount of Debt Securities of any series denominated in a foreign currency or in
units based on or relating to currencies thereunder, such principal amount shall
be deemed to be that amount of United States dollars that could be obtained for
such principal amount on the basis of a spot rate of exchange, specified to the
Trustee by the Company in an Officers' Certificate, for such currency or
currency units into United States dollars as of the date of any such
calculation. (Section 1.15)
Modification of the Indenture
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of a majority in principal amount of the
outstanding Debt Securities of the affected series, to execute supplemental
indentures adding any provisions to or changing or eliminating any of the
provisions of the Indenture or modifying the rights of the Holders of Debt
Securities of such series, except that no such supplemental indenture may,
without the consent of the Holders of all of the affected Debt Securities, among
other things, change the maturity of any Debt Securities, reduce the principal
amount thereof or any premium thereon, reduce the rate or extend the time of
payment of interest thereon, change the method of computing the amount of
principal thereof on any date or reduce the aforesaid percentage of Debt
Securities, the consent of the Holders of which is required for any such
supplemental indenture.(Section 9.02)
Satisfaction and Discharge of the Indentures; Defeasance
The Indenture shall generally cease to be of any further effect with
respect to a series of Debt Securities if (a) the Company has delivered to the
Trustee for cancellation all such Debt Securities of such series (with certain
limited exceptions) or (b) all such Debt Securities of such series not
theretofore delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year or are
to be called for redemption within one year, and the Company shall have
deposited with the Trustee as trust funds the entire amount sufficient to pay at
maturity or upon redemption all such Debt Securities of such series (and if, in
either case, the Company shall also pay or cause to be paid all other sums
payable under the Indenture by the Company in respect of all such Debt
Securities of such series and deliver to the Trustee an officers' certificate
and an opinion of counsel, each stating that all conditions precedent in the
Indenture have been complied with). (Section 11.01)
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The Trustee shall hold in trust all money deposited with it as described
above and shall apply the deposited money, in accordance with the provisions of
the Debt Securities of the defeased series and the Indenture, to the payment,
either directly or through any Paying Agent, as the Trustee may determine, to
the persons entitled thereto, of principal, premium, if any, and interest, if
any, for whose payment such money has been deposited with the Trustee. (Section
11.02)
Concerning the Trustee
The Company may from time to time maintain credit facilities, and have
other customary banking relationships, with The First National Bank of Boston,
the Trustee under the Indenture.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities offered hereby in any one or more
of the following ways:(1) directly to investors, (2) to investors through
agents, (3) to broker-dealers as principals, (4) through underwriting syndicates
led by one or more managing underwriters as the Company may select from time to
time, or (5) through one or more underwriters acting alone.
If an underwriter or underwriters are utilized in the sale, the specific
managing underwriter or underwriters with respect to the offer and sale of the
Offered Debt Securities are set forth on the cover of the Prospectus Supplement
relating to such Offered Debt Securities and the members of the underwriting
syndicate, if any, are named in such Prospectus Supplement.
Sales of the Offered Debt Securities by underwriters may be in negotiated
transactions, at a fixed offering price or at various prices determined at the
time of sale. The Prospectus Supplement describes the method of reoffering by
the underwriters. The Prospectus Supplement also describes the discounts and
commissions to be allowed or paid to the underwriters, if any, all other items
constituting underwriting compensation, the discounts and commissions to be
allowed or paid to dealers, if any, and the exchanges, if any, on which the Debt
Securities offered thereby will be listed.
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters to solicit offers by certain institutions to purchase Debt
Securities from the Company at the price set forth in the Prospectus Supplement
pursuant to Delayed Delivery Contracts providing for payment and delivery at a
future date.
If any Debt Securities are sold pursuant to an Underwriting Agreement, the
several underwriters will agree, subject to terms and conditions set forth
therein, unless the Prospectus Supplement provides otherwise, to purchase all
the Debt Securities offered by the accompanying Prospectus Supplement if any of
such Debt Securities are purchased and, in the event of default by any
underwriter, in certain circumstances, the purchase commitments may be increased
or the Underwriting Agreement may be terminated.
Offers to purchase Debt Securities may be solicited directly by the Company
or by agents designated by the Company from time to time. Any such agent, who
may be deemed to be an underwriter as the term is defined in the Securities Act
of 1933 (the "Act"), involved in the offer or sale of the Offered Debt
Securities in respect of which this Prospectus is delivered will be named, and
any commissions payable by the Company to such agent set forth, in a Prospectus
Supplement. Unless otherwise indicated in such Prospectus Supplement, any such
agent will be acting on a best efforts basis.
If a broker-dealer is utilized in the sale of the Offered Debt Securities
in respect of which this Prospectus is delivered, the Company will sell such
Offered Debt Securities to the dealer, as principal. The dealer may then resell
such Offered Debt Securities to the public at varying prices to be determined by
such dealer at the time of resale.
Agents, broker-dealers or underwriters may be entitled under agreements
which may be entered into with the Company to indemnification or contribution by
the Company in respect of certain civil liabilities, including liabilities under
the Act, and may be customers of, engage in transactions with or perform
services for the Company in the ordinary course of business.
The place and time of delivery for the Offered Debt Securities in respect
of which this Prospectus is delivered are set forth in the accompanying
Prospectus Supplement.
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The Offered Debt Securities may or may not be listed on a national
securities exchange. No assurances can be given that there will be a market for
the Offered Debt Securities.
LEGAL OPINIONS
The validity of the Debt Securities to be offered hereby will be passed
upon for the Company by Martin S. Wagner, Esq., Associate General Counsel,
Corporate, Finance and Ventures of Xerox Corporation and for the underwriters,
agents or dealers, as the case may be, by Cravath, Swaine & Moore, Worldwide
Plaza, 825 Eighth Avenue, New York, New York.
EXPERTS
The consolidated financial statements and schedule of the Company and
consolidated subsidiaries included in the Company's Annual Report on Form 10-K
as of December 31, 1994 and 1993, and for each of the years in the three-year
period ended December 31, 1994, incorporated by reference herein and elsewhere
in the Registration Statement, have been incorporated by reference herein and in
the Registration Statement in reliance upon the report set forth therein of KPMG
Peat Marwick LLP, independent certified public accountants, incorporated by
reference herein, and upon the authority of said firm as experts in accounting
and auditing. The report of KPMG Peat Marwick LLP covering the December 31, 1994
consolidated financial statements and schedule refers to the Company's changes
in its methods of accounting for income taxes and postretirement benefits other
than pensions in 1992.
12
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.*
The following statement sets forth the expenses, other than underwriting
discounts and commissions, to be borne by the Company in connection with the
distribution of the Debt Securities:
Securities and Exchange Commission Registration Fee ............. $343,925
Printing and Engraving .......................................... 60,000
Fees of Company's Independent Auditors .......................... 55,000
Blue Sky Fees and Expenses (including legal fees and
disbursements) ................................................ 15,000
Trustee Fees .................................................... 50,000
Rating Agency Fees .............................................. 220,000
Miscellaneous Expenses .......................................... -0-
--------
Total ......................................................... $743,925
========
----------
* The foregoing expenses, other than the Securities and Exchange Commission
Registration Fee, are estimated.
Item 15. Indemnification of Directors and Officers.
Reference is made to Section 145 of the General Corporation Law of
Delaware.
Item 16. Exhibits.
(1)(a) --Form of Underwriting Agreement, incorporated by reference to
Exhibit (1)(a) to Post-Effective Amendment No. 1 to the Company's
Registration Statement on Form S-3, Registration No. 33-43470.
(1)(b) --Form of Selling Agency Agreement, incorporated by reference to
Exhibit (1)(b) to Post-Effective Amendment No. 1 to the Company's
Registration Statement on Form S-3, Registration No. 33-43470. The
form of Selling Agency Agreement is hereby amended, effective
August 1, 1995, by adding additional agents and replacing all
references to "U.S. $525,000,000" and "Series B" notes with "U.S.
$1,000,000,000" and "Series E" notes, respectively.
(4)(a) --Form of Indenture.
(4)(b) --Form of Debt Security, incorporated by reference to Exhibit (4)(b)
to the Company's Registration Statement on Form S-3, Registration
No. 2-72851. The Form of Debt Security is hereby modified,
effective as of August 1, 1995, by replacing all references to
Chemical Bank with The First National Bank of Boston.
(4)(c) --Form of Debt Security, incorporated by reference to Exhibit
(4)(c) to the Company's Registration Statement on Form S-3,
Registration No. 2-72851. The Form of Debt Security is hereby
modified, effective as of August 1, 1995, by replacing all
references to Chemical Bank with The First National Bank of
Boston.
(4)(d) --Form of Debt Security, incorporated by reference to Exhibit (4)(d)
to the Company's Registration Statement on Form S-3, Registration
No. 2-72851. The Form of Debt Security is hereby modified,
effective as of August 1, 1995, by replacing all references to
Chemical Bank with The First National Bank of Boston.
II-1
<PAGE>
(4)(e) --Form of Debt Security, incorporated by reference to Exhibit (4)(e)
to the Company's Registration Statement on Form S-3, Registration
No. 2-72851. The Form of Debt Security is hereby modified,
effective as of August 1,1995, by replacing all references to
Chemical Bank with The First National Bank of Boston.
(4)(f) --Form of Debt Security, incorporated by reference to Exhibit (4)(f)
to the Company's Registration Statement on Form S-3, Registration
No. 2-72851. The Form of Debt Security is hereby modified,
effective as of August 1, 1995, by replacing all references to
Chemical Bank with The First National Bank of Boston.
(4)(g) --Form of Debt Security, incorporated by reference to Exhibit (4)
to the Company's Current Report on Form 8-K dated September 29,
1983. The Form of Debt Security is hereby modified, effective as
of August 1, 1995, by replacing all references to Chemical Bank
with The First National Bank of Boston.
(4)(h) --Form of Debt Security, incorporated by reference to Exhibit (4)
to the Company's Current Report on Form 8-K dated March 13, 1984.
The Form of Debt Security is hereby modified, effective as of
August 1, 1995, by replacing all references to Chemical Bank with
The First National Bank of Boston.
(4)(i) --Form of Debt Security, incorporated by reference to Exhibit (4)
to the Company's Current Report on Form 8-K dated May 2, 1985. The
Form of Debt Security is hereby modified, effective as of August
1, 1995, by replacing all references to The Bank of New York with
The First National Bank of Boston.
(4)(j) --Form of Debt Security, incorporated by reference to Exhibit (4)
to the Company's Current Report on Form 8-K dated January 27,
1987. The Form of Debt Security is hereby modified, effective as
of August 1, 1995, by replacing all references to The Bank of New
York with The First National Bank of Boston.
(4)(k) --Additional Forms of Debt Securities incorporated by reference
to the Company's subsequently filed reports on Form 8-K.
(5) --Opinion of Martin S. Wagner, Esq., as to legality of the Debt
Securities.
(12)(a) --Computation of ratio of earnings to fixed charges of the Company.
(b) --Computation of ratio of earnings to fixed charges of Xerox.
(23)(a) --Consent of Independent Auditors (see page II-5).
(b) --Consent of Martin S. Wagner, Esq. (see Exhibit 5).
(c) --Consent of Ivins, Phillips & Barker, Chartered, special tax
counsel to the Company.
(24)(a) --Certified Resolution.
(b) --Power of Attorney.
(25) --Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 on Form T-1 of The First National Bank of
Boston to act as Trustee under the Indenture.
II-2
<PAGE>
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales of the
securities registered hereby are being made, a post-effective amendment to
this registration statement (i) to include any prospectus required by
section 10(a)(3) of the Securities Act of 1933 (the "Act"); (ii) to reflect
in the prospectus any facts or events arising after the effective date of
the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental
change in the information set forth in the registration statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant
to section 13 or section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the Act,
each filing of the registrant's annual report pursuant to section 13(a) or
section 15(d) of the Securities Exchange Act of 1934 that is incorporated
by reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(5) That, for purposes of determining any liability under the Act, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(6) That, for the purpose of determining any liability under the Act,
each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the provisions described under Item 15 above, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-3
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Stamford, State of Connecticut, on the 1st day of
August, 1995.
XEROX CREDIT CORPORATION
(Registrant)
By: Stuart B. Ross*
(Chairman, President and Chief
Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities indicated on May 6, 1994.
Signature Title
Principal Executive Officer:
STUART B. ROSS* Chairman, President, Chief Executive
Officer and Director
Principal Financial Officer:
DONALD R. ALTIERI* Vice President, Treasurer, Chief
Financial Officer and Director
Principal Accounting Officer:
DONALD R. ALTIERI* Acting Controller
Directors:
EUNICE M. FILTER*
DAVID R. MCLELLAN*
*By: MARTIN S. WAGNER
(Martin S. Wagner,
Attorney-in-Fact)
II-4
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CONSENT OF INDEPENDENT AUDITORS
Board of Directors
Xerox Credit Corporation:
We consent to the use of our report incorporated herein by reference and to
the reference to our firm under the heading "Experts" in the Prospectus. Our
report refers to the Company's changes in its methods of accounting for income
taxes and postretirement benefits other than pensions in 1992.
KPMG PEAT MARWICK LLP
Stamford, Connecticut
August 1, 1995
II-5
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EXHIBIT INDEX
(1)(a) --Form of Underwriting Agreement, incorporated by reference to Exhibit
(1)(a) to Post-Effective Amendment No. 1 to the Company's
Registration Statement on Form S-3, Registration No. 33-43470.
(1)(b) --Form of Selling Agency Agreement, incorporated by reference to
Exhibit (1)(b) to Post-Effective Amendment No. 1 to the Company's
Registration Statement on Form S-3, Registration No. 33-43470. The
form of Selling Agency Agreement is hereby amended, effective August
1, 1995, by adding additional agents and replacing all references to
"U.S. $525,000,000" and "Series B" notes with "U.S. $1,000,000,000"
and "Series E" notes, respectively.
(4)(a) --Form of Indenture.
(4)(b) --Form of Debt Security, incorporated by reference to Exhibit (4)(b)
to the Company's Registration Statement on Form S-3, Registration No.
2-72851. The Form of Debt Security is hereby modified, effective as
of August 1, 1995, by replacing all references to Chemical Bank with
The First National Bank of Boston.
(4)(c) --Form of Debt Security, incorporated by reference to Exhibit (4)(c)
to the Company's Registration Statement on Form S-3, Registration No.
2-72851. The Form of Debt Security is hereby modified, effective as
of August 1, 1995, by replacing all references to Chemical Bank with
The First National Bank of Boston.
(4)(d) --Form of Debt Security, incorporated by reference to Exhibit (4)(d)
to the Company's Registration Statement on Form S-3, Registration No.
2-72851. The Form of Debt Security is hereby modified, effective as
of August 1, 1995, by replacing all references to Chemical Bank with
The First National Bank of Boston.
(4)(e) --Form of Debt Security, incorporated by reference to Exhibit (4)(e)
to the Company's Registration Statement on Form S-3, Registration No.
2-72851. The Form of Debt Security is hereby modified, effective as
of August 1, 1995, by replacing all references to Chemical Bank with
The First National Bank of Boston.
(4)(f) --Form of Debt Security, incorporated by reference to Exhibit (4)(f)
to the Company's Registration Statement on Form S-3, Registration No.
2-72851. The Form of Debt Security is hereby modified, effective as
of August 1, 1995, by replacing all references to Chemical Bank with
The First National Bank of Boston.
(4)(g) --Form of Debt Security, incorporated by reference to Exhibit (4) to
the Company's Current Report on Form 8-K dated September 29, 1983.
The Form of Debt Security is hereby modified, effective as of August
1, 1995, by replacing all references to Chemical Bank with The First
National Bank of Boston.
(4)(h) --Form of Debt Security, incorporated by reference to Exhibit (4) to
the Company's Current Report on Form 8-K dated March 13, 1984. The
Form of Debt Security is hereby modified, effective as of August 1,
1995, by replacing all references to Chemical Bank with The First
National Bank of Boston.
(4)(i) --Form of Debt Security, incorporated by reference to Exhibit (4)
to the Company's Current Report on Form 8-K dated May 2, 1985. The
Form of Debt Security is hereby modified, effective as of August 1,
1995, by replacing all references to the Bank of New York with The
First National Bank of Boston.
<PAGE>
(4)(j) --Form of Debt Security, incorporated by reference to Exhibit (4)
to the Company's Current Report on Form 8-K dated January 27, 1987.
The Form of Debt Security is hereby modified, effective as of August
1, 1995, by replacing all references to The Bank of New York with The
First National Bank of Boston.
(4)(k) --Additional Forms of Debt Securities incorporated by reference to the
Company's subsequently filed reports on Form 8-K.
(5) --Opinion of Martin S. Wagner, Esq., as to legality of the Debt
Securities.
(12)(a) --Computation of ratio of earnings to fixed charges of the Company.
(b) --Computation of ratio of earnings to fixed charges of Xerox.
(23)(a) --Consent of Independent Auditors (see page II-5).
(b) --Consent of Martin S. Wagner, Esq. (see Exhibit 5).
(c) --Consent of Ivins, Phillips & Barker, Chartered, special tax counsel
to the Company.
(24)(a) --Certified Resolution.
(b) --Power of Attorney.
(25) --Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939 on Form T-1 of The First National Bank of Boston to act
as Trustee under the Indenture.
EXHIBIT 4(a)
XEROX CREDIT CORPORATION
and
________________________
Trustee
------------------------
Indenture
Dated as of__________
________________________
<PAGE>
TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
PAGE
----
SECTION 1.01. Definitions.................................................. 1
"this Indenture" and certain other terms.................................. 1
"Act".................................................................... 1
"Affiliate".............................................................. 1
"Authenticating Agent"................................................... 2
"Authorized Newspaper"................................................... 2
"Board of Directors"..................................................... 2
"Board Resolution"....................................................... 2
"Business Day"........................................................... 2
"Commission"............................................................. 2
"Company"................................................................ 2
"Company Request" and "Company Order".................................... 2
"Consolidated Net Worth"................................................. 2
"Coupon Security"........................................................ 3
"Debt"................................................................... 3
"Defaulted Interest"..................................................... 3
"Depositary"............................................................. 3
"Event of Default"....................................................... 3
"Exchange Act"........................................................... 3
"Federal Bankruptcy Code"................................................ 3
"Fully Registered Security".............................................. 3
"Global Security"........................................................ 3
"Holder"................................................................. 3
"Interest"............................................................... 3
"Interest Payment Date".................................................. 3
"Maturity"............................................................... 3
"Mortgage"............................................................... 4
"Officers' Certificate".................................................. 4
"Opinion of Counsel"..................................................... 4
"Original Issue Discount Security"....................................... 4
"Outstanding"............................................................ 4
"Paying Agent"........................................................... 4
"Person"................................................................. 4
"Place of Payment"....................................................... 5
"Predecessor Security"................................................... 5
"Principal Corporate Trust Office"....................................... 5
"Redemption Date"........................................................ 5
"Redemption Price"....................................................... 5
"Registered Coupon Security"............................................. 5
"Registered Holder"...................................................... 5
"Registered"............................................................. 5
"Regular Record Date".................................................... 5
"Repayment Date"......................................................... 5
"Repayment Price"........................................................ 5
"Responsible Officer".................................................... 5
"Restricted Subsidiary".................................................. 5
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"Securities" ............................................................ 5
"Securityholder"......................................................... 6
"Security Register"...................................................... 6
"Security Registrar"..................................................... 6
"Special Record Date".................................................... 6
"Stated Maturity"........................................................ 6
"Subsidiary"............................................................. 6
"Trustee"................................................................ 6
"Trustee Indenture Act" or "TIA"......................................... 6
"Unregistered Security".................................................. 6
"Vice President"......................................................... 6
"Xerox".................................................................. 6
SECTION 1.02. Compliance Certificates and Opinions......................... 6
SECTION 1.03. Form of Documents Delivered to Trustee....................... 6
SECTION 1.04. Acts of Securityholders...................................... 7
SECTION 1.05. Notices, etc., to Trustee and Company........................ 8
SECTION 1.06. Notices to Securityholders; Waiver........................... 8
SECTION 1.07. Effect of Headings and Table of Contents..................... 9
SECTION 1.08. Successors and Assigns....................................... 9
SECTION 1.09. Separability Clause.......................................... 9
SECTION 1.10. Benefits of Indenture........................................ 9
SECTION 1.11. Legal Holidays............................................... 9
SECTION 1.12. Governing Law................................................ 9
SECTION 1.13. Trust Indenture Act.......................................... 9
SECTION 1.14. Counterparts................................................. 10
SECTION 1.15. Securities Denominated in a Currency Other Than
United States Dollars ..................................... 10
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Forms Generally ............................................. 10
SECTION 2.02. Forms of Securities.......................................... 10
SECTION 2.03. Form of Trustee's Certificate or Authentication.............. 10
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Title and Terms.............................................. 11
SECTION 3.02. Denominations................................................ 12
SECTION 3.03. Execution, Authentication, Delivery and Dating............... 12
SECTION 3.04. Temporary Securities......................................... 15
SECTION 3.05. Registration, Registration of Transfer and Exchange.......... 15
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities............. 17
SECTION 3.07. Payment of Interest; Interest Rights Preserved............... 17
SECTION 3.08. Persons Deemed Owners........................................ 18
SECTION 3.09. Cancellation................................................. 19
SECTION 3.10. Computation of Interest...................................... 19
SECTION 3.11. Compliance with Certain Laws and Regulations................. 19
ARTICLE FOUR
REDEMPTION OF SECURITIES
SECTION 4.01. Applicability of Article..................................... 19
SECTION 4.02. Election to Redeem; Notice to Trustee........................ 19
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SECTION 4.03. Selection by Trustee of Securities to be Redeemed............ 20
SECTION 4.04. Notice of Redemption......................................... 20
SECTION 4.05. Deposit of Redemption Price.................................. 21
SECTION 4.06. Securities Payable on Redemption Date........................ 21
SECTION 4.07. Securities Redeemed in Part.................................. 21
SECTION 4.08. Provisions With Respect to any Sinking Funds................. 21
SECTION 4.09. Applicability of Early Retirement Provisions................. 22
SECTION 4.10. Repayment of Securities...................................... 22
SECTION 4.11. Exercise of Option........................................... 22
SECTION 4.12. When Securities Presented for Repayment Become Due
and Payable ............................................... 23
SECTION 4.13. Securities Repaid in Part.................................... 23
ARTICLE FIVE
COVENANTS
SECTION 5.01. Payment of Principal, Premium and Interest; Compliance
with Terms ................................................ 23
SECTION 5.02. Maintenance of Office or Agency.............................. 23
SECTION 5.03. Money for Security Payments to be Held in Trust.............. 23
SECTION 5.04. Statement as to Compliance................................... 24
SECTION 5.05. Corporate Existence.......................................... 25
SECTION 5.06. Limitation on Liens.......................................... 25
SECTION 5.07. Waiver of Covenants.......................................... 26
ARTICLE SIX
SECURITYHOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 6.01. Company to Furnish Trustee Names and Addresses of
Securityholders ........................................... 26
SECTION 6.02. Preservation of Information; Communications to
Securityholders ........................................... 27
SECTION 6.03. Reports by Trustee........................................... 28
SECTION 6.04. Reports by Company........................................... 28
ARTICLE SEVEN
REMEDIES
SECTION 7.01. Events of Default............................................ 28
SECTION 7.02. Acceleration of Maturity; Rescission and Annulment........... 29
SECTION 7.03. Collection of Indebtedness and Suits for Enforcement
by Trustee ................................................ 30
SECTION 7.04. Trustee May File Proofs of Claim............................. 30
SECTION 7.05. Trustee May Enforce Claims Without Possession of Securities.. 31
SECTION 7.06. Application of Money Collected............................... 31
SECTION 7.07. Limitation on Suits.......................................... 31
SECTION 7.08. Restoration of Rights and Remedies........................... 32
SECTION 7.09. Rights and Remedies Cumulative............................... 32
SECTION 7.10. Delay or Omission Not Waiver................................. 32
SECTION 7.11. Control by Securityholders................................... 32
SECTION 7.12. Waiver of Past Defaults...................................... 32
SECTION 7.13. Waiver of Stay or Extension Laws............................. 33
ARTICLE EIGHT
THE TRUSTEE
SECTION 8.01. Certain Rights of Trustee.................................... 33
SECTION 8.02. Not Responsible for Recitals or Issuance of Securities....... 34
SECTION 8.03. May Hold Securities.......................................... 34
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SECTION 8.04. Money Held in Trust.......................................... 34
SECTION 8.05. Compensation and Reimbursement............................... 34
SECTION 8.06. Corporate Trustee Required; Eligibility...................... 34
SECTION 8.07. Resignation and Removal; Appointment of Successor............ 35
SECTION 8.08. Acceptance of Appointment by Successor....................... 36
SECTION 8.09. Merger, Conversion, Consolidation or Succession to
Business of Trustee ....................................... 36
SECTION 8.10. Appointment of Authenticating Agent.......................... 37
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Securityholders... 38
SECTION 9.02. Supplemental Indentures With Consent of Securityholders...... 38
SECTION 9.03. Execution of Supplemental Indentures......................... 39
SECTION 9.04. Effect of Supplemental Indentures............................ 39
SECTION 9.05. Conformity with Trust Indenture Act.......................... 39
SECTION 9.06. Reference in Securities to Supplemental Indentures........... 39
ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 10.01. Company May Consolidate, etc., Only on Certain Terms......... 40
SECTION 10.02. Successor Corporation Substituted............................ 40
SECTION 10.03. Securities to be Secured in Certain Events................... 40
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
SECTION 11.01. Satisfaction and Discharge of Indenture...................... 40
SECTION 11.02. Application of Trust Money................................... 41
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 12.01. Exemption from Individual Liability.......................... 41
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 13.01. Purposes of Meetings......................................... 42
SECTION 13.02. Call of Meetings by Trustee.................................. 42
SECTION 13.03. Call of Meetings by Company or Securityholders............... 43
SECTION 13.04. Qualifications for Voting.................................... 43
SECTION 13.05. Quorum; Adjourned Meetings................................... 43
SECTION 13.06. Regulations.................................................. 43
SECTION 13.07. Voting Procedure............................................. 44
SECTION 13.08. Written Consent in Lieu of Meetings.......................... 44
SECTION 13.09. No Delay of Rights by Meeting................................ 44
TESTIMONIUM................................................................. 45
SIGNATURES AND SEALS ....................................................... 45
ACKNOWLEDGMENTS ............................................................ 46
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THIS INDENTURE is entered into as of ____________________ , between XEROX
CREDIT CORPORATION, a corporation organized and existing under the laws of the
State of Delaware (hereinafter called the "Company"), having its principal
executive office at _____________________, and _______________________________,
a__________________________________________ (hereinafter called the "Trustee"),
having its Principal Corporate Trust Office on the date hereof at
_______________________________.
RECITALS OF THE COMPANY
The Company deems it necessary from time to time to issue its unsecured
debentures, notes, bonds or other evidences of indebtedness (including
instruments in global, temporary or definitive form), to be issued in one or
more series (hereinafter called the "Securities") as hereinafter set forth, and
to provide therefor the Company has duly authorized the execution and delivery
of this Indenture.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or any series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the term "this Indenture" means this instrument, as originally
executed or as it may from time to time be supplemented or amended by one
or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, and shall include the terms of particular
series of Securities established as contemplated by Section 3.01;
(2) all references in this instrument to designated "Articles",
"Sections" and other subdivisions are to be designated Articles, Sections
and other subdivisions of this Indenture. The words "herein", "hereof" and
"hereunder" and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other subdivision;
(3) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(4) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein; and
(5) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles as in effect on the date of computation.
"Act" when used with respect to any Securityholder, has the meaning
specified in Section 1.04.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this
<PAGE>
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise, and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 8.10 to act on behalf of the Trustee to authenticate Securities of
one or more series.
"Authorized Newspaper" means a newspaper of general circulation in the
relevant area, printed in the English language and customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays.
Whenever successive weekly publications in an Authorized Newspaper are
authorized hereunder, they may be made (unless otherwise expressly provided
herein) on the same or different days of the week and in the same or different
Authorized Newspapers.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each day which is neither a Saturday, Sunday or other
day on which banking institutions in The City of New York or the pertinent Place
of Payment are authorized or required by law or executive order to be closed,
except as otherwise provided with respect to a particular issue of Securities as
contemplated in Section 3.01.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or if at any time after the
execution and delivery of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties on such date.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until any successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean any such successor corporation.
"Company Request" and "Company Order" means, respectively, a written
request or order signed in the name of the Company by its Chairman of the Board,
President or a Vice President, and by its Treasurer, an Assistant Treasurer,
Controller, an Assistant Controller, Secretary, or an Assistant Secretary, and
delivered to the Trustee or any other Person, as required by this Indenture.
"Consolidated Net Worth" means, at any time, as to a given Person, the sum
of the amounts appearing on the latest consolidated balance sheet of such Person
and its Subsidiaries, prepared in accordance with generally accepted accounting
principles consistently applied, as
(i) the par or stated value of all outstanding capital stock
(including preferred stock),
(ii) capital paid-in and earned surplus or earnings retained in the
business plus or minus cumulative translation adjustments,
(iii) any unappropriated surplus reserves, and
(iv) any net unrealized appreciation of equity investments;
and, in the case of Xerox, there shall be added thereto the sum of $600,000,000.
2
<PAGE>
"Coupon Security" means any Security authenticated and delivered with one
or more interest coupons appertaining thereto.
"Debt" means (i) indebtedness for borrowed money or for the deferred
purchase price of property or services (excluding trade accounts payable
incurred in the ordinary course with a maturity of not greater than 90 days),
(ii) obligations as lessee under leases which shall have been or should be, in
accordance with generally accepted accounting principles, recorded as capital
leases, (iii) obligations under direct or indirect guaranties in respect of, and
obligations (contingent or otherwise) to purchase or otherwise acquire, or
otherwise to assure a creditor against loss in respect of, indebtedness or
obligations of others of the kinds referred to in clause (i) or (ii) above, and
(iv) the amount of unfunded benefit liabilities as defined in Section
4001(a)(18) of ERISA under plans covered by Title IV of ERISA.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Depositary" means, with respect to the Securities of any series issuable
or issued, in whole or in part, in the form of a Global Security, the Person
designated as Depositary by the Company pursuant to Section 3.01 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Securities of any
such series shall mean the Depositary with respect to the Securities of that
series.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute or statutes. Section and
Title references to ERISA are to ERISA, as in effect at the date of this
Indenture and any subsequent amendatory provision thereof.
"Event of Default" has the meaning specified in Section 7.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, and any successor statute or statutes.
"Federal Bankruptcy Code" means Title 11 of the United States Code
entitled "Bankruptcy", as amended from time to time, and any successor statute
or statutes.
"Fully Registered Security" means any Security registered as to principal
and interest.
"Global Security" means a Security issued to evidence all or a part of any
series of Securities which is executed by the Company and authenticated by the
Trustee and delivered to the Depositary or pursuant to the Depositary's
instructions, all in accordance with this Indenture and pursuant to a Company
Order, which shall be registered in the name of the Depositary or its nominee
and which shall represent the amount of uncertificated Securities of such series
as specified therein.
"Holder", when used with respect to any Security, means a Securityholder
and, when used with respect to any coupon, means the bearer thereof.
"Interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any series of
Securities, means the Stated Maturity of an instalment of interest on such
Securities.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether on a Repayment Date, at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
3
<PAGE>
"Mortgage" has the meaning specified in Section 10.03
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President or a Vice President (as hereinafter defined), and by the
Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the
Secretary or an Assistant Secretary of the Company, and delivered to the Trustee
in accordance with Section 314 of the TIA, to the extent applicable.
"Opinion of Counsel" means a written opinion of counsel, who may (except
as otherwise expressly provided in this Indenture) be an employee of the
Company, and who shall be reasonably satisfactory to the Trustee.
"Original Issue Discount Security" means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 7.02.
"Outstanding" when used with respect to Securities or Securities of any
series, means, as of the date of determination, all such Securities theretofore
authenticated and delivered under this Indenture, except:
(a) such Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) such Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall be acting as
its own Paying Agent) for the Holders of such Securities, provided
that, if such Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(c) such Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture;
provided, however, that in determining whether the Holders of the requisite
principal amount of such Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 7.02 and (ii) Securities owned by
the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, premium, if any, or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation (including a business trust),
partnership, joint venture, joint-stock company, trust, unincorporated
association or other entity, or the United States or a foreign state or a
political subdivision of either thereof or any agency of the United States or
such state or subdivision.
4
<PAGE>
"Place of Payment" means a city or any political subdivision thereof
designated as such in Section 3.01.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security, and for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
"Principal Corporate Trust Office" means the principal corporate trust
office of the Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date of initial execution of
this Indenture, is ______________________________________________________,
Attention: ________________________________; except that with respect to the
presentation of Securities for payment or for registration of transfer or
exchange, such term shall mean the office or agency of the Trustee in the
Borough of Manhattan, City of New York, which office at the date of initial
execution of this Indenture, is located at_____________________________________,
Attention:____________________________________.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price specified in such Security at which it is to be redeemed
pursuant to this Indenture.
"Registered Coupon Security" means any Coupon Security registered as to
principal.
"Registered Holder", when used with respect to a Registered Security,
means the person in whose name such Security is registered in the Security
Register.
"Registered Security" means any Security registered in the Security
Register.
"Regular Record Date" for the interest payable on any Security on any
Interest Payment Date means the date, if any, specified in such Security as the
"Regular Record Date".
"Repayment Date", when used with respect to any Security to be repaid,
means the date fixed for such repayment pursuant to such Security.
"Repayment Price", when used with respect to any Security to be repaid,
means the price at which it is to be repaid pursuant to such Security.
"Responsible Officer", when used with respect to the Trustee means the
chairman or vice chairman of the board of directors, the chairman or vice
chairman of the executive committee of the board of directors, the president,
any vice president, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any senior trust
officer or trust officer, the controller and any assistant controller or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Subsidiary" means any Subsidiary of the Company organized and
existing under the laws of any State of the United States of America or the
District of Columbia.
"Securities" has the meaning stated in the first recital of this Indenture
and shall mean any Securities authenticated and delivered pursuant to this
Indenture.
5
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"Securityholder" means a bearer of an Unregistered Security or a
Registered Holder of a Registered Security.
"Security Register" has the meaning specified in Section 3.05.
"Security Registrar" means the Person who keeps the Security Register
specified in Section 3.05.
"Special Record Date" for the payment of any Defaulted Interest (as
defined in Section 3.07) means the date fixed by the Trustee pursuant to Section
3.07.
"Stated Maturity", when used with respect to any Security, or any
instalment of principal thereof or interest thereon, means the date specified in
such Security as the fixed date on which the principal of such Security, or such
instalment of principal or interest, is due and payable.
"Subsidiary" means, as to any Person, any corporation of which more than
50% of the outstanding capital stock having ordinary voting power to elect a
majority of the board of directors of such corporation (irrespective of whether
or not at the time capital stock of any other class or classes of such
corporation shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indirectly owned by such Person, by such
Person and one or more other Subsidiaries of such Person, or by one or more
other Subsidiaries of such Person.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as
amended by the Trust Indenture Reform Act of 1990, and as in force at the date
as of which this instrument was executed, except as provided in Section 9.05.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
and include each Person who is then a Trustee hereunder. If at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Unregistered Security" means any Coupon Security, or bearer Security, not
registered as to principal.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Xerox" means Xerox Corporation, a New York corporation, of which the
Company is an indirect Subsidiary.
SECTION 1.02. Compliance Certificates and Opinions. Except as provided by
Section 5.04, any certificate required by this Indenture or the TIA to be
delivered by the Company to the Trustee shall be signed by the Chairman of the
Board, the President or a Vice President and by the Treasurer, an Assistant
Treasurer, the Controller, an Assistant Controller, the Secretary or an
Assistant Secretary of the Company and be in compliance with Section 314 of the
TIA, to the extent applicable.
Any opinion of counsel required by this Indenture or the TIA to be
delivered by or on behalf of the Company to the Trustee shall be in compliance
with Section 314 of the TIA, to the extent applicable, and be provided by
counsel to the Company, who may (except as otherwise expressly provided in this
Indenture or in the TIA) be an employee of the Company, and who shall be
reasonably satisfactory to the Trustee.
SECTION 1.03. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all
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such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Securityholders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Securityholders of any series may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Securityholders in person or by an agent duly appointed in
writing or by the record of the holders of Securities voting in favor thereof at
any meeting of such Securityholders duly called and held in accordance with the
provisions of Article Thirteen; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or any such record is delivered to the Trustee, and, where it is hereby
expressly required, to the Company. Such instrument or instruments or such
record (and the action embodied therein and evidenced thereby) is herein
sometimes referred to as the "Act" of the Securityholders signing such
instrument or instruments or voting at such meeting. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 8.01) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section. The record of any Securityholders' meeting shall be proved in the
manner provided in Section 13.07 and the record so proved shall be sufficient
for any purpose of this Indenture and (subject to Section 8.01) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by or on behalf of any legal entity other than an individual, such
certificate or affidavit shall also constitute proof of the authority of the
Person executing the same. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by the
Security Register.
(d) The amount of Unregistered Securities held by any Person executing any
such instrument or writing as a Securityholder, and the numbers of such
Unregistered Securities, and the date of his holding the same, may be proved by
the production of such Securities or by a certificate executed by any trust
company, bank, banker or member of a national securities exchange (wherever
situated), as depositary, if such certificate is in form satisfactory to the
Trustee, showing that at the date therein mentioned such Person had on deposit
with such depositary, or exhibited to it, the Unregistered Security therein
described; or such facts may be proved by the certificate or affidavit of the
Person executing such instrument or
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writing as a Securityholder, if such certificate or affidavit is in a form
satisfactory to the Trustee. The Trustee and the Company may assume that such
ownership of any Unregistered Security continues until (i) another certificate
bearing a later date issued in respect of the same Unregistered Security is
produced, or (ii) such Unregistered Security is produced by some other Person,
or (iii) such Unregistered Security is registered as to principal or is
surrendered in exchange for a Fully Registered Security, or (iv) such
Unregistered Security has been cancelled in accordance with Section 3.09.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Security shall bind the Holder of every
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof, in respect of any action taken, suffered or omitted
by the Trustee or the Company in reliance thereon, whether or not notation of
such action is made upon such Security.
(f) The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to take any action under this
Indenture by vote or consent. Such record date shall be the later of 30 days
prior to the first solicitation of such consent or vote or the date of the most
recent list of Holders furnished to the Trustee pursuant to Section 6.01 prior
to such solicitation. If a record date is fixed, those Persons who were Holders
of Securities at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to take such action by vote or consent or to
revoke any vote or consent previously given, whether or not such Persons
continue to be Holders after such record date; provided, however, that unless
such vote or consent is obtained from the Holders (or their designated proxies)
of the requisite principal amount of Outstanding Securities prior to the date
which is the 120th day after such record date, any such vote or consent
previously given shall automatically and without further action by any Holder be
cancelled and of no further effect.
SECTION 1.05. Notices, etc., to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Securityholders or
other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with
(1) the Trustee by any Securityholder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Trustee at its Principal Corporate Trust Office,
or
(2) the Company by the Trustee or by any Securityholder shall be
sufficient for every purpose hereunder (except as provided in Section
7.01(4)) if in writing and mailed, first-class, postage prepaid, to the
Company addressed to it at the address of its principal office specified
in the first paragraph of this Indenture or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 1.06. Notices to Securityholders; Waiver. Where this Indenture or
any Security provides for notice to Holders of any event, (1) if any of the
Securities affected by such event are Registered Securities, such notice shall
be sufficiently given (unless otherwise herein or in such Securities expressly
provided) if in writing and mailed, first-class, postage prepaid, to each
Registered Holder of such Securities, at his address as it appears in the
Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice and (2) if any of the
Securities affected by such event are Unregistered Securities, such notice shall
be sufficiently given (unless otherwise herein or in such Securities expressly
provided) if published once in an Authorized Newspaper in the Place of Payment
or, if such Unregistered Securities are listed on the Luxemburg Stock Exchange
and if so requested by such exchange, in Luxemburg, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to Securityholders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Securityholder shall affect the sufficiency of such notice with
respect to other Securityholders. Where this Indenture provides for notice in
any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such
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notice. Waivers of notice by Securityholders shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case, by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers, or by reason of any other cause, it shall be
impossible to make publication of any notice in an Authorized Newspaper or
Authorized Newspapers as required by any Security or this Indenture, then such
method of publication or notification as shall be made with the approval of the
Trustee shall constitute a sufficient publication of such notice.
In case, by reason of the suspension of regular mail service as a result
of a strike, work stoppage or otherwise, it shall be impracticable to mail
notice of any event to the Holders of Securities when such notice is required to
be given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Trustee and the Company shall be
deemed to be a sufficient giving of such notice.
SECTION 1.07. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 1.08. Successors and Assigns. All covenants and agreements in this
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 1.09. Separability Clause. In case any provision in this Indenture
or in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 1.10. Benefits of Indenture. Nothing in this Indenture or in the
Securities, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, any Paying Agent, the Security Registrar
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 1.11. Legal Holidays. Except as may otherwise be provided with
respect to Securities of any series, in any case where the date of any Interest
Payment Date or Redemption Date or Repayment Date or the Maturity of any
Security or any date on which any Defaulted Interest is proposed to be paid or
the date on or by which any other action (including a date for giving notice) is
proposed or required to be taken shall not be a Business Day in a Place of
Payment, then payment of the principal of, premium, if any, or interest, if any,
on any Securities may be made, and such action may be taken, on the next
succeeding Business Day with the same force and effect as if made on the nominal
date of any such Interest Payment Date or Redemption Date or Repayment Date or
Maturity or on the date on which Defaulted Interest is proposed to be paid or
taken on the nominal date on which or by which such action is proposed or
required to be taken, as the case may be, and no interest, if any, shall accrue
on the payment so deferred for the period from and after any such nominal date.
SECTION 1.12. GOVERNING LAW. THIS INDENTURE AND THE SECURITIES 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).
SECTION 1.13. Trust Indenture Act. This Indenture is subject to the TIA
and if any provision hereof limits, qualifies or conflicts with the TIA, the TIA
shall control.
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SECTION 1.14. Counterparts. This Indenture may be executed in any number
of counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION 1.15. Securities Denominated in a Currency Other Than United
States Dollars. For the purpose of calculating the principal amount of
Securities denominated in a currency other than U.S. dollars (including units
consisting of multiple currencies) for any purpose under this Indenture the
principal amount of such Securities at any time Outstanding shall be deemed to
be that amount of U.S. dollars that could be obtained for such principal amount
on the basis of the spot rate of exchange for such currency into U.S. dollars as
of the date of any such calculation.
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Forms Generally. The Securities of each series and the
certificates of authentication thereon shall have such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon, as may be
required to comply with the rules of any securities exchange, or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of such Securities. Any portion of the text of
any Security may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Security.
The definitive Securities, if any, shall be printed, lithographed or
engraved or produced by any combination of these methods on steel engraved
borders or otherwise or may be produced in any other manner permitted by the
rules of any securities exchange, all as determined by the officers executing
such Securities, as evidenced by their execution of such Securities.
SECTION 2.02. Forms of Securities. Each Security shall be in one of the
forms approved from time to time by or pursuant to a Board Resolution, or
established in one or more indentures supplemental hereto. Prior to the delivery
of a Security to the Trustee for authentication in any form approved by or
pursuant to a Board Resolution, the Company shall deliver to the Trustee the
Board Resolution by or pursuant to which such form of Security has been
approved, which Board Resolution shall have attached thereto a true and correct
copy of the form of Security which has been approved by or pursuant thereto, or,
if a Board Resolution authorizes a specific officer or officers to approve a
form of Security, a certificate of such officer or officers approving the form
of Security attached thereto. Any form of Security approved by or pursuant to a
Board Resolution must be acceptable as to form to the Trustee, such acceptance
to be evidenced by a certificate signed by a Responsible Officer of the Trustee
and delivered to the Company or by the execution by the Trustee of the
certificate of authentication thereon.
If any Security of a series is issuable as a Global Security (in whole or
in part), such Global Security may provide that it shall represent the aggregate
amount of Outstanding Securities from time to time endorsed thereon and may also
provide that the aggregate amount of Outstanding Securities represented thereby
may from time to time be reduced to reflect exchanges or may from time to time
be increased to reflect the issuance of additional uncertificated Securities of
such series. Any endorsement of a Global Security to reflect the amount, or any
increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee pursuant to such instructions and in such
manner as shall be specified in such Global Security or in or pursuant to the
Company Order to be delivered to the Trustee pursuant to Section 3.03.
SECTION 2.03. Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication for any Security issued pursuant to this
Indenture shall be substantially in the following form:
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities, of the series designated herein, described
in the within mentioned Indenture.
___________________________________,
AS TRUSTEE
By..................................
Authorized Signatory
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Title and Terms. The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is
unlimited. The Securities may be issued up to the aggregate principal amount of
Securities from time to time authorized by or pursuant to a Board Resolution.
The Securities may be issued in one or more series. All Securities of each
series issued under this Indenture shall in all respects be equally and ratably
entitled to the benefits hereof with respect to such series without preference,
priority or distinction on account of the actual time or times of the
authentication and delivery or Maturity of the Securities of such series. All
Securities of any one series need not be issued at the same time, and unless
otherwise provided, a series may be reopened for issuance of additional
Securities of such series up to the maximum aggregate principal amount
authorized at the time the series is reopened. There shall be established in or
pursuant to a Board Resolution, and set forth in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of that
series pursuant to this Article Three, Article Four or Article Nine);
(3) the date or dates or the periodic intervals on which the principal
and premium, if any, of the Securities of such series is payable, or the
method of determination thereof;
(4) the rate or rates (which may be fixed or variable), or the method
of determination thereof, at which the Securities of such series shall bear
interest, if any, which, if so provided in or pursuant to the authority
granted by the resolution of the Board of Directors with respect to such
series, may be determined by the Company from time to time and set forth in
the Securities of such series issued from time to time, the date or dates
from which such interest shall accrue, or the method of determination
thereof, the Interest Payment Dates on which such interest shall be payable
and the record dates, if any, for the determination of Holders to whom
interest is payable;
(5) the place or places where the principal of, and premium, if any,
and interest, if any, if other than as set forth in Section 3.01, on
Securities of such series shall be payable;
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(6) the price or prices at which, the period or periods within which
and the terms and conditions upon which Securities of such series may be
redeemed or repaid, in whole or in part, at the option of the Company or a
Holder thereof, pursuant to any sinking fund or otherwise;
(7) the obligation, if any, of the Company to redeem, purchase or
repay Securities of such series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof, and the price or prices at
which and the period or periods within which and the terms and conditions
upon which Securities of such series shall be redeemed, purchased or
repaid, in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and integral multiples
thereof, the denominations in which Securities of such series shall be
issuable;
(9) whether the Securities of the series shall be issued (a) as other
than Fully Registered Securities or (b) in whole or in part in the form of
a Global Security or Securities and, in such case, (i) the terms and
conditions, if any, upon which such Global Security or Securities may be
exchanged in whole or in part for other definitive Securities, (ii) the
Depositary for such Global Security or Securities and (iii) whether such
Global Security shall be definitive or temporary;
(10) if other than the principal amount thereof, the portion of the
principal amount of an Original Issue Discount Security which shall be
payable upon declaration of acceleration of the maturity thereof pursuant
to Section 7.02; and
(11) any and all other terms of such series, including denominations
of securities in currencies other than U.S. dollars (including units
consisting of multiple currencies) and including any election as to any
optional provision, which shall be necessary to complete the form of
Security for such series, which shall be one of the forms approved or
established pursuant to Section 2.02 hereof (which terms shall not be
inconsistent with the provisions of this Indenture).
The principal of, premium, if any, and interest on the Securities shall be
payable at the office or agency of the Company in the Borough of Manhattan, The
City of New York, unless the form of any such Security shall designate a
different place of payment (any such office or place of payment being herein
called the "Place of Payment"); provided, however, and unless otherwise provided
in the form of Security for any series approved or established pursuant to
Section 2.02, that payment of interest with respect to Registered Securities may
be made at the option of the Company by check mailed to the address of the
person entitled thereto as such address shall appear in the Security Register.
SECTION 3.02. Denominations. The Securities of each series shall be
issuable in such form and denominations as shall be specified in the form of
Security for such series approved or established pursuant to Section 2.02 or in
the Officers' Certificate delivered pursuant to Section 3.01. In the absence of
any specification with respect to the Securities of any series, the Securities
of such series shall be issuable only as Fully Registered Securities without
coupons in denominations of $1,000 and any integral multiple thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating. The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its President or one of its Vice Presidents and by its Secretary or one
of its Assistant Secretaries. Interest coupons appertaining to a Coupon Security
shall be executed on behalf of the Company by its Chairman of the Board, its
President or one of its Vice Presidents. The signatures of any or all of these
officers on the Securities and the interest coupons may be manual or facsimile.
Securities and any interest coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such
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Securities or interest coupons or did not hold such offices at the date of such
Securities or interest coupons.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication together with a Company Order for
authentication and delivery of such securities; and the Trustee shall
authenticate and deliver such Securities as in this Indenture provided and not
otherwise, without further action by the Company. If all the Securities of any
series are not to be issued at one time and if the Board Resolution or
supplemental indenture establishing such series shall so permit, such Company
Order may set forth procedures acceptable to the Trustee for the issuance of
such Securities and determining the terms of particular Securities of such
series such as interest rate, maturity date, date of issuance and date from
which interest shall accrue, in which case it shall not be necessary to deliver
additional Company Orders with respect to Securities of the same series.
Prior to any such authentication and delivery, the Trustee shall be
entitled to receive and shall be fully protected in relying upon:
(1) the Opinion of Counsel to be furnished to the Trustee pursuant to
Section 314(c)(2) of the TIA with the Officers' Certificate relating to the
issuance of any series of Securities;
(2) a Board Resolution relating thereto, certified by the Secretary or
an Assistant Secretary of the Company;
(3) an executed supplemental indenture, if any, relating thereto; and
(4) an Opinion of Counsel which shall state
(a) all instruments furnished to the Trustee conform to the
requirements of the Indenture and constitute sufficient authority
hereunder for the Trustee to authenticate and deliver such Securities;
(b) all laws and requirements with respect to the form and
execution by the Company of the supplemental indenture, if any, have
been complied with, the Company has corporate power to execute and
deliver any such supplemental indenture and has taken all necessary
corporate action for those purposes and any such supplemental
indenture has been duly executed and delivered by the Company and
constitutes the legal, valid and binding obligation of the Company
enforceable 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 equity principles);
(c) the form and terms or the procedure for determining the terms
of such Securities have been established in conformity with the
provisions of this Indenture;
(d) subject to such conditions as may be set forth in said
Opinion of Counsel, all laws and requirements with respect to the
execution and delivery by the Company of such Securities have been
complied with, the Company has the corporate power to issue such
Securities and such Securities have been duly authorized, by the
Company and, assuming due execution by the Company and due
authentication and delivery by the Trustee, will constitute legal,
valid and binding obligations of the Company enforceable in accordance
with their terms, subject to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting the
enforcement of creditors' rights and to general equity principles, and
will be entitled to the benefits of this Indenture, equally and
ratably with all other Securities, if any, of such series Outstanding;
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(e) the amount of Securities Outstanding, including such
Securities, does not exceed the amount at the time permitted by law or
under the terms of this Indenture;
(f) the Indenture is qualified under the Trust Indenture Act; and
(g) subject to such conditions as may be set forth in said
Opinion of Counsel, the issuance of the Securities does not contravene
the charter or by-laws of the Company and does not violate the terms
or provisions of this Indenture or of any indenture, mortgage or other
agreement known to such counsel to which the Company is a party.
If all the Securities of any series are not to be issued at one time, it
shall not be necessary to deliver the documents specified in (1), (2), (3) and
(4) immediately above at the time of issuance of each Security, but such
documents, with appropriate modifications, shall be delivered at or prior to the
time of issuance of the first Security of such series.
The Trustee shall not be required to authenticate such Securities if the
issue thereof will adversely affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Unless otherwise provided in the form of Security for any series, all
Securities shall be dated the date of their authentication.
Subject to Section 3.11, each Depositary designated pursuant to Section
3.01 or this Section 3.03 for a Global Security must, at the time of its
designation and at all times while it serves as Depositary, be a clearing agency
registered under the Exchange Act, or any other applicable statute or
regulation.
If at any time the Depositary for Global Securities of a series notifies
the Company in writing that it is unwilling or unable to continue as Depositary
for the Global Securities of such series or if at any time the Depositary for
the Global Securities for such series shall no longer be eligible under this
Section 3.03 or in good standing under the Exchange Act, or other applicable
statute or regulation, the Company shall appoint a successor Depositary with
respect to the Securities for such series. If a successor Depositary for the
Securities of such series is not appointed by the Company within 90 days after
the Company receives such notice or becomes aware of such ineligibility, the
Company will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver Securities of such series of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal amount
of the Global Security or Securities representing such series in exchange for
such Global Security or Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. In such
event, the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, will authenticate and deliver Securities of such series of like tenor
and terms in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such series
in exchange for such Global Security or Securities.
If specified by the Company pursuant to Section 3.01 with respect to a
series of Securities, the Depositary for such series of Securities may surrender
a Global Security for such series of Securities in exchange in whole or in part
for Securities of such series of like tenor and terms in definitive form on such
terms as are acceptable to the Company, the Trustee and such Depositary.
Thereupon, the Company shall execute, and the Trustee, upon receipt of a Company
Order, shall authenticate and deliver without service charge to the Holders, (i)
to the Depositary or to each Person specified by such Depositary a new Security
or Securities of the same series, of like tenor and terms and of any authorized
denomination as requested by such person in an aggregate principal amount equal
to and in exchange for such Person's beneficial interest in the Global Security;
and (ii) to such Depositary a new Global Security of like tenor
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and terms and in a denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the aggregate principal
amount of securities delivered pursuant to clause (i) hereof.
No Securities shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
SECTION 3.04. Temporary Securities. Pending the preparation of definitive
Securities of any series, the Company may execute, and upon receipt of the
documents required by Sections 3.01 and 3.03, together with a Company Order, the
Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denominations, substantially of the tenor of the definitive Securities in lieu
of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of such series to be prepared without unreasonable delay.
After the preparation of definitive Securities, the temporary Securities of such
series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company in the Place of Payment, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of such series of
authorized denominations and of the same tenor. Until so exchanged the temporary
Securities of such series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series.
SECTION 3.05. Registration, Registration of Transfer and Exchange. The
Company shall keep or cause to be kept a register (herein sometimes referred to
as the "Security Register") in which, subject to such reasonable regulations as
it may prescribe, the Company shall provide for the registration of each series
of Registered Securities and the registration of transfers of Registered
Securities of such series. Any such register shall be in written form or in any
other form capable of being converted into written form within a reasonable
time. At all reasonable times the information contained in such register or
registers shall be available for inspection by the Trustee at the office or
agency to be maintained by the Company as provided in Section 5.02.
Upon surrender for registration of transfer of any Registered Security of
any series at the office or agency of the Company in the Place of Payment or at
the Principal Corporate Trust Office, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Registered Securities of such series of any
authorized denominations and of a like tenor, aggregate principal amount and
Stated Maturity.
Notwithstanding any other provision of this Section 3.05, unless and until
it is exchanged in whole or in part for Securities in a definitive form, a
Global Security representing all or a portion of the Securities of a series may
not be transferred except as a whole by the Depositary of such series to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee
to a successor Depositary of such series or a nominee of such successor
Depositary, and any such Global Security shall contain a legend to the following
effect: "Unless and until this Global Security is exchanged as a whole or in
part for definitive Securities in registered form, this Global Security may not
be transferred except as a whole by the Depositary to a nominee thereof or by a
nominee thereof to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a sucessor Depositary or a nominee of such
successor."
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Upon the exchange of a Global Security for Securities in definitive form,
such Global Security shall be cancelled by the Trustee. Definitive Securities
issued in exchange for a Global Security pursuant to Section 3.03 shall be
registered in such names and in such authorized denominations and delivered to
the Depositary or to such addresses as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee in writing. The Trustee shall deliver such Securities
to the Depositary or to the persons in whose names such Securities are so
registered.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of such series, of any authorized
denominations and of a like tenor, aggregate principal amount and Stated
Maturity, upon surrender of the Registered Securities to be exchanged at the
office or agency of the Company in the Place of Payment or at the Principal
Corporate Trust Office. Whenever any Registered Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Registered Securities which the Securityholder making the exchange
is entitled to receive.
Upon presentation for registration of any Unregistered Security of any
series which by its terms is registrable as to principal at the office or agency
of the Company in the Place of Payment or at the Principal Corporate Trust
Office, such Security shall be registered as to principal in the name of the
Holder thereof and such registration shall be noted on such Security. Any
Security so registered shall be transferable on the Security Register, upon
presentation of such Security at such office or agency for similar notation
thereon, but such Security may, to the extent and under the circumstances
specified pursuant to Section 3.11, be discharged from registration by being in
like manner transferred to bearer, whereupon transferability by delivery shall
be restored. Unregistered Securities shall continue to be subject to successive
registrations and discharges from registration at the option of the Holders
thereof.
Coupon Securities shall be transferable by delivery except while
registered as to principal. Registration of any Coupon Security shall not affect
the transferability by delivery of the coupons appertaining thereto, which shall
continue to be payable to bearer and transferable by delivery.
At the option of the Holder thereof, Coupon Securities of any series which
by their terms are registrable as to principal and interest may be exchanged for
Fully Registered Securities of such series of any authorized denominations and
of a like aggregate principal amount and Stated Maturity, upon surrender of the
Coupon Securities to be exchanged at such office or agency with all unmatured
coupons and all matured coupons in default thereto appertaining, and upon
payment, if the Company shall so require, of the charges hereinafter provided.
At the option of the Holder thereof and to the extent and under the
circumstances specified pursuant to Section 3.11, Fully Registered Securities of
any series, which by their terms provide for the issuance of Coupon Securities,
may be exchanged for Coupon Securities or Fully Registered Securities of such
series, of any authorized denominations and of a like tenor, aggregate principal
amount and Stated Maturity, upon surrender of the Securities to be exchanged at
such office or agency, and upon payment if the Company shall so require of the
charges hereinafter provided. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer, exchange, redemption or repayment shall (if so required by the Company
or the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed, by
the Holder thereof or his attorney duly authorized in writing.
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Unless otherwise provided in the Securities to be transferred or
exchanged, no service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may (unless otherwise provided in such
Securities) require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to Section
3.04, 4.07, or 9.06 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of
or exchange any Securities of any series during a period beginning at the
opening of business 15 days before the day of selection of Securities of such
series to be redeemed under Section 4.03 and ending at the close of business on
the day of the mailing of a notice of redemption of Securities of such series so
selected for redemption, or (ii) to register the transfer or exchange of any
Securities so selected for redemption in whole or that part of any Security so
selected in the case of Securities selected for redemption in part.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities. If (i) any
mutilated Security or any Security to which a mutilated coupon is annexed is
surrendered to the Trustee, or if the Company and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Security or any
coupon appurtenant to a Coupon Security, and (ii) there is delivered to the
Company, the Trustee and the Security Registrar such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice to the Company and the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Security or the Coupon Security
to which such mutilated, destroyed, lost or stolen coupon appertains, a new
Security of the same series and of like tenor and principal amount, bearing a
number not contemporaneously Outstanding.
In case any such mutilated, destroyed, lost or stolen Security or coupon
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security or coupon.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security (and appurtenant coupon) issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security or coupon shall
constitute an original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security or coupon shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities and
coupons of the same series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 3.07. Payment of Interest; Interest Rights Preserved. Interest on
any Fully Registered Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall unless otherwise provided in
such Security be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered on the Regular Record Date for such
interest. Subject to the penultimate paragraph of this Section, interest on any
Unregistered Security which is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Holder of such
Unregistered Security, or the coupon appertaining thereto, as the case may be.
Any interest on any Fully Registered Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
of such Fully Registered Security, on the relevant Regular Record Date by virtue
of
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his having been such Holder, and such Defaulted Interest shall be paid by the
Company, at its election in each case, as provided in Clause (1) or Clause (2)
below:
(1) The Company may elect to make payments of any Defaulted Interest to
the Persons in whose names any such Fully Registered Securities (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Fully Registered Security and the date of the proposed payment,
and at the same time the Company shall deposit with the Trustee an amount
of money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Clause provided. Thereupon
the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 nor less than 10 days
prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class, postage prepaid, to each Fully
Registered Holder at his address as it appears in the Security Register,
not less than 10 days prior to such Special Record Date. The Trustee may,
in its discretion, in the name and at the expense of the Company, notify
Fully Registered Holders by causing a similar notice to be published at
least once in an Authorized Newspaper in the Place of Payment, but such
publication shall not be a condition precedent to the establishment of
such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names such Fully Registered Securities (or their respective Predecessor
Securities) are registered on such Special Record Date and shall no longer
be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities of that series may be listed, and upon
such notice as may be required by such exchange, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to this
Clause; such payment shall be deemed practicable by the Trustee.
Any Defaulted Interest payable in respect of any Security which is not a
Fully Registered Security shall be payable pursuant to such procedures as may be
satisfactory to the Trustee in such manner that there is no discrimination as
between the Holders of Fully Registered Securities and other Securities of the
same series, and notice of the payment date therefor shall be given by the
Trustee, in the name and at the expense of the Company, by publication at least
once in any Authorized Newspaper in the Place of Payment, subject to Section
1.06.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of, or in exchange
for, or in lieu of, any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.08. Persons Deemed Owners. Prior to due presentment for
registration of transfer of any Registered Security the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Registered Security for
the purpose of receiving payment of principal of, premium, if any, on, and, if
such Registered Security is a Fully Registered Security (subject to Section
3.07) interest on, such Registered Security, and for all purposes whatsoever
(except the payment of coupons appertaining to any Registered Coupon Security
and the payment of interest payable on presentation of any temporary Security),
whether or not such Registered Security be overdue, and neither the Company, the
Trustee nor any agent of the Company
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or the Trustee shall be affected by notice to the contrary. The Company, the
Trustee and any agent of the Company or the Trustee may treat the Holder of any
Unregistered Security or the Holder of any coupon, whether or not the Security
to which such coupon appertains be registered, as the owner of such Unregistered
Security or coupon for the purpose of receiving payment thereof and for all
other purposes whatsoever, whether or not such Unregistered Security or coupon
be overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests and they shall be
protected in acting or refraining from acting on any such information provided
by the Depositary.
SECTION 3.09. Cancellation. All Securities surrendered for payment,
registration of transfer, exchange, repayment or redemption, and all coupons
surrendered for payment, shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee, and any such Securities and coupons, and
Securities and coupons surrendered directly to the Trustee for any such purpose,
shall be promptly canceled by it. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and all
Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section, except as expressly permitted by this
Indenture or such Securities. All canceled Securities and coupons held by the
Trustee shall be disposed of in accordance with its standard procedures and the
Trustee shall furnish to the Company a certificate of disposition or, at the
written request of the Company, the Trustee shall deliver such cancelled
Securities to the Company. If the Company shall acquire any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation.
SECTION 3.10. Computation of Interest. Except as otherwise specified in
the form of Security for any series approved or established pursuant to Section
2.02 or in the Officers' Certificate delivered pursuant to Section 3.01 with
respect to Securities of any series, interest on the Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 3.11. Compliance with Certain Laws and Regulations. If any
Unregistered Securities are to be issued in any series of Securities, the
Company will provide for arrangements and procedures reasonably designed
pursuant to then applicable laws and regulations, if any, to ensure that
Unregistered Securities are sold or resold (in connection with their original
issuance), exchanged, transferred and paid only in compliance with such laws and
regulations and without adverse consequences to the Company.
ARTICLE FOUR
REDEMPTION AND REPAYMENT OF SECURITIES
SECTION 4.01. Applicability of Article. The Company may reserve the right
to redeem and pay before Stated Maturity all or any part of the Securities of
any series, either by optional redemption, sinking fund or otherwise, by
provision therefor in the form of Security for such series approved or
established pursuant to Section 2.02 and on such terms as are specified in such
form or the Officers' Certificate delivered pursuant to Section 3.01 or the
indenture supplemental hereto as provided in Section 3.01 with respect to
Securities of such series. Redemption of Securities of any series shall be made
in accordance with the terms of such Securities and, to the extent that this
Article does not conflict with such terms, in accordance with this Article.
SECTION 4.02. Election to Redeem; Notice to Trustee. The election of the
Company to redeem any Securities redeemable at the option of the Company shall
be evidenced by a Board Resolution and/or
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by an Officers' Certificate made pursuant to a Board Resolution. In the case of
any redemption at the election of the Company of less than all the Securities of
any series, the Company shall notify the Trustee of such Redemption Date and of
the principal amount of Securities of such series to be redeemed not less than
45 nor more than 60 days prior to the Redemption Date (unless a shorter notice
shall be satisfactory to the Trustee).
SECTION 4.03. Selection by Trustee of Securities to be Redeemed. To the
extent that the Securities of a given series have different terms, the Company
in its sole and absolute discretion shall select the Securities to be redeemed
if less than all of the series are to be redeemed. If less than all the
Securities of a given series having the same terms are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 45 days
prior to the Redemption Date by the Trustee from the Outstanding Securities of
such series having such terms not previously called for redemption, 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 stock exchange on which the
Securities may be then listed) and which may provide for the selection for
redemption of portions of the principal of Securities of such series of a
denomination larger than the minimum authorized denomination for Securities of
such series. Unless otherwise provided by the terms of the Securities of any
series so selected for partial redemption, the portions of the principal of
Securities of such series so selected for partial redemption shall be equal to
$1,000 or an integral multiple thereof and the principal amount which remains
outstanding shall not be less than the minimum authorized denomination for
Securities of such series.
If less than all of the Securities of a given series having different
terms are to be redeemed, the Company shall notify the Trustee of the Securities
to be redeemed not less than 45 nor more than 60 days prior to the Redemption
Date (unless a shorter notice shall be satisfactory to the Trustee). If less
than all the Securities of a series having the same terms are to be redeemed,
the Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Security selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Security redeemed or to be redeemed only in part, to the portion of
the principal of such Security which has been or is to be redeemed. The Trustee
shall notify the Company promptly of the Securities or portions of Securities to
be redeemed.
SECTION 4.04. Notice of Redemption. Notice of redemption shall be given in
the manner provided in Section 1.06, not less than 30 nor more than 60 days
prior to the Redemption Date, to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) the CUSIP number; provided, that such notice shall state that no
representation is made as to the correctness of any such CUSIP number,
either as printed on the Security or as contained in any such notice, and
that reliance may be placed only on the other identification numbers
printed on the Securities and any redemption shall not be affected by any
defect in or omission of such numbers,
(4) the name and address of the Paying Agent,
(5) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
respective principal amounts) of the Securities to be redeemed,
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(6) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security or portion thereof, and that interest,
if any, thereon shall cease to accrue on and after said date,
(7) the place where such Securities and all coupons, if any, are to be
surrendered for payment of the Redemption Price, which shall be the office
or agency of the Company in the Place of Payment,
(8) that the redemption is on account of a sinking fund, if that be
the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, on Company Request, by the Trustee in
the name and at the expense of the Company.
SECTION 4.05. Deposit of Redemption Price. On or prior to any Redemption
Date, but, in any event, not later than (i) 12:00 noon New York City time on the
applicable Redemption Date for Securities payable only in the United States, or
(ii) the close of business on the Business Day prior to the applicable
Redemption Date for Securities with a Place of Payment outside the United
States, the Company shall deposit with the Trustee or with a Paying Agent in
immediately available funds (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 5.03) an amount of
money sufficient to pay the Redemption Price of, which shall include any premium
and interest payable on, all the Securities which are to be redeemed on that
date.
SECTION 4.06. Securities Payable on Redemption Date. Notice of redemption
having been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified and on such date (unless the Company shall default in the payment of
the Redemption Price) such Securities shall cease to bear interest. Upon
surrender of such Securities for redemption in accordance with said notice, such
Securities shall be paid by the Company at the Redemption Price. In the case of
Fully Registered Securities, unless otherwise provided in such Securities,
instalments of interest whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Fully Registered Securities
registered as such on the relevant Regular Record Dates according to their terms
and the provisions of Section 3.07.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid, bear interest from the
Redemption Date at the rate borne by such Security, or as otherwise provided in
such Security.
SECTION 4.07. Securities Redeemed in Part. Any Security which is to be
redeemed only in part shall be surrendered at the office or agency of the
Company in the Place of Payment (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder of any
Registered Security or his attorney duly authorized in writing) and the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Security or Securities of the same
series, tenor and Stated Maturity of any authorized denominations as requested
by such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
SECTION 4.08. Provisions with Respect to any Sinking Funds. If the form or
terms of any series of Securities shall provide that, in lieu of making all or
any part of any mandatory sinking fund payment with respect to such series of
Securities in cash, the Company may at its option (1) deliver to the Trustee for
cancellation any Securities of such series theretofore acquired by the Company,
or (2) receive credit for any Securities of such series (not previously so
credited) acquired by the Company and theretofore delivered to the Trustee for
cancellation or redeemed other than through the mandatory sinking fund, then (i)
Securities so delivered, redeemed or credited shall be credited at the
applicable sinking fund Redemption Price with respect to Securities of such
series, and (ii) on or before the 60th day
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next preceding each sinking fund Redemption Date with respect to such series of
Securities, the Company will deliver to the Trustee (A) an Officers' Certificate
specifying the portions of such sinking fund payment to be satisfied by payment
of cash and by the delivery or credit of Securities of such series acquired or
so redeemed by the Company, and (B) any Securities to be so delivered, to the
extent not previously surrendered. Such Officers' Certificate shall also state
that the Securities for which the Company elects to receive credit have not been
previously so credited and were not acquired by the Company through operation of
the mandatory sinking fund, if any, provided with respect to such Securities or
are required to be delivered to the Trustee pursuant to Section 3.09 and shall
also state that no Event of Default with respect to Securities of such series
has occurred and is continuing. All Securities so delivered to the Trustee shall
be canceled by the Trustee and no Securities shall be authenticated in lieu
thereof.
If the sinking fund payment or payments (mandatory or optional) with
respect to any series of Securities made in cash plus any unused balance of any
preceding sinking fund payments with respect to Securities of such series made
in cash shall exceed $50,000 (or a lesser sum if the Company shall so request),
unless otherwise provided by the terms of such series of Securities, said cash
shall be applied by the Trustee on the sinking fund Redemption Date with respect
to Securities of such series next following the date of such payment to the
redemption of Securities of such series at the applicable sinking fund
Redemption Price with respect to Securities of such series, together with
accrued interest, if any, to the date fixed for redemption, with the effect
provided in Section 4.06. The Trustee shall select, in the manner provided in
Section 4.03, for redemption on such sinking fund Redemption Date a sufficient
principal amount of Securities of such series to utilize said cash and shall
thereupon cause notice of redemption of the Securities of such series for the
sinking fund to be given in the manner provided in Section 4.04 (and with the
effect provided in Section 4.06) for the redemption of Securities in part at the
option of the Company. Any sinking fund moneys not so applied or allocated by
the Trustee to the redemption of Securities of such series shall be added to the
next cash sinking fund payment with respect to Securities of such series
received by the Trustee and, together with such payment, shall be applied in
accordance with the provisions of this Section 4.08. Any and all sinking fund
moneys with respect to Securities of any series held by the Trustee at the
Maturity of Securities of such series, and not held for the payment or
redemption of particular Securities of such series, shall be applied by the
Trustee, together with other moneys, if necessary, to be deposited sufficient
for the purpose, to the payment of the principal of the Securities of such
series at Maturity.
On or before each sinking fund Redemption Date provided with respect to
Securities of any series, the Company shall pay to the Trustee in cash a sum
equal to all accrued interest, if any, to the date fixed for redemption on
Securities to be redeemed on such sinking fund Redemption Date pursuant to this
Section 4.08.
SECTION 4.09. Applicability of Early Repayment Provisions. Repayment of
Securities of any series before their Stated Maturity at the option of Holders
thereof shall be made in accordance with the terms of such Securities and
(except as otherwise specified as contemplated by Section 3.01 for Securities of
any series) in accordance with Sections 4.10, 4.11, 4.12 and 4.13.
SECTION 4.10. Repayment of Securities. Securities of any series subject to
repayment in whole or in part at the option of the Holders thereof will, unless
otherwise provided in the terms of such Securities, be repaid at a price equal
to the principal amount thereof, together with interest thereon accrued to the
Repayment Date specified in the terms of such Securities. On or before the
Repayment Date, the Company will deposit with the Trustee or with a Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate and hold in
trust as provided in Section 5.03) an amount of money sufficient to pay the
Repayment Price of all the Securities which are to be repaid on such date.
SECTION 4.11. Exercise of Option. Unless otherwise provided in the terms of
such Securities, to be repaid at the option of the Holder, (a) in the case of
any definitive Security so providing for such repayment, such Security, together
with the "Option to Elect Repayment" form on the reverse thereof duly
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completed by the Holder, or (b) in the case of any Global Security so providing
for such repayment, such notice or notices as may be set forth therein, must be
received by the Trustee or any other Person designated by the Company at the
Place of Payment therefor specified in the terms of such Security (or at such
other place or places of which the Company shall from time to time notify the
Holders of such Securities) not earlier than 30 days nor later than 15 days
(unless a shorter notice shall be satisfactory to the Trustee) prior to the
Repayment Date. If less than the entire principal amount of such Security is to
be repaid in accordance with the terms of such Security, the principal amount of
such Security to be repaid, in increments of $1,000 unless otherwise specified
in the terms of such Security, and the denomination or denominations of the
Security or Securities to be issued to the Holder for the portion of the
principal amount of such Security surrendered that is not to be repaid must be
specified. The principal amount of any Security providing for repayment at the
option of the Holder thereof may not be repaid in part, if, following such
repayment, the unpaid principal amount of such Security would be less than the
minimum authorized denomination of Securities of the series of which such
Security to be repaid is a part. Except as otherwise may be provided by the
terms of any Security providing for repayment at the option of the Holder
thereof, exercise of the repayment option by the Holder shall be irrevocable
unless waived by the Company.
SECTION 4.12. When Securities Presented for Repayment Become Due and
Payable. If Securities of any series providing for repayment at the option of
the Holders thereof shall have been surrendered as provided in Section 4.11 and
as provided by the terms of such Securities, such Securities or the portions
thereof, as the case may be, to be repaid shall become due and payable and shall
be paid by the Company on the Repayment Date therein specified, and on and after
such Repayment Date (unless the Company shall default in the payment of such
Securities on such Repayment Date) interest on such Securities or the portions
thereof, as the case may be, shall cease to accrue.
SECTION 4.13. Securities Repaid in Part. Upon surrender of any Security
which is to be repaid in part only, the Company shall execute and the Trustee
shall authenticate and deliver to the Holder of such Security, without service
charge and at the expense of the Company, a new Security or Securities of the
same series and Stated Maturity, of any authorized denomination specified by the
Holder, in an aggregate principal amount equal to and in exchange for the
portion of the principal of such Security so surrendered which is not to be
repaid.
ARTICLE FIVE
COVENANTS
SECTION 5.01. Payment of Principal, Premium and Interest; Compliance with
Terms. With respect to each series of Securities, the Company will duly and
punctually pay the principal of, premium, if any, and interest, if any, on the
Securities of such series in accordance with the terms of the Securities of such
series and this Indenture, and will duly comply with all the other terms,
agreements and conditions contained in, or made in the Indenture for the benefit
of, the Securities of such series.
SECTION 5.02. Maintenance of Office or Agency. The Company will maintain
an office or agency in the Place of Payment where Securities may be presented or
surrendered for payment, where Registered Securities may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and of
any change in the location, of such office or agency. If at any time the Company
shall fail to maintain such office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Principal Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee its agent to receive all
such presentations, surrenders, notices and demands.
SECTION 5.03. Money for Security Payments to Be Held in Trust. If the
Company shall at any time act as its own Paying Agent for any series of
Securities, it will, subject to Section 4.05, on or before
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each due date of the principal of, premium, if any, or interest on any of the
Securities of such series, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal, premium or
interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities, it will, subject to Section 4.05, on or prior to each due date of
the principal of, premium, if any, or interest on any Securities of such series,
deposit with a Paying Agent a sum sufficient to pay the principal, premium, if
any, or interest so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal, premium or interest, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
The Company will cause each Paying Agent other than the Trustee for any
series of Securities to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee subject to the provisions
of this Section, that such Paying Agent will
(1) hold all sums held by it for the payment of principal of, premium,
if any, or interest on Securities of such series in trust for the benefit
of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities of such series) in the making of any payment
of principal, premium, if any, or interest on the Securities of such
series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by the Company or such Paying Agent to the
Trustee, the Company or such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal, premium, if any, or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium, if any, or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be mailed to the Holder at the Holder's last
known address or published once, in an Authorized Newspaper in the Place of
Payment, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
mailing or publication, any unclaimed balance of such money then remaining will
be repaid to the Company.
SECTION 5.04. Statement as to Compliance. The Company will deliver to the
Trustee, within 120 days after the end of each fiscal year, a certificate of the
principal executive officer, principal financial officer or principal accounting
officer of the Company stating that
(1) a review of the activities of the Company during such year and of
performance under this Indenture and under the terms of the Securities has
been made under his supervision and
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(2) to the best of his knowledge, based on such review, the Company has
complied with all conditions and covenants under this Indenture and under
the terms of the Securities throughout such year, or, if there has been a
default in compliance with such conditions and covenants, specifying each
such default known to him and the nature and status thereof.
For purposes of this Section 5.04, such compliance shall be determined
without regard to any period of grace or requirement of notice provided under
this Indenture.
SECTION 5.05. Corporate Existence. Subject to Article Ten, the Company
will do, or cause to be done, all things necessary to preserve and keep in full
force and effect its corporate existence.
SECTION 5.06. Limitation on Liens. So long as any of the Securities shall
be Outstanding, the Company will not create or suffer to exist, or permit any of
its Restricted Subsidiaries to create or suffer to exist, any lien, security
interest or other charge or encumbrance, or any other type of preferential
arrangement, upon or with respect to any of its properties (other than any
"margin stock" as that term is defined in Regulation U issued by the Board of
Governors of the Federal Reserve System), whether now owned or hereafter
acquired, or assign, or permit any of its Restricted Subsidiaries to assign, any
right to receive income, in each case to secure any Debt of any Person without
making effective provision whereby all of the Securities of each series
(together with, if the Company shall so determine, any other Debt of the Company
or such Restricted Subsidiary then existing or thereafter created which is not
subordinate to the Securities of each series) shall be equally and ratably
secured with the indebtedness or obligations secured by such security; provided
that the Company or its Restricted Subsidiaries may create or suffer to exist
any lien, security interest, charge, encumbrance or preferential arrangement of
any kind in, of or upon any of the properties or assets of the Company or its
Restricted Subsidiaries to secure any Debt or Debts in an aggregate amount at
any time outstanding not greater than 20% of the Consolidated Net Worth of the
Company; and provided, further, that the foregoing restrictions shall not apply
to any of the following:
(i) deposits, liens or pledges to enable the Company or any Restricted
Subsidiary to exercise any privilege or license or to secure payments of
workers' compensation or unemployment insurance, or to secure the
performance of bids, tenders, contracts (other than for the payment of
money) or statutory landlords' liens under leases to which the Company or
any such Restricted Subsidiary is a party or to secure public or statutory
obligations of the Company or any such Restricted Subsidiary or to secure
surety, stay or appeal bonds to which the Company or any such Restricted
Subsidiary is a party, but as to all of the foregoing only if the same
shall arise and continue in the ordinary course of business or other
similar deposits or pledges made and continued in the ordinary course of
business;
(ii) liens imposed by law, such as mechanic's, materialmen's,
workman's, repairman's or carrier's liens but only if arising, and only so
long as continuing, in the ordinary course of business or other similar
liens arising and continuing in the ordinary course of business or
deposits or pledges in the ordinary course of business to obtain the
release of such liens;
(iii) liens arising out of judgments or awards against the Company or
any Restricted Subsidiary in an aggregate amount not to exceed the greater
of (a) 15% of the Consolidated Net Worth of Xerox or (b) the minimum
amount which, if subtracted from such Consolidated Net Worth would reduce
such Consolidated Net Worth below $3.2 billion, and in each case with
respect to which the Company or any such Restricted Subsidiary shall in
good faith be prosecuting an appeal or proceeding for review or liens
incurred by the Company or any such Restricted Subsidiary for the purpose
of obtaining a stay or discharge in the course of any legal proceedings to
which the Company or any such Restricted Subsidiary is a party;
(iv) liens for taxes if such taxes shall not at the time be delinquent
or thereafter can be paid without penalty, or are being contested in good
faith and by appropriate proceedings, or minor survey exceptions or minor
encumbrances, easements or reservations of or rights of others for rights
of
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way, sewers, electric lines, telegraph and telephone lines and other
similar purposes or zoning or other restrictions as to the use of real
properties which encumbrances, easements, reservations, rights and
restrictions do not in the aggregate materially detract from the value of
the said properties or materially impair their use in the operation of the
business of the Company or any Restricted Subsidiary owning the same;
(v) liens in favor of any government or any department or agency
thereof or in favor of a prime contractor under a government contract and
resulting from the acceptance of progress or partial payments under
government contracts or sub-contracts thereunder;
(vi) liens, security interests, charges, encumbrances, preferential
arrangements and assignments of income in existence on the date hereof;
(vii) purchase money liens or purchase money security interests upon or
in any property acquired or held by the Company or any Restricted
Subsidiary in the ordinary course of business to secure the purchase price
of such property or to secure indebtedness incurred solely for the purpose
of financing the acquisition of such property;
(viii) liens or security interests existing on property at the time of
its acquisition;
(ix) liens incurred (no matter when created) in connection with the
Company or any Restricted Subsidiary engaging in leveraged or single
investor lease transactions, provided that the instruments creating or
evidencing any borrowings secured by such lien shall provide that such
borrowings are payable solely out of the income and proceeds of the
property subject to such lien and are not a corporate obligation of the
Company or any such Restricted Subsidiary;
(x) the replacement, extension or renewal of any lien, security
interest, charge or encumbrance, preferential arrangement or assignment of
income permitted by clauses (i) through (ix) above upon or in the same
property theretofore subject thereto or the replacement, extension or
renewal (without increase of principal amount) of the indebtedness secured
thereby; and
(xi) liens on any assets of the Company or any Restricted Subsidiary of
up to $500,000,000 which may be incurred in connection with the sale or
assignment of assets of the Company or such Restricted Subsidiary for cash
where the proceeds are applied to repayment of Debt of the Company or such
Restricted Subsidiary and/or invested by the Company or such Restricted
Subsidiary in assets which would be reflected as receivables on the
Company's or such Restricted Subsidiary's balance sheet in accordance with
generally accepted accounting principles.
SECTION 5.07. Waiver of Covenants. The Company may omit, in respect of any
series of Securities, in any particular instance to comply with any covenant or
condition set forth in Section 5.06 hereof, if before or after the time for such
compliance the Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding of such series shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such covenant or condition shall remain in full
force and effect.
ARTICLE SIX
SECURITYHOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 6.01. Company to Furnish Trustee Names and Addresses of
Securityholders. The Company will furnish or cause to be furnished to the
Trustee (a) semiannually, not more than 10 days after each __________ and
___________, commencing ________________, a list, in such form as the
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Trustee may reasonably require, containing all the information in the possession
or control of the Company, or any of its Paying Agents other than the Trustee,
as to the names and addresses of the Holders of Securities as of such
_____________ or ______________, and (b) at such other times as the Trustee may
request in writing, within 30 days after receipt by the Company of any such
request, a list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished; provided, however, that so long as the
Trustee is the Security Registrar and all of the Securities of any series are
Registered Securities, no such list shall be required to be furnished in respect
of such series, but in any event the Company shall be required to furnish such
information concerning the Holders of Unregistered Securities which is known to
the Company; provided, however, that the Company shall have no obligation to
investigate any matter relating to any Holder of an Unregistered Security.
SECTION 6.02. Preservation of Information; Communications to
Securityholders. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information furnished to it or received by it in its
capacity of Security Registrar pursuant to Section 6.01.
(b) If three or more Holders of Securities of any series (hereinafter
referred to as "applicants") apply in writing to the Trustee, accompanied by
reasonable proof that each such applicant has owned a Security of such series
for a period of at least six months preceding the date of such application and
by a copy of the form of proxy or other communication which such applicants
propose to transmit, and such application states that the applicants desire to
communicate with other Holders of Securities of such series or with the Holders
of all Securities with respect to their rights under this Indenture or under
such Securities, then the Trustee shall, within five Business Days after receipt
of the application, at its election, either (i) afford such applicants access to
the information preserved at the time by the Trustee in accordance with Section
6.02(a), or (ii) inform such applicants as to the approximate number of Holders
of Securities of such series or all Securities, as the case may be, whose names
and addresses appear in the information preserved at the time by the Trustee in
accordance with Section 6.02(a), and as to the approximate cost of mailing to
such Holders the form of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of a Security of such series or to all Holders, as the case
may be, whose names and addresses appear in the information preserved at the
time by the Trustee in accordance with Section 6.02(a), a copy of the form of
proxy or other communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender, the Trustee shall mail to such
applicants and file with the Commission, together with a copy of the material to
be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the Holders of
Securities of such series or all Holders, as the case may be, or would be in
violation of applicable law. Such written statement shall specify the basis of
such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all Holders of such series or all Holders , as the case may be,
with reasonable promptness after the entry of such order and the renewal of such
tender; otherwise, the Trustee shall be relieved of any obligation or duty to
such applicants with respect to their application.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee shall
be held accountable by reason of the disclosure of any such information as to
the names and address of the Holders of Securities in accordance with Section
6.02(b), regardless of the source from which such information was derived, and
that the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 6.02(b).
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SECTION 6.03. Reports by Trustee. Within 60 days after each
________________, commencing ____________________, the Trustee shall transmit to
Securityholders a report as provided in Section 313(a) of the TIA if so required
by such Section.
SECTION 6.04. Reports by Company. The Company will
(a) file with the Trustee, within 30 days after the Company is required to
file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act; or, if the the Company is
not required to file information, documents and reports pursuant to either of
said Sections, then it will file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 or 15(d) of the Exchange
Act, in respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants of this Indenture as may be required from time
to time such rules and regulations; and
(c) mail or cause to be mailed to all Securityholders, in the manner and
to the extent provided in Section 313(c) of the TIA, such summaries of any
information, documents and reports required to be filed by the Company pursuant
to clauses (a) and (b) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
ARTICLE SEVEN
REMEDIES
SECTION 7.01. Events of Default. "Event of Default", with respect to any
series of Securities, wherever used herein, means each one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body), unless it is either inapplicable to a
particular series or it is specifically deleted or modified in the supplemental
indenture under which such series of Securities is issued or in the form of
Security for such series:
(1) default in the payment of any interest upon any Security of such
series when the same becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of or premium, if any, on
any Security of such series at its Maturity; or
(3) default in the making or satisfaction of any sinking fund payment
or analogous obligation when the same becomes due by the terms of the
Securities of such series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in respect of the Securities of such series (other than a
covenant or warranty in respect of the Securities of such series a default
in whose performance or whose breach is elsewhere in this Section
specifically dealt with), and continuance of such default or breach for a
period of 90 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the
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Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of such series, a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) the entry of a decree by a court having jurisdiction in the
premises adjudging the Company bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment
or composition of or in respect of the Company under the Federal Bankruptcy
Code or any other applicable Federal or State law, or appointing a
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding-up or liquidation of its affairs, and the continuance
of any such decree or order unstayed and in effect for a period of 60
consecutive days; or
(6) the institution by the Company of proceedings to be adjudicated a
bankrupt or insolvent or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under the
Federal Bankruptcy Code or any other applicable Federal or State law, or
the consent by it to the filing of any such petition or to the appointment
of a receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action by
the Company in furtherance of any such action; or
(7) any other Event of Default provided in the supplemental indenture
under which such series of Securities is issued or in the form of Security
for such series.
SECTION 7.02. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default with respect to any series of Securities for which there are
Securities Outstanding occurs and is continuing, then, and in every such case,
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series (each such series acting as a separate
class) may declare the principal (or, if the Securities of such series are
Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of the Securities of such series) of all the
Securities of such series to be immediately due and payable, by a notice in
writing to the Company (and to the Trustee if given by Securityholders), and
upon any such declaration the same shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of such series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue instalments of interest on all Securities of such
series,
(B) the principal of and premium, if any, on any Securities of
such series which have become due otherwise than by such declaration
of acceleration, and interest thereon at the rate or rates prescribed
therefor by the terms of the Securities of such series, to the extent
that payment of such interest is lawful,
(C) to the extent that payment of such interest is lawful,
interest upon overdue instalments of interest at the rate or rates
prescribed therefor by the terms of the Securities of such series, and
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(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to such series of Securities,
other than the non-payment of the principal of Securities of such series
which have become due solely by such acceleration, have been cured or
waived as provided in Section 7.12.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 7.03. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if
(1) default is made in the payment of any instalment of interest on
any Security of any series when such interest becomes due and payable and
such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of or premium, if
any, on any Security of any series at the Maturity thereof, or
(3) default is made in the making or satisfaction of any sinking fund
payment or analogous obligation when the same becomes due by the terms of
the Securities of any series,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holder of any such Security (or Holders of Securities of any such series in the
case of Clause (3) above), the whole amount then due and payable on any such
Security (or Securities of any such series in the case of Clause (3) above) for
principal, premium, if any, and interest, with interest upon the overdue
principal and premium, if any (to the extent that payment of such interest is
lawful), and (to the extent that payment of such interest shall be legally
enforceable) upon overdue instalments of interest, at the rate or rates
prescribed therefor by the terms of any such Security (or Securities of any such
series in the case of Clause (3) above); and, in addition thereto, such further
amount as shall be sufficient to cover the reasonable costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to any series of Securities occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 7.04. Trustee May File Proofs of Claim. With respect to any proofs
of claims filed by the Trustee pursuant to Section 317 of the TIA, the Trustee
shall be entitled to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same and any receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Securityholder to make
such payments to the Trustee, and in the event that the Trustee shall consent to
the making of such payments directly to the Securityholders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 8.05.
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Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the trustee to
vote in respect of the claim of any Securityholder in any such proceeding.
SECTION 7.05. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under the Indenture or under the Securities of
any series may be prosecuted and enforced by the Trustee without the possession
of any of the Securities of such series or the related coupons or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities of such series in respect of which such judgment has been recovered.
SECTION 7.06. Application of Money Collected. Any money collected by the
Trustee with respect to a series of Securities pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee, and,
in case of the distribution of such money on account of principal, premium or
interest, upon presentation of the Securities of such series or the coupons
appertaining thereto, as the case may be, and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 8.05;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities of such series for principal, premium, if any, and interest, in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on Securities of such series, for principal, premium, and
interest, respectively; and
THIRD: To the Company.
SECTION 7.07. Limitation on Suits. No Holder of any Security of any series
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to Securities of such series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of such series;
it being understood and intended that no one or more Holders of Securities of
such series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holders of Securities of such series or to obtain or to seek
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to obtain priority or preference over any other such Holders or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all the Holders of Securities of such series.
SECTION 7.08. Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in
every such case the Company, the Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 7.09. Rights and Remedies Cumulative. Except as provided in the
last paragraph of Section 3.06, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 7.10. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy given
by this Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 7.11. Control by Securityholders. The Holders of a majority in
principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee with respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee shall have the right to decline to follow any such
direction if the Trustee in good faith shall, by a Responsible Officer or
Officers of the Trustee, determine that the proceeding so directed would be
prejudicial to the Holders of Securities of such series not joining in any
such direction or would involve the Trustee in personal liability, and
(3) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 7.12. Waiver of Past Defaults. The Holders of a majority in
principal amount of the Outstanding Securities of any series may on behalf of
the Holders of all the Securities of such series waive any past default
hereunder and its consequences, except a default not theretofore cured
(1) in the payment of the principal of, premium, if any, or interest
on any Security of such series, or in the payment of any sinking fund
instalment or analogous obligation with respect to Securities of such
series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
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Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of the Securities of such series under this Indenture; but no such waiver shall
extend to any subsequent or other default or impair any right consequent
thereon.
SECTION 7.13. Waiver of Stay or Extension Laws. The Company covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon,
or plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE EIGHT
THE TRUSTEE
SECTION 8.01. Certain Rights of Trustee. Except as otherwise provided in
Section 315 of the TIA:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, note or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, note or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
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(h) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture;
and
(i) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if the Trustee in good faith believes that the
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
SECTION 8.02. Not Responsible for Recitals or Issuance of Securities. The
recitals contained herein and in the Securities, except the certificates of
authentication, shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application by
the Company of Securities or the proceeds thereof.
SECTION 8.03. May Hold Securities. The Trustee, any Paying Agent, Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
310(b) and 311 of the TIA, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Paying Agent, Security Registrar or
such other agent.
[The following indenture shall be excluded from the operation of Section
310(b)(1) of the TIA: ]
SECTION 8.04. Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
SECTION 8.05. Compensation and Reimbursement. The Company agrees
(1) to pay to the Trustee from time to time such reasonable
compensation for all services rendered by it hereunder as may be agreed
upon between the Company and the Trustee (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of, premium, if any, or interest on
particular Securities.
SECTION 8.06. Corporate Trustee Required; Eligibility. The Trustee shall
at all times satisfy the eligibility requirements of Section 310 of the TIA and
together with its immediate parent maintain a combined capital and surplus of at
least $50,000,000. If the Trustee together with its immediate parent
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publishes a report of condition at least annually, pursuant to law or pursuant
to the requirements of any Federal, State, territorial, or District of Columbia
supervising or examining authority to which the Trustee is subject, then, for
purposes of this section, the combined capital and surplus of the Trustee shall
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee with respect to any series of
Securities shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 8.07. Resignation and Removal; Appointment of Successor. (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 8.08.
(b) The Trustee may resign with respect to any series of Securities at any
time by giving written notice thereof to the Company. If an instrument of
acceptance by a successor Trustee shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee with respect to Securities of such series.
(c) The Trustee may be removed with respect to any series of Securities at
any time by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b)(i) of the TIA
with respect to any series of Securities after written request therefor by
the Company or by any Securityholder who has been a bona fide Holder of a
Security of such series for at least six months, or
(2) the Trustee shall cease to be eligible under Section 8.06 hereof or
Section 310(a) of the TIA with respect to any series of Securities and
shall fail to resign after written request therefor by the Company or by
any such Securityholder, or
(3) the Trustee shall become incapable of acting with respect to any
series of Securities or shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to such series, or (ii) subject to Section 315(e) of the
TIA, any Securityholder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee with respect to such
series.
(e) If the Trustee shall resign, be removed or become incapable of acting
with respect to any series of Securities, or if a vacancy shall occur in the
office of Trustee with respect to any series of Securities for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee with
respect to such series of Securities. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to such series of Securities shall be appointed
by the Act of the Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the retiring Trustee with
respect to such series, the successor Trustee so appointed shall, forthwith upon
its acceptance of such appointment, become the successor Trustee with respect to
such series and supersede the successor Trustee appointed by the Company with
respect to such series. If no successor Trustee with respect to such series
shall have been so appointed by the Company or the Holders of Securities of such
series and accepted appointment in the manner hereinafter provided, any
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Securityholder who has been a bona fide Holder of a Security of such series for
at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to any series and each appointment of a successor
Trustee with respect to any series by mailing written notice of such event by
first-class mail, postage prepaid, to Registered Holders of Securities of such
series as their names and addresses appear in the Security Register and to all
other Holders of Securities of such series by publishing notice of such event
once in an Authorized Newspaper in the Place of Payment. Each notice shall
include the name of such successor Trustee and the address of its Principal
Corporate Trust Office.
SECTION 8.08. Acceptance of Appointment by Successor. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become
effective with respect to all or any series as to which it is resigning as
Trustee, and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to all or any such series; but, on request
of the Company or such successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of such retiring Trustee
with respect to all or any such series; and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to all or any such series; subject nevertheless
to its lien, if any, provided for in Section 8.05. Upon request of any such
successor Trustee, the Company shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts.
In case of the appointment hereunder of a successor Trustee with respect
to the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of any
applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of any series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee, and shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be Trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Trustee.
No successor Trustee with respect to a series of Securities shall accept
its appointment unless at the time of such acceptance such successor Trustee
shall be qualified and eligible with respect to such series under this Article
and the TIA.
SECTION 8.09. Merger Conversion, Consolidation or Succession to Business
of Trustee. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be otherwise qualified and eligible under
this Article and the TIA, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
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SECTION 8.10. Appointment of Authenticating Agent. As of the date of the
Indenture and at any time when any of the Securities remain Outstanding the
Trustee may appoint an Authenticating Agent or Agents with respect to one or
more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon exchange,
registration of transfer, or partial redemption thereof, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder.
Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall meet the
requirements of Section 8.06, unless otherwise agreed to by the Company, as
though it were trustee.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in accordance with Section 1.06 to all Holders of Securities of the
series with respect to which such Authenticating Agent will serve. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent.
The provisions of Sections 3.08, 8.02 and 8.03 shall be applicable to each
Authenticating Agent.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
The Trustee shall incur no liability for the appointment or for any
misconduct or negligence of an Authenticating Agent. In the event the Trustee
does incur liability for any such misconduct or negligence of the Authenticating
Agent, the Company agrees to indemnify the Trustee for, and hold it harmless
against, any such liability, including the costs and expenses of defending
itself against any liability in connection with such misconduct or negligence of
the Authenticating Agent.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
This is one of the Securities, of the series designated herein, described
in the within-mentioned Indenture.
[NAME OF TRUSTEE]
as Trustee
By..................................
As Authenticating Agent
By..................................
Authorized Officer
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Securityholders.
Without the consent of any Holders of any Securities, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company, and the assumption by any such successor of the covenants of the
Company herein and in the Securities contained; or
(2) to evidence and provide for the acceptance of appointment by
another corporation as a successor Trustee hereunder with respect to one
or more series of Securities and to add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant
to Section 8.08; or
(3) to add to the covenants of the Company, for the benefit of the
Holders of Securities of all or any series, or to surrender any right or
power herein conferred upon the Company, provided that such action shall
not adversely affect the interests of the Holders of Securities of any
series in any material respect; or
(4) to cure any ambiguity, to correct or supplement any provision in
this Indenture or in the Securities which may be inconsistent with any
other provision in this Indenture or in such Securities, or to make any
other provisions with respect to matters or questions arising under this
Indenture or in such Securities; or
(5) to establish the form of any Security, as permitted by Section
2.02, and to provide for the issuance of any series of Securities, as
permitted by Section 3.01, and to set forth the terms thereof; or
(6) to make any other amendments, modifications or supplements hereto
or to the Securities, provided, that such amendments, modifications or
supplements shall only apply to Securities of one or more series to be
thereafter issued or shall not adversely affect the rights of any Holder
of any Outstanding Security.
SECTION 9.02. Supplemental Indentures with Consent of Securityholders.
With the consent of the Holders of not less than a majority in principal amount
of the Outstanding Securities of each series affected by such supplemental
indenture or indentures (each such series voting separately as a class), by Act
of said Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
such Securities or of modifying in any manner the rights of the Holders of
Securities of each such series under this Indenture or such Securities;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby:
(1) change the Maturity of the principal of, or the premium if any, or
the Stated Maturity of any instalment of interest on, any Security, or
reduce the principal amount thereof or any premium thereon or the rate of
interest thereon, or change the method of computing the amount of
principal thereof on any date or change the coin or currency in which any
Security or any premium or interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or
after the Maturity or the Stated Maturity, as the case may be, thereof
(or, in the case of redemption or repayment, on or after the Redemption
Date or the Repayment Date, as the case may be); or
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(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
of certain defaults hereunder and their consequences) provided for in this
Indenture; or
(3) modify any of the provisions of this Section, Section 5.07 or
Section 7.12, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby.
It shall not be necessary for any Act of Securityholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel in compliance with Section 314
of the TIA stating that the execution of such supplemental indenture is
authorized or permitted by and complies with this Indenture. The Trustee may,
but shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 9.04. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
TIA as then in effect.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall, if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Securities
so modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
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ARTICLE TEN
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 10.01. Company May Consolidate, etc., Only on Certain Terms. The
Company shall not consolidate with or merge into any other corporation or convey
or transfer its properties and assets substantially as an entirety to any
Person, unless
(1) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer
the properties and assets of the Company substantially as an entirety
shall be organized and existing under the laws of the United States of
America or any State or the District of Columbia, and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment
of the principal of, premium, if any, and interest on all the Securities
and the performance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
conveyance or transfer and such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to
such transaction have been complied with.
SECTION 10.02. Successor Corporation Substituted. Upon any consolidation
or merger, or any conveyance or transfer of the properties and assets of the
Company substantially as an entirety in accordance with Section 10.01, the
successor corporation formed by such consolidation or into which the Company is
merged or to which such conveyance or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor corporation had been
named as the Company herein. In the event of any such conveyance or transfer,
the Company as the predecessor corporation shall be discharged from its
obligations hereunder and may be dissolved, wound up and liquidated at any time
thereafter.
SECTION 10.03. Securities to be Secured in Certain Events. If, upon any
such consolidation or merger of the Company, or upon any conveyance or transfer
of the properties and assets of the Company substantially as an entirety to any
other Person, any property, whether now owned or hereafter acquired, or right to
receive income of the Company or any Restricted Subsidiary would thereupon
become subject to any lien, security interest or other charge or encumbrance, or
any other type of preferential arrangement (any such lien, security interest or
other charge or encumbrance, or any other type of preferential arrangement being
herein called a "Mortgage"), unless the Company could create such Mortgage
pursuant to Section 5.06 without equally and ratably securing the Securities,
the Company, prior to such consolidation, merger, conveyance or transfer, will
secure the Outstanding Securities of each series hereunder, equally and ratably
with (or prior to) the Debt secured by such Mortgage.
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
SECTION 11.01. Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly provided for
and rights to receive payments thereon pursuant to Section 11.02), with respect
to a series of Securities, and the Trustee, on demand of and at the expense of
the Company, shall execute
40
<PAGE>
proper instruments acknowledging satisfaction and discharge of this Indenture
with respect to such series of Securities, when
(1) either
(A) all Securities of such series theretofore authenticated and
delivered (other than (i) Securities of such series which have been
destroyed, lost or stolen and which have been replaced or paid as provided
in Section 3.06, and (ii) Securities of such series for whose payment money
has theretofore been deposited in trust or segregated and held in trust by
the Company and thereafter repaid to the Company or discharged from such
trust, as provided in Section 5.03) have been delivered to the Trustee for
cancellation; or
(B) all such Securities of such series not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Maturity within one
year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee, as trust funds
in trust for the purpose, an amount sufficient to pay and discharge
the entire indebtedness on such Securities of such series not
theretofore delivered to the Trustee for cancellation, for principal,
premium, if any, and interest, if any, to the date of such deposit (in
the case of Securities of such series which have become due and
payable), or to the Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to the Securities of such series;
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
with respect to the Securities of such series have been complied with; and
(4) the Company has delivered to the Trustee an Opinion of Counsel
stating that (i) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling or (ii) since the date of this
Indenture there has been a change in the applicable Federal income tax law,
in either case to the effect that, and based thereon such Opinion will
confirm that, the Holders of the Outstanding Securities of such series will
not recognize income, gain or loss for Federal income tax as a result of
such satisfaction and discharge and will be subject to the Federal income
tax on the same amounts, in the same manner and at the same times as would
have been the case if such satisfaction and discharge had not occurred.
Notwithstanding the satisfaction and discharge of the Indenture, the obligations
of the Company to the Trustee under Section 8.05 shall survive.
SECTION 11.02. Application of Trust Money. All money deposited with the
Trustee pursuant to Section 11.01 shall be held in trust and applied by it, in
accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent), as the Trustee may determine, to the Persons
entitled thereto, of the
41
<PAGE>
principal, premium, if any, and interest for whose payment such money has been
deposited with the Trustee; but such money need not be segregated from other
funds except to the extent required by law.
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 12.01. Exemption from Individual Liability. No recourse under or
upon any obligation, covenant or agreement of this Indenture, or of any
Security, or for any claim based thereon or otherwise in respect thereof, 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;
it being expressly understood that this Indenture and the obligations issued
hereunder are solely corporate obligations of the Company, and that no such
personal liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors, as such, of the Company or
of any successor corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom; and that any and 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 incorporator, stockholder, officer or
director, as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied therefrom,
are hereby expressly waived and released as a condition of, and as consideration
for, the execution of this Indenture and the issuance of the Securities.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 13.01. Purposes of Meetings. A meeting of Holders of Securities of
all or any series may be called at any time and from time to time pursuant to
the provisions of this Article for any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to waive any default hereunder and its
consequences, or to take any other action authorized to be taken by the
Holders of Securities pursuant to any of the provisions of Article Seven;
(2) to remove the Trustee and appoint a successor Trustee pursuant to
the provisions of Article Eight;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 9.02; or
(4) to take any other action authorized to be taken by or on behalf of
the Holders of any specified percentage in aggregate principal amount of
the Securities of all or any series, as the case may be, under any other
provision of this Indenture or under applicable law.
SECTION 13.02. Call of Meetings by Trustee. The Trustee may at any time
call a meeting of Holders of Securities of all or any series to take any action
specified in Section 13.01 to be held at such time and at such place as the
Trustee shall determine or at such other place as may be provided with respect
to the Securities of such series. Notice of every meeting of the Holders of
Securities of all or any series, setting forth the time and place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be given to all holders of Securities of each series that are to be
affected by the action proposed to be taken at such meeting by publication at
least twice in an Authorized Newspaper
42
<PAGE>
in the Borough of Manhattan, The City of New York or in such other place as may
be provided with respect to the Securities of such series prior to the date
fixed for the meeting, the first publication to be not less than 20 nor more
than 180 days prior to the date fixed for the meeting, and the last publication
to be not more than five days prior to the date fixed for the meeting, or such
notice may be given to Registered Holders by mailing the same by registered
mail, postage prepaid, to the Holders of Registered Securities at the time
Outstanding, at their address as they shall appear in the Security Register, not
less than 20 nor more than 60 days prior to the date fixed for the meeting.
Failure to receive such notice or any defect therein shall in no case affect the
validity of any action taken at such meeting. Any meeting of Holders of
Securities of all or any series shall be valid without notice if the Holders of
all such Securities Outstanding, the Company and the Trustee are present in
person or by proxy or shall have waived notice thereof before or after the
meeting.
SECTION 13.03. Call of Meetings by Company or Securityholders. In case at
any time the Company, by Board Resolution, or the Holders of at least 10% in
aggregate principal amount of Securities then Outstanding of each series that
may be affected by the action proposed to be taken at the meeting shall have
requested the Trustee to call a meeting of Holders of Securities of all series
that may be so affected to take any action authorized in Section 13.01 by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have mailed or made the first
publication of the notice of such meeting within 30 days after receipt of such
request, then the Company or the Holders in the amount above specified may
determine the time and the place referred to in Section 13.02 for such meeting
and may call such meeting by mailing or publishing notice thereof as provided in
Section 13.02.
SECTION 13.04. Qualifications for Voting. To be entitled to vote at any
meeting of Securityholders a Person shall (a) be a Holder of one or more
Securities of a series affected by the action proposed to be taken, or (b) be a
Person appointed by an instrument in writing as proxy by the Holder of one or
more such Securities. The right of Securityholders to have their votes counted
shall be subject to the proviso in the definition of "Outstanding" in Section
1.01. The only Persons who shall be entitled to be present or to speak at any
meeting of Securityholders shall be the Persons entitled to vote at such meeting
and their counsel, any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 13.05. Quorum; Adjourned Meetings. At any meeting of
Securityholders, the presence of Persons holding or representing Securities in
an aggregate principal amount sufficient to take action on the business for the
transaction of which such meeting was called shall be necessary to constitute a
quorum. No business shall be transacted in the absence of a quorum unless a
quorum is represented when the meeting is called to order. In the absence of a
quorum within 30 minutes of the time appointed for any such meeting, the meeting
shall, if convened at the request of the Holders of Securities (as provided in
Section 13.03), be dissolved. In any other case the Persons holding or
representing a majority in aggregate principal amount of the Securities
represented at the meeting may adjourn such a meeting for a period of not less
than 10 days with the same effect, for all intents and purposes, as though a
quorum had been present. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be similarly further adjourned for a period
of not less than 10 days. Notice of the reconvening of any such adjourned
meeting shall be given as provided in Section 13.02 except that, in the case of
publication, such notice need be published only once but must be given not less
than five days prior to the date on which the meeting is scheduled to be
reconvened, and in the case of mailing, such notice may be mailed not less than
five days prior to such date.
Any Holder of a Security who has executed an instrument in writing
complying with the provisions of Section 1.04 shall be deemed to be present for
the purposes of determining a quorum and be deemed to have voted; provided,
however, that such holder shall be considered as present or voting only with
respect to the matters covered by such instrument in writing.
43
<PAGE>
Any resolution passed or decision taken at any meeting of the Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all Holders of such series of Securities whether or not present or
represented at the meeting.
SECTION 13.06. Regulations. Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities, in regard to proof of the
holding of Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 13.03, in which case
the Company or the Holders of Securities calling the meeting, as the case may
be, shall in like manner appoint a temporary chairman. A permanent chairman and
a permanent secretary of the meeting shall be elected by vote of the Holders of
a majority in principal amount of the Securities represented at the meeting.
At any meeting each Holder of a Security of a series entitled to vote at
such meeting, or proxy therefor, shall be entitled to one vote for each $1,000
principal amount (in the case of Original Issue Discount Securities, such
principal amount to be determined as provided in the definition of
"Outstanding") of Securities of such series held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote except as a Holder of Securities of such series or proxy therefor.
Any meeting of Holders of Securities duly called pursuant to the provisions of
Section 13.02 or 13.03 at which a quorum is present may be adjourned from time
to time, and the meeting may be held as so adjourned without further notice.
SECTION 13.07. Voting Procedure. The vote upon any resolution submitted to
any meeting of Securityholders shall be by written ballot on which shall be
subscribed the signatures of the Holders of Securities entitled to vote at such
meeting, or proxies therefor, and on which shall be inscribed an identifying
number or numbers or to which shall be attached a list of identifying numbers of
the Securities so held or represented by them. The permanent chairman of the
meeting shall appoint two inspectors of votes who shall count all votes cast at
the meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Holders of Securities shall be prepared by the secretary of the
meeting and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more Persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was mailed or published as provided in
Section 13.02 and, if applicable, Section 13.05. The record shall be signed and
verified by the permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 13.08. Written Consent in Lieu of Meetings. The written
authorization or consent by the Holders of the requisite percentage in aggregate
principal amount of Securities of any series herein provided, entitled to vote
at any such meeting, evidenced as provided in Section 1.04 and filed with the
Trustee, shall be effective in lieu of a meeting of the Holders of Securities of
such series, with respect to any matter provided for in this Article Thirteen.
SECTION 13.09. No Delay of Rights by Meeting. Nothing in this Article
contained shall be deemed or construed to authorize or permit, by reason of any
call of a meeting of Holders of Securities of
44
<PAGE>
any or all series or any rights expressly or impliedly conferred hereunder to
make such call, any hindrance or delay in the exercise of any right or rights
conferred upon or reserved to the Trustee or the Holders of the Securities of
any or all such series under any provisions of this Indenture or the Securities.
__________________________hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
XEROX CREDIT CORPORATION
BY__________________________________
Title:
Attest:
[CORPORATE SEAL]
__________________________________
Title:
__________________________________
BY__________________________________
Title:
Attest:
[CORPORATE SEAL]
__________________________________
Title:
45
<PAGE>
COUNTY OF FAIRFIELD, )
) ss.:
STATE OF CONNECTICUT, )
On this ___________ day of ___________, before me personally appeared
_________________, to me known, who being by me duly sworn, did depose and say
that he resides at _____________________; that he is ________________________
of XEROX CREDIT CORPORATION, one of the corporations described in and which
executed the foregoing instrument; that he knows the corporate seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
__________________________________
Notary Public
My Commission Expires
[NOTARIAL SEAL]
COUNTY OF , )
) ss.:
, )
On this _____day of ___________, before me personally appeared _________,
to me known, who, being by me duly sworn, did depose and say that he resides at
_____________________; that he is _____________________of _____________________,
one of the corporations described in and which executed the foregoing
instrument; that he knows the corporate seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation; and that he signed his
name thereto by like authority.
__________________________________
Notary Public
My Commission Expires
[NOTARIAL SEAL]
Exhibit 5
Xerox Corporation
P.O. Box 1600
Stamford, Connecticut 06904
203-968-3000
Office of General Counsel
Martin S. Wagner
Associate General Counsel,
Corporate, Finance and Ventures
Direct Dial (203) 968-3457
August 1, 1995
Xerox Credit Corporation
100 First Stamford Place
P.O. Box 10347
Stamford, Connecticut 06904-2347
Gentlemen:
As associate General Counsel, Corporate, Finance and Ventures, of Xerox
Corporation, I am familiar with the Registration Statement on Form S-3 filed
under the Securities Act of 1933, as amended ("Registration Statement"),
relating to the proposed offering and sale from time to time by Xerox Credit
Corporation, a Delaware corporation (the "Company"), of debt securities ("Debt
Securities") from which the Company may receive up to an aggregate of
$997,380,000 of proceeds and which will be offered on terms to be determined
at the time of sale. In rendering the opinions set forth herein, either I or
other lawyers in the Office of General Counsel of Xerox Corporation who report
either directly or indirectly to me have examined the Indenture dated as of July
1, 1995, between the Company and The First National Bank of Boston, as Trustee
("Indenture"), under which the Debt Securities are to be issued, the Company's
certificate of incorporation and by-laws, each as amended to date, certain
resolutions of the Board of Directors of the Company and such other documents
and matters of law as have been considered necessary or desirable for the
purpose.
Based upon the foregoing, it is my opinion that:
1. The Company has been duly incorporated and is validly existing in good
standing under the laws of Delaware.
2. The Debt Securities, when duly authorized by appropriate corporate action
and duly executed and authenticated, and when issued and delivered against
payment therefor as described in the Registration Statement and a Prospectus
Supplement, will be legally issued and validly and legally binding
obligations of the Company and such Debt Securities will be entitled to the
benefits of the Indenture.
I consent to the reference to my name under the caption "Legal Opinions" in the
Prospectus contained in the Registration Statement and to the filing of this
letter as an exhibit to the Registration Statement.
Very truly yours,
MARTIN S. WAGNER
Associate General Counsel,
Corporate, Finance and Ventures
Exhibit 12(a)
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES OF THE COMPANY
(In Millions)
<TABLE>
<CAPTION>
Three Months
Ended March 31, Year Ended December 31,
--------------- ----------------------------------------
1995 1994 1994 1993 1992 1991 1990
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Income before income taxes ...................... $36 $37 $147 $154 $158 $164 $182
--- --- ---- ---- ---- ---- ----
Fixed Charges:
Interest expense
Xerox debt ................................... 1 1 5 4 2 -- 2
Other debt ................................... 52 51 197 205 210 200 205
--- --- ---- ---- ---- ---- ----
Total fixed charges ....................... 53 52 202 209 212 200 207
--- --- ---- ---- ---- ---- ----
Earnings available for fixed charges ............ $89 $89 $349 $363 $370 $364 $389
=== === ==== ==== ==== ==== ====
Ratio of earnings to fixed charges(1) ........... 1.68 1.71 1.73 1.74 1.75 1.82 1.88
</TABLE>
----------
(1) The ratio of earnings to fixed charges has been computed based on the
Company's continuing operations by dividing total earnings available for
fixed charges by total fixed charges. Interest expense has been assigned to
discontinued operations principally on the basis of the relative amount of
gross assets of the discontinued operations. Management believes that this
allocation method is reasonable in light of the amount of debt specifically
assigned to discontinued operations. The discontinued operations consist of
the Company's real-estate development and related financing operations and
its third-party financing and leasing businesses.
Exhibit 12(b)
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES OF XEROX
(In Millions)
<TABLE>
<CAPTION>
Three Months
Ended March 31, Year Ended December 31,
--------------- -----------------------------------------
1995 1994 1994 1993* 1992** 1991*** 1990
---- ---- ---- ----- ------ ------- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Fixed Charges:
Interest expense .............................. $200 $181 $ 732 $ 755 $ 788 $ 758 $ 799
Rental expense ................................ 46 48 190 201 208 206 191
---- ---- ------ ----- ------ ------ ------
Total fixed charges before
capitalized interest ..................... 246 229 922 956 996 964 990
Capitalized interest -- 1 2 5 17 3 --
---- ---- ------ ----- ------ ------ ------
Total fixed charges ......................... $246 $230 $ 924 $ 961 $1,013 $ 967 $ 990
==== ==== ====== ===== ====== ====== ======
Earnings available for fixed charges:
Earnings**** .................................. $311 $256 $1,558 $(227) $ 192 $ 939 $1,116
Less undistributed income in
minority owned companies .................... (13) (2) (54) (51) (52) (70) (60)
Add fixed charges before
capitalized interest ........................ 246 229 922 956 996 964 990
---- ---- ------ ----- ------ ------ ------
Total earnings available for fixed charges ....... $544 $483 $2,426 $ 678 $1,136 $1,833 $2,046
==== ==== ====== ===== ====== ====== ======
Ratio of earnings to fixed charges(1)(2) ......... 2.21 2.10 2.63 0.71 1.12 1.90 2.07
</TABLE>
----------
(1) The ratio of earnings to fixed charges has been computed based on Xerox'
continuing operations by dividing total earnings available for fixed
charges, excluding capitalized interest, by total fixed charges. Fixed
charges consist of interest, including capitalized interest, and one-third
of rent expense as representative of the interest portion of rentals.
Interest expense has been assigned to discontinued operations principally
on the basis of the relative amount of gross assets of the discontinued
operations. Xerox management believes that this allocation method is
reasonable in light of the debt specifically assigned to discontinued
operations. The discontinued operations consist of Xerox' real-estate
development and related financing operations and its third-party financing
and leasing businesses, and Other Financial Services businesses.
(2) Xerox' ratio of earnings to fixed charges includes the effect of Xerox'
finance subsidiaries which primarily finance Xerox equipment. Financing
businesses, due to their nature, traditionally operate at lower earnings to
fixed charges ratio levels than do non-financial companies.
* In 1993, the ratio of earnings to fixed charges includes the effect of the
$1,373 million before-tax ($813 million after-tax) charge incurred in
connection with the restructuring provision and litigation settlements.
Excluding this charge, the ratio was 2.13. 1993 earnings were inadequate to
cover fixed charges. The coverage deficiency was $283 million.
** In 1992, the ratio of earnings to fixed charges includes the effect of the
$936 million before-tax ($778 million after-tax) charge incurred in
connection with the decision to disengage from Xerox' IOFSbusinesses.
Excluding this charge, the ratio was 2.05.
*** In 1991, the ratio of earnings to fixed charges includes the effect of the
$175 million before-tax ($101 million after-tax) charge incurred in
connection with the Document Processing work-force reduction. Excluding
this charge, the ratio was 2.08.
**** Sum of income before income taxes and income attributable to minority
ownership.
Exhibit 23(c)
CONSENT OF IVINS, PHILLIPS & BARKER, CHARTERED
Xerox Credit Corporation
100 First Stamford Place
P.O. Box 10347
Stamford, CT 06904-2347
August 1, 1995
Gentlemen:
We have acted as special tax counsel for Xerox Credit Corporation, a
Delaware corporation (the "Company"), in connection with the proposed offering
and sale from time to time by the Company of up to $1,000,000,000 of the
Company's Medium-Term Notes, Series E (the "Notes"), including preparation of a
Prospectus Supplement to be dated on or about the date hereof covering the Notes
(the "Prospectus Supplement"), which Prospectus Supplement is to be filed with
the Securities and Exchange Commission (the "SEC") on or about the date hereof.
We hereby consent to the reference to us and to the use of our name under
the caption "United States Income Taxation" in the Prospectus Supplement, and to
the filing of a copy of this consent as an exhibit to the Company's Registration
Statement on Form S-3 relating to the Notes.
Very truly yours,
IVINS, PHILLIPS & BARKER, Chartered
Exhibit 24(a)
CERTIFICATE
I, Martin S. Wagner, Secretary of Xerox Credit Corporation, a Delaware
corporation (the "Company"), DO HEREBY CERTIFY that Exhibit A is a true and
correct copy of a resolution duly adopted by a unanimous written consent of the
Board of Directors of the Company dated as of July 7, 1995, and that such
resolution has not been modified, rescinded or revoked and is at present in full
force and effect.
IN WITNESS WHEREOF, the undersigned has executed this Certificate and
affixed the corporate seal of the Company hereto this 1st day of August, 1995.
MARTIN S. WAGNER
---------------------------------
Martin S. Wagner
Secretary
---------------
Exhibit A
RESOLVED: That each officer and director of the Company who may be required
to execute the Registration Statements (whether on behalf of the Company or as
an officer or director thereof) be and hereby is authorized to execute a power
of attorney appointing Stuart B. Ross, Donald R. Altieri, David R. McLellan,
Eunice M. Filter and Martin S. Wagner, and each of them, as true and lawful
attorneys and agents, to execute in his or her name, place and stead (in any
such capacity) the Registration Statements and any and all documents in
connection therewith, and to file the same, in electronic or paper form, with
the SEC, each of said attorneys and agents to have the power to act with or
without the other and to have the full power and authority to do and perform in
the name and on behalf of each of said officers and directors, or both, as the
case may be, every act whatsoever necessary or advisable to be done in the
premises as fully and to all intents and purposes as any such officer or
director could do in person.
Exhibit 24(b)
POWER OF ATTORNEY
Xerox Credit Corporation (the "Company") and each person whose signature
appears below authorize each of Stuart B. Ross, Donald R. Altieri, David R.
McLellan, Eunice M. Filter and Martin S. Wagner to file, either in paper or
electronic form, one or more Registration Statements and amendments thereto
(including post-effective amendments), under the Securities Act of 1933 for the
purpose of registering the offering and sale of a maximum of $1,000,000,000 in
debt securities of the Company, which registration statements and amendments
shall contain such information and exhibits as Stuart B. Ross, Donald R.
Altieri, David R. McLellan, Eunice M. Filter or Martin S. Wagner deemd
appropriate. Each such person hereby appoints each of Stuart B. Ross, Donald R.
Altieri, David R. McLellan, Eunice M. Filter and Martin S. Wagner as
attorneys-in-fact, with full power to act alone, to execute any such
registration statements and any and all amendments thereto and any and all other
documents in connection therewith, in the name of and on behald of the Company
and each such person, individually and in each capacity stated below, including
the power to enter electronically such company identification numbers and
passwords as may be required to effect such filing as described under the rules
and regulations of the Securities and Exchange Commission (the "SEC"), and to
file, either in paper or electronic form, with the SEC a form of this Power of
Attorney. Each such person individually and in such capacities stated below
hereby grants to said attorneys-in-fact, and each of them, full power and
authority to do and perform each and every act and thing whatsoever that said
attorney or attorneys may deem necessary or advisable to carry out fully the
intent of the foregoing as the undersigned could do personally or in the
capacities as aforesaid.
XEROX CREDIT CORPORATION
Dated: July 21, 1995 By
------------------------------
Stuart B. Ross
Chairman, President and
Chief Executive Officer
Chairman, President and
Chief Executive Officer and Director
-------------------------------- (Principal Executive Officer)
(Stuart B. Ross)
Vice President, Treasurer
and Chief Financial
Officer and Director
-------------------------------- (Principal Accounting Officer)
(Donald R. Altieri)
Acting Controller
-------------------------------- (Principal Accounting Officer)
(Donald R. Altieri)
-------------------------------- Director
(Eunice M. Filter)
-------------------------------- Director
(David R. McLellan)
SECURITIES ACT OF 1933 FILE NO: (IF APPLICATION TO DETERMINE ELIGIBILITY
OF TRUSTEE FOR DELAYED OFFERING PURSUANT TO SECTION 305(b)(2)
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)_____
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THE FIRST NATIONAL BANK OF BOSTON
(Exact name of trustee as specified in its charter)
04-2472499
(I.R.S. Employer Identification No.)
100 Federal Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Gary A. Speiss, Cashier and General Counsel
100 Federal Street, 24th Floor, Boston, Massachusetts 02110 (617) 434-2870
(Name, address and telephone number of agent for service)
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XEROX CREDIT CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 06-1024525
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
800 LONG RIDGE ROAD
STAMFORD, CT. 06904-2347
(Address of principal executive offices) (Zip Code)
DEBT SECURITIES
(Title of indenture securities)
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1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it
is subject.
Comptroller of the Currency of the United States, Washington, D.C.
Board of Governors of the Federal Reserve System, Washington, D.C.
Federal Deposit Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Trustee is authorized to exercise corporate trust powers.
2. Affiliations with Obligor and Underwriters.
If the obligor or any underwriter for the obligor is an affiliate of the
trustee, describe each such affiliation.
None with respect to the Trustee
None with respect to Bank of Boston Corporation.
3. through 15 Not applicable.
16. List of Exhibits.
List below all exhibits filed as part of this statement of eligibility and
qualification.
1. A copy of the articles of association of the trustee as now in effect.
A certified copy of the Articles of Association of the trustee is filed as
Exhibit No. 1 to statement of eligibility and qualification No. 22-9514 and is
incorporated herein by reference thereto.
2. A copy of the certificate of authority of the trustee to commence
business, if not contained in the articles of association.
A copy of the certificate of T. McLean Griffin, Cashier of the trustee,
dated February 3, 1978, as to corporate succession containing copies of the
Certificate of the Comptroller of the Currency that The Massachusetts Bank,
National Association, into which The First National Bank of Boston was merged
effective January 4, 1971, is authorized to commence the business of banking as
a national banking association, as well as a certificate as to such merger is
filed as Exhibit No. 2 to statement of eligibility and qualification No. 22-9514
and is incorporated herein by reference thereto.
3. A copy of the authorization of the trustee to exercise corporate trust
powers, if such authorization is not contained in the documents specified in
paragraph (1) or (2) above.
A copy of a certificate of the Office of the Currency dated February 6, 1978
is filed as Exhibit No. 3 to statement of eligibility and qualification No.
22-9514 and is incorporated herein by reference thereto.
4. A copy of the existing by-laws of the trustee, or instruments
corresponding thereto.
A certified copy of the existing By-Laws of the trustee dated December 23,
1993 is filed as Exhibit No. 4 to statement of eligibility and qualification
No. 22-25754 and is incorporated herein by reference thereto.
5. The consent of the trustee required by Section 321(b) of the Act.
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The consent of the trustee required by Section 321(b) of the Act is annexed
hereto and made a part hereof.
6. A copy of the latest report of condition of the trustee published pursuant
to law or the requirements of its supervising or examining authority.
A copy of the latest report of condition of the trustees published pursuant
to law or the requirements of its supervising or examining authority is annexed
hereto as Exhibit 7 and made a part hereof.
NOTES
In answering any item in this Statement of Eligibility and Qualification
which relates to matters peculiarly within the knowledge of the obligor or any
underwriter for the obligor, the trustee has relied upon information furnished
to it by the obligor and the underwriters, and trustee disclaims responsibility
for the accuracy or completeness of such information.
The answer furnished to Item 2 of this statement will be amended, if
necessary, to reflect any facts which differ from those stated and which would
have been required to be stated if known at the date hereof.
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SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, The First National Bank of Boston, a national banking association
organized and existing under the laws of The United States of America, has duly
caused this statement of eligibility and qualification to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the Town of Canton
and Commonwealth of Massachusetts, on the 31st day of July, 1995.
THE FIRST NATIONAL BANK OF BOSTON, Trustee
By: /s/ DONNA L. GERMANO
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Donna L. Germano
Senior Account Manager
EXHIBIT 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act
of 1939 in connection with the proposed issue by Xerox Credit Corporation Debt
Securities, we hereby consent that reports of examinations by Federal, State,
Territorial, or District authorities may be furnished by such authorities to
the Securities and Exchange Commission upon request thereof.
THE FIRST NATIONAL BANK OF BOSTON, Trustee
By: /s/ DONNA L. GERMANO
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Donna L. Germano
Senior Account Manager
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EXHIBIT 7
CONSOLIDATED REPORT OF CONDITION, INCLUDING DOMESTIC
AND FOREIGN SUBSIDIARIES,
OF
THE FIRST NATIONAL BANK OF BOSTON
In the Commonwealth of Massachusetts, at the close of business on December
31, 1994. Published in response to call made by Comptroller of the Currency,
under Title 12, United States Code, Section 161. Charter number 200. Comptroller
of the Currency Northeastern District.
ASSETS
Dollar
Amounts in
Thousands
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Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin .............. $ 1,862,093
Interest-bearing balances ................................... 1,551,280
Securities ........................................................ 3,935,691
Federal funds sold and securities purchased under agreements
to resell in domestic offices of the bank and of its Edge
and Agreement subsidiaries, and in IBF's:
Federal funds sold ............................................ 758,937
Securities purchased under agreements to resell ............... 0
Loans and lease financing receivables:
Loans and leases, net of unearned income ........ $25,796,462
LESS: Allowance for loan and lease losses ....... 534,630
LESS: Allocated transfer risk reserve ........... 0
Loans and leases, net of unearned income, allowance
and reserve ................................................. 25,261,832
Assets held in trading accounts ................................... 840,348
Premises and fixed assets (including capitalized leases) .......... 398,475
Other real estate owned ........................................... 48,504
Investments in unconsolidated subsidiaries and
associated companies ............................................ 103,670
Customers' liability to this bank on acceptances outstanding ...... 304,031
Intangible assets ................................................. 651,394
Other assets ...................................................... 1,170,251
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Total Assets .................................................. $36,886,506
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LIABILITIES
Deposits:
In domestic offices ............................................. $14,924,310
Noninterest-bearing ............................... $ 4,035,673
Interest-bearing .................................. 10,888,637
In foreign offices, Edge and Agreement subsidiaries,
and IBF's ....................................................... 9,998,764
Noninterest-bearing ............................. 570,582
Interest-bearing ................................ 9,428,182
Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBF's:
Federal funds purchased ....................................... 2,464,904
Securities sold under agreements to repurchase ................ 277,077
Demand notes issued to the U.S. Treasury .......................... 364,045
Trading Liabilities ............................................... 227,865
Other borrowed money .............................................. 3,875,462
Mortgage indebtedness and obligations under capitalized leases .... 14,007
Bank's liability on acceptances executed and outstanding .......... 305,512
Subordinated notes and debentures ................................. 979,167
Other liabilities ................................................. 1,022,105
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Total Liabilities ............................................. $34,453,218
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Limited-life preferred stock and equity capital ................... 0
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EQUITY CAPITAL
Perpetual preferred stock and related surplus .................... $ 0
Common stock ..................................................... 82,264
Surplus .......................................................... 987,524
Undivided profits and capital reserves ........................... 1,408,062
LESS: Net unrealized loss on marketable equity securities ........ (39,027)
Cumulative foreign currency translation adjustments .............. (5,535)
Total equity capital ............................................. 2,433,288
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Total Liabilities, Limited-life preferred stock, and equity .. $36,866,506
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I, Robert T. Jefferson, Comptroller of the above-named bank, do hereby
declare that this Report of Condition is true and correct to the best of my
knowledge and belief.
Robert T. Jefferson
February 13, 1995
We, the undersigned directors, attest to the correctness of this statement
of resources and liabilities. We declare that it has been examined by us, and
to the best of our knowledge and belief has been prepared in conformance with
the instructions and is true and correct.
Charles K. Gifford
Ira Stepanian
J. Donald Monan
Directors
February 13, 1995
