EXHIBIT (4)(h)(5)
XEROX CORPORATION,
as ISSUER,
and
▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as TRUSTEE
---------------------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of June 21, 2002
----------------------------
To
The Indenture, dated as of January 17, 2002,
among Xerox Corporation, as Issuer, and
▇▇▇▇▇ Fargo Bank Minnesota, National Association, as Trustee,
Relating to the Company's 9 3/4% Senior Notes due 2009
(Denominated in U.S. Dollars)
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE (the "Supplemental Indenture"), dated
as of June ___, 2002, among XEROX CORPORATION, a corporation duly organized and
existing under the laws of the State of New York (the "Company"), the Guarantors
listed on the signature pages hereto (the "Guarantors") and ▇▇▇▇▇ FARGO BANK
MINNESOTA, NATIONAL ASSOCIATION, a national banking association, as trustee (the
"Trustee).
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an Indenture, dated as of January 17, 2002 (the "Indenture"), providing
for the issuance of an aggregate principal amount of $600,000,000 of its 9 3/4%
Senior Notes due 2009 (the "Notes");
WHEREAS, pursuant to Section 1013(c) of the Indenture, the Company
shall have the right to cause certain of its subsidiaries to execute a guarantee
in respect of the Company's obligations under the Notes; and
WHEREAS, pursuant to Section 901(6) of the Indenture, the Company and
the Trustee are authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Guarantors, the Company and the Trustee mutually covenant and agree as follows
1. Definitions. Capitalized terms used but not otherwise defined herein
shall have the meanings assigned to such terms in the Indenture.
2. Agreement to Guarantee. The Guarantors hereby jointly and severally
agree to fully and unconditionally guarantee all of the Company's obligations
under the Notes and the Indenture (each, a "Guarantee"), including the prompt
payment in full when due of the principal of, premium on, if any, interest and,
without duplication, Additional Interest, if any, on the Notes and all other
amounts payable by the Company under the Indenture and the Notes, subject to any
applicable grace period, whether at maturity, by acceleration or otherwise, and
interest on any overdue principal and any overdue interest on the Notes and all
other obligations of the Company to the Holders or the Trustee hereunder or
under the Notes, and to be bound by all applicable provisions of the Indenture
and the Notes.
3. Release of Guarantees. Any Guarantee shall be automatically and
unconditionally released upon the release (other than by reason of payment) of
such Guarantor's guarante of the Amended and Restated Credit Agreement, dated as
of June [ ], 2002, among the Company, certain overseas borrowers party thereto,
the lenders party thereto, Bank One, NA, as Administrative Agent, Collateral
Agent and LC Issuing Bank, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank, as Documentation Agent and
Citibank, N.A., as Syndication Agent. Any Guarantee shall also be automatically
and unconditionally released upon: (i) the designation of such Guarantor as an
Unrestricted Subsidiary in compliance with the
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provisions of the Indenture or (ii) any transaction, including without
limitation, any sale, exchange or transfer, to any Person not an Affiliate of
the Company, of the Company's Capital Stock in, or all or substantially all the
property of, such Guarantor, which transaction is in compliance with the terms
of the Indenture, and which results in the Guarantor ceasing to be a Subsidiary
of the Company and, in the case of either clause (i) or clause (ii), such
Guarantor is released from all guarantees, if any, by it of other Capital
Markets Debt of the Company.
4. Ratification of Indenture; Supplemental Part of Indenture. Except as
expressly amended hereby, the Indenture is in all respects ratified and
confirmed and all the terms, conditions and provisions thereof shall remain in
full force and effect. This Supplemental Indenture shall form a part of the
Indenture for all purposes, and every holder of the Notes heretofore or
hereafter authenticated and delivered shall be bound hereby.
5. Governing Law. THIS 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.
6. Multiple Originals. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Supplemental Indenture.
7. Effect of Headings. The Section headings herein are for convenience only
and shall not affect the construction hereof.
8. Successors. All agreements of the Company and the Guarantors in this
Supplemental Indenture shall bind their successors. All agreements of the
Trustee in this Supplemental Indenture shall bind its successors.
9. Separability Clause. In case any provision of this 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.
10. Conflict with Trust Indenture Act. If any provision hereof limits,
qualifies or conflicts with any provision of the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), such provision or requirement of the Trust
Indenture Act shall control.
If any provision of this Supplemental Indenture modifies or excludes any
provision of the Trust Indenture Act that may be so modified or excluded, the
latter provision shall be deemed to apply to this Supplemental Indenture as so
modified or excluded, as the case may be.
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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
VRN INC.
XEROX FINANCE, INC.
XEROX FINANCIAL SERVICES, INC.
XEROX CAPITAL MANAGEMENT LLC
By: Xerox Corporation, as sole member
XEROX INVESTMENT MANAGEMENT LLC
By: Xerox Capital Management LLC, as
sole member
By: Xerox Corporation, as sole member
XEROX EXPORT, LLC
By: Xerox Corporation, as sole member
By: _________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Titles: Vice President & Treasurer of Xerox
Corporation, President & Treasurer of VRN Inc.,
President of Xerox Finance, Inc., and Chairman &
President of Xerox Financial Services, Inc.
AMTX, INC.
XDI, INC.
By: _________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Titles: Chairman & President of AMTX, Inc. and
Chairman of XDI, Inc.
▇▇▇▇▇▇▇ COMPANY
By: _________________________
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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CARMEL VALLEY, INC.
INCONCERT, INC.
LIVEWORKS, INC.
UPPERCASE, INC.
TERABANK SYSTEMS, INC.
By: ______________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Titles: Chairman, President & Treasurer
of Carmel Valley, Inc., President &
Treasurer of InConcert, Inc., LiveWorks,
Inc. and Uppercase, Inc., and President
of Terabank Systems, Inc.
PIXELCRAFT, INC.
By: ______________________________________
Name: Herve Gallaire
Title: Chairman, President & Treasurer
INTELLIGENT ELECTRONICS, INC.
INTELLINET, LTD.
RNTS, INC.
XEROX CONNECT, INC.
By: ______________________________________
Name: ▇▇▇▇▇▇ Hope
Title: Treasurer
JEREMIAD CO.
SECURITIES INFORMATION CENTER, INC.
XTENDED MEMORY SYSTEMS
By: ______________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
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XEROX INTERNATIONAL REALTY
CORPORATION
XEROX REALTY CORP. (CALIFORNIA)
LANSDOWNE RESIDENTIAL LLC
By: Xerox Realty Corporation,
as sole member
XRC REALTY CORP. WEST
XEROX REALTY CORPORATION
By: __________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Titles: President of Xerox International
Realty Corporation, Xerox Realty Corp.
(California) and XRC Realty Corp. West,
and Chairman & President of Xerox Realty
Corporation
LOW-COMPLEXITY MANUFACTURING
GROUP, INC.
PALO ALTO RESEARCH CENTER
INCORPORATED
PAGECAM, INC.
XEROX COLORGRAFX SYSTEMS, INC.
XEROX IMAGING SYSTEMS, INC.
By: __________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Titles: Vice President of Low-Complexity
Manufacturing Group, Inc. and Palo Alto
Research Center Incorporated, Vice
President & Treasurer of PageCam, Inc.,
and Chairman, President & Treasurer of
Xerox ColorgrafX Systems, Inc. and Xerox
Imaging Systems, Inc.
PACIFIC SERVICES AND DEVELOPMENT
CORPORATION
By: __________________________________________
Name: J. ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: President & Treasurer
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TALEGEN HOLDINGS, INC.
TALEGEN PROPERTIES, INC.
By: _________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Titles: Chairman, President &
Treasurer of Talegen Holdings, Inc.
and Chairman & President of Talegen
Properties, Inc.
VIA XEROX RELOCATION COMPANY, INC.
By: _________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: President
XE HOLDINGS, INC.
By: _________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chairman, President &
Treasurer
XEROX COLOR PRINTING, INC.
By: _________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
XEROX CREDIT CORPORATION
By: _________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
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XEROX INTERNATIONAL JOINT
MARKETING, INC.
By: __________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
XEROX LATINAMERICAN HOLDINGS, INC.
By: _________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President & Treasurer
XEROX REAL ESTATE SERVICES, INC.
By: _________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
IGHI, INC.
By: _________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Treasurer
▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
By: _________________________
Name:
Title:
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