EXHIBIT (4)(d)(5)
XEROX CORPORATION,
As Issuer,
THE GUARANTORS NAMED HEREIN,
and
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
As Trustee
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SECOND SUPPLEMENTAL INDENTURE
Dated as of July 30, 2002
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To
The Indenture, Dated as of January 17, 2002,
Between Xerox Corporation, as Issuer, and
Xxxxx Fargo Bank Minnesota, National Association, as Trustee,
as supplemented by the First Supplemental Indenture, dated as of June 21,
2002, between the Issuer, the Guarantors named therein and the Trustee,
relating to Xerox Corporation's
9 3/4% Senior Notes due 2009
(Denominated in U.S. Dollars)
SECOND SUPPLEMENTAL INDENTURE
THIS SECOND SUPPLEMENTAL INDENTURE (the "Second Supplemental Indenture") is
made as of the 30th day of July, 2002, between Xerox Corporation, a New York
corporation (the "Issuer"), the persons named as Guarantors on the signature
pages hereto (collectively, the "Guarantors"), and Xxxxx Fargo Bank Minnesota,
National Association, as trustee (the "Trustee").
WHEREAS, the Issuer and the Trustee heretofore executed and delivered an
Indenture, dated as of January 17, 2002, that was supplemented by the First
Supplemental Indenture, dated as of June 21, 2002, among the Issuer, the
Guarantors and the Trustee (as supplemented, the "Indenture"); and
WHEREAS, pursuant to the Indenture, the Issuer issued and the Trustee
authenticated and delivered $600 million aggregate principal amount of the
Issuer's 9 3/4% Senior Notes due 2009 (the "Senior Notes"); and
WHEREAS, the Indenture contains the following two defects (together, the
"Defects"): (i) the definition of "Domestic Insignificant Subsidiary" in Section
101 of the Indenture contains an incorrect cross-reference to Section 1013(b) of
the Indenture and the correct cross-reference is to Section 1013(a)(2) of the
Indenture, and (ii) the proviso in the definition of "Specified Subsidiary" in
Section 101 contains a defect in that it uses the term "corporation" instead of
"Subsidiary"; and
WHEREAS, the Issuer wishes to reform the Indenture to cure the Defects,
without the consent of the Holders of the Senior Notes, pursuant to Section
901(5) of the Indenture; and
WHEREAS, the Issuer is delivering contemporaneously herewith to the Trustee
(i) a copy of the resolutions of the Board of Directors of the Issuer and the
Board of Directors/Managers of each of the Guarantors authorizing the execution,
delivery and performance of this Second Supplemental Indenture, and (ii) an
Opinion of Counsel in compliance with and to the effect set forth in Sections
103 and 903 of the Indenture; and
WHEREAS, the Second Supplemental Indenture complies with and is authorized
by the applicable provisions of the Indenture, including the conditions
precedent set forth in the Indenture to be performed or complied with by the
Issuer relating to the execution and delivery of this Second Supplemental
Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the Issuer,
the Guarantors and the Trustee mutually covenant and agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. General. For all purposes of the Indenture and this
Second Supplemental Indenture, except as otherwise expressly provided or
unless the context otherwise requires:
(a) the words "herein", "hereof" and "hereunder" and other words of similar
import refer to the Indenture and this Second Supplemental Indenture as a whole
and not to any particular Article, Section or subdivision; and
(b) capitalized terms used but not defined herein shall have the meanings
assigned to them in the Indenture.
ARTICLE II
REFORMATIONS
SECTION 2.01. The defective cross-reference to "Section 1013 (b)" in the
definition of "Domestic Insignificant Subsidiary" in Section 101 of the
Indenture is hereby cured and reformed to "Section 1013(a)(2)" so that such
definition reads in its entirety as follows:
"Domestic Insignificant Subsidiary" means any Domestic Wholly Owned
Restricted Subsidiary that is not a Guarantor other than a Person that is
described in Section 1013(a)(2) hereof."
SECTION 2.02. The defective term "corporation" in the proviso of the
definition of "Specified Subsidiary" in Section 101 of the Indenture is hereby
cured and reformed to "Subsidiary" so that such definition reads in its entirety
as follows:
"Specified Subsidiary" means any Subsidiary of the Company from time
to time having a Consolidated Net Worth Amount of at least $100.0 million;
provided, however, that each of Xerox Financial Services, Inc., Xerox
Credit Corporation and any other Subsidiary principally engaged in any
business or businesses other than development, manufacture and/or marketing
of (x) business equipment (including, without limitation, reprographic,
computer (including software) and facsimile equipment), (y) merchandise or
(z) services (other than financial services) shall be excluded as a
"Specified Subsidiary" of the Company.
ARTICLE III
MISCELLANEOUS
SECTION 3.01. Binding Effect. Upon the execution and delivery of this
Second Supplemental Indenture by the Issuer, the Guarantors and the Trustee, the
Indenture shall be reformed and supplemented in accordance herewith effective as
of January 17, 2002 which is the date of the original Indentures, and this
Second Supplemental Indenture shall form a part of the Indenture for all
purposes, and every Holder of Notes heretofore or hereafter authenticated and
delivered under the Indenture shall be bound thereby.
SECTION 3.02. Indenture Remains in Full Force and Effect. Except as
reformed and supplemented hereby, all provisions in the Indenture shall
remain in full force and effect.
SECTION 3.03. Indenture and Supplemental Indenture Construed Together. This
Second Supplemental Indenture is an indenture supplemental to and in
implementation of the Indenture, and the Indenture and this Second Supplemental
Indenture shall henceforth be read and construed together.
SECTION 3.04. Confirmation and Preservation of Indenture. The
Indenture as reformed and supplemented by this Supplemental Indenture is in
all respects confirmed and preserved.
SECTION 3.05. Conflict with Trust Indenture Act. If any provision of
this Second Supplemental Indenture limits, qualifies or conflicts with any
provision of the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), that is required under the Trust Indenture Act to be part of and govern
any provision of this Second Supplemental Indenture, the provision of the Trust
Indenture Act shall control. If any provision of this Second Supplemental
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the provision of the Trust Indenture Act shall be
deemed to apply to the Indenture as so modified or to be excluded by this Second
Supplemental Indenture, as the case may be.
SECTION 3.06. Severability. In case any provision in this Second
Supplemental Indenture 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 3.07. Headings. The Article and Section headings of this Second
Supplemental Indenture have been inserted for convenience of reference only, are
not to be considered a part of this Second Supplemental Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
SECTION 3.08. Successors. All agreements of the Issuer and Guarantors in
this Second Supplemental Indenture shall bind their respective successors. All
agreements of the Trustee in this Second Supplemental Indenture shall bind its
successors.
SECTION 3.09. Governing Law. THIS SECOND SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
SECTION 3.10. Counterpart Originals. The parties may sign any number
of copies of this Second Supplemental Indenture. Each signed copy shall be
an original, but all of them together represent the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and attested, as of the date first above written.
XEROX CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Titles: Vice President & Treasurer
THE GUARANTORS:
VRN INC.
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Titles: President & Treasurer
XEROX FINANCE, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: President
XEROX FINANCIAL SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Titles: Chairman & President
XEROX CAPITAL MANAGEMENT LLC
By: Xerox Corporation, as sole member
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Titles: Vice President & Treasurer
XEROX INVESTMENT MANAGEMENT LLC
By: Xerox Capital Management LLC,
as sole member
By: Xerox Corporation, as sole member
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Titles: Vice President & Treasurer
XEROX EXPORT, LLC
By: Xerox Corporation, as sole member
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Titles: Vice President & Treasurer
AMTX, INC.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Titles: Chairman & President
XDI, INC.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Chairman
XXXXXXX COMPANY
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Treasurer
CARMEL VALLEY, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Titles: Chairman, President & Treasurer
INCONCERT, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Titles: President & Treasurer
LIVEWORKS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Titles: President & Treasurer
UPPERCASE, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Titles: President & Treasurer
TERABANK SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: President
PIXELCRAFT, INC.
By: /s/ Herve Gallaire
Name: Herve Gallaire
Titles: Chairman, President & Treasurer
INTELLIGENT ELECTRONICS, INC.
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Chairman & President
INTELLINET, LTD.
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Chairman & President
RNTS, INC.
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Chairman & President
XEROX CONNECT, INC.
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Chairman & President
JEREMIAD CO.
By: /s/ Xxxxxxx X. XxxXxxxxxx
Name: Xxxxxxx X. XxxXxxxxxx
Title: President
SECURITIES INFORMATION CENTER, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: President
XTENDED MEMORY SYSTEMS
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: President
XEROX INTERNATIONAL REALTY
CORPORATION
By: /s/ Xxxxx X. XxXxxxxx
Name: Xxxxx X. XxXxxxxx
Title: President
XEROX REALTY CORP. (CALIFORNIA)
By: /s/ Xxxxx X. XxXxxxxx
Name: Xxxxx X. XxXxxxxx
Title: President
LANSDOWNE RESIDENTIAL LLC
By: Xerox Realty Corporation,
as sole member
By: /s/ Xxxxx X. XxXxxxxx
Name: Xxxxx X. XxXxxxxx
Titles: Chairman & President
XRC REALTY CORP. WEST
By: /s/ Xxxxx X. XxXxxxxx
Name: Xxxxx X. XxXxxxxx
Title: President
XEROX REALTY CORPORATION
By: /s/ Xxxxx X. XxXxxxxx
Name: Xxxxx X. XxXxxxxx
Titles: Chairman & President
LOW-COMPLEXITY MANUFACTURING
GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
PALO ALTO RESEARCH CENTER
INCORPORATED
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
PAGECAM, INC.
By: /s/ Herve Gallaire
Name: Herve Gallaire
Titles: Vice President & Treasurer
XEROX COLORGRAFX SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Titles: Chairman, President & Treasurer
XEROX IMAGING SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Titles: Chairman, President & Treasurer
PACIFIC SERVICES AND DEVELOPMENT
CORPORATION
By: /s/ J. Xxxxxxxx Xxxx
Name: J. Xxxxxxxx Xxxx
Titles: President & Treasurer
TALEGEN HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Titles: Chairman, President & Treasurer
TALEGEN PROPERTIES, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Titles: Chairman, President & Treasurer
VIA XEROX RELOCATION COMPANY, INC.
By: /s/ X. X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: President
XE HOLDINGS, INC.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Titles: Chairman, President & Treasurer
XEROX COLOR PRINTING, INC.
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
XEROX CREDIT CORPORATION
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Titles: Vice President & Treasurer
XEROX INTERNATIONAL JOINT
MARKETING, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: President
XEROX LATINAMERICAN HOLDINGS, INC.
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Titles: President & Treasurer
XEROX REAL ESTATE SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: President
IGHI, INC.
By: /s/ Xxxx Xxxxxxxxxxx
Name: Xxxx Xxxxxxxxxxx
Title: Treasurer
THE TRUSTEE:
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: Assistant Vice President
