XEROX CORPORATION, As Issuer, THE GUARANTORS NAMED HEREIN, and WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, As Trustee
EXHIBIT (4)(h)(8)
XEROX CORPORATION,
As Issuer,
THE GUARANTORS NAMED HEREIN,
and
▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
As Trustee
Dated as of July 30, 2002
To
The Indenture, Dated as of January 17, 2002,
Between Xerox Corporation, as Issuer, and
▇▇▇▇▇ 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 Euro)
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 ▇▇▇▇▇ 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 EUR 225 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:
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(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.
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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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
| |||||
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Titles: Vice President & Treasurer | ||||||
| THE GUARANTORS: |
VRN INC. | |||||
| By: |
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
| |||||
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Titles: Vice President & Treasurer | ||||||
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| XEROX FINANCE, INC. | ||
| By: |
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: President | ||
| XEROX FINANCIAL SERVICES, INC. | ||
| By: |
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Titles: Chairman & President | ||
| XEROX CAPITAL MANAGEMENT LLC By: Xerox Corporation, as sole member | ||
| By: |
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Titles: Vice President & Treasurer | ||
| XEROX INVESTMENT MANAGEMENT LLC By: Xerox Capital Management LLC, as sole member By: Xerox Corporation, as sole
member | ||
| By: |
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Titles: Vice President & Treasurer | ||
| XEROX EXPORT, LLC By: Xerox Corporation, as sole member | ||
| By: |
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Titles: Vice President & Treasurer | ||
| AMTX, INC. | ||
| By: |
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Titles: Chairman & President | ||
| XDI, INC. | ||
| By: |
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Title: Chairman | ||
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| ▇▇▇▇▇▇▇ COMPANY | ||
| By: |
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Treasurer | ||
| CARMEL VALLEY, INC. | ||
| By: |
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Titles: Chairman, President & Treasurer | ||
| INCONCERT, INC. | ||
| By: |
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Titles: President & Treasurer | ||
| LIVEWORKS, INC. | ||
| By: |
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Titles: President & Treasurer | ||
| UPPERCASE, INC. | ||
| By: |
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Titles: President & Treasurer | ||
| TERABANK SYSTEMS, INC. | ||
| By: |
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Titles: President | ||
| PIXELCRAFT, INC. | ||
| By: |
/s/ HERVE GALLAIRE | |
| Name: Herve Gallaire Titles: Chairman, President & Treasurer | ||
| INTELLIGENT ELECTRONICS, INC. | ||
| By: |
/s/ ▇▇▇▇▇ ▇▇▇▇▇ | |
| Name: ▇▇▇▇▇ ▇▇▇▇▇ Title: Chairman & President | ||
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| INTELLINET, LTD. | ||
| By: |
/s/ ▇▇▇▇▇ ▇▇▇▇▇ | |
| Name: ▇▇▇▇▇ ▇▇▇▇▇ Title: Chairman & President | ||
| RNTS, INC. | ||
| By: |
/s/ ▇▇▇▇▇ ▇▇▇▇▇ | |
| Name: ▇▇▇▇▇ ▇▇▇▇▇ Title: Chairman & President | ||
| XEROX CONNECT, INC. | ||
| By: |
/s/ ▇▇▇▇▇ ▇▇▇▇▇ | |
| Name: ▇▇▇▇▇ ▇▇▇▇▇ Title: Chairman & President | ||
| JEREMIAD CO. | ||
| By: |
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ Title: President | ||
| SECURITIES INFORMATION CENTER, INC. | ||
| By: |
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: President | ||
| XTENDED MEMORY SYSTEMS | ||
| By: |
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: President | ||
| XEROX INTERNATIONAL REALTY CORPORATION | ||
| By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Title: President | ||
| XEROX REALTY CORP. (CALIFORNIA) | ||
| By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Title: President | ||
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| LANSDOWNE RESIDENTIAL LLC By: Xerox Realty Corporation, as sole member | ||
| By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Titles: Chairman & President | ||
| XRC REALTY CORP. WEST | ||
| By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Title: President | ||
| XEROX REALTY CORPORATION | ||
| By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Titles: Chairman & President | ||
| LOW-COMPLEXITY MANUFACTURING GROUP, INC. | ||
| By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Title: Vice President | ||
| PALO ALTO RESEARCH CENTER INCORPORATED | ||
| By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Title: Vice President | ||
| PAGECAM, INC. | ||
| By: |
/s/ HERVE GALLAIRE | |
| Name: Herve Gallaire Titles: Vice President & Treasurer | ||
| XEROX COLORGRAFX SYSTEMS, INC. | ||
| By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Titles: Chairman, President & Treasurer | ||
| XEROX IMAGING SYSTEMS, INC. | ||
| By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Titles: Chairman, President & Treasurer | ||
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| PACIFIC SERVICES AND DEVELOPMENT CORPORATION | ||
| By: |
/s/ J. ▇▇▇▇▇▇▇▇ ▇▇▇▇ | |
| Name: J. ▇▇▇▇▇▇▇▇ ▇▇▇▇ Titles: President & Treasurer | ||
| TALEGEN HOLDINGS, INC. | ||
| By: |
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Titles: Chairman, President & Treasurer | ||
| TALEGEN PROPERTIES, INC. | ||
| By: |
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Titles: Chairman, President & Treasurer | ||
| VIA XEROX RELOCATION COMPANY, INC. | ||
| By: |
/s/ ▇. ▇. ▇▇▇▇▇ | |
| Name: ▇. ▇. ▇▇▇▇▇ Titles: President | ||
| XE HOLDINGS, INC. | ||
| By: |
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇ ▇▇▇▇▇▇▇ Titles: Chairman, President & Treasurer | ||
| XEROX COLOR PRINTING, INC. | ||
| By: |
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Titles: Vice President | ||
| XEROX CREDIT CORPORATION | ||
| By: |
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Titles: Vice President & Treasurer | ||
| XEROX INTERNATIONAL JOINT MARKETING, INC. | ||
| By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Titles: President | ||
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| XEROX LATINAMERICAN HOLDINGS, INC. | ||
| By: |
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Titles: President & Treasurer | ||
| XEROX REAL ESTATE SERVICES, INC. | ||
| By: |
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Title: President | ||
| IGHI, INC. | ||
| By: |
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Title: Treasurer | ||
| THE TRUSTEE: |
▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION | |||||||
| By: |
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | |||||||
| Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Title: Assistant Vice President | ||||||||
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