XEROX CORPORATION, As Issuer, THE GUARANTORS NAMED HEREIN, and WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, As Trustee SECOND SUPPLEMENTAL INDENTURE Dated as of July 30, 2002 To The Indenture, Dated as of January 17, 2002, Between Xerox Corporation, asIssuer, and Wells 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 andthe Trustee, relating to Xerox Corporations 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 30^th 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 Wells 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:

 

 

 

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

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(b)  capitalized terms used but not defined herein shall have the meanings assigned to them in the Indenture.

 

 

 

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.

 

 

 

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

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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/    GREGORY B. TAYLER
								Name: Gregory B. Tayler Titles: Vice President & Treasurer
THE GUARANTORS:						VRN INC.
						By:		/s/    GREGORY B. TAYLER
								Name: Gregory B. Tayler Titles: President & Treasurer
						XEROX FINANCE, INC.
						By:		/s/    GREGORY B. TAYLER
								Name: Gregory B. Tayler Title: President

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XEROX FINANCIAL SERVICES, INC.
By:		/s/    GREGORY B. TAYLER
		Name: Gregory B. Tayler Titles: Chairman & President

 

XEROX CAPITAL MANAGEMENT LLC     By: Xerox Corporation, as sole member
By:		/s/    GREGORY B. TAYLER
		Name: Gregory B. Tayler Titles: Vice President & Treasurer

 

XEROX INVESTMENT MANAGEMENT LLC     By: Xerox Capital Management LLC, as sole       member     By: Xerox Corporation, as sole member
By:		/s/    GREGORY B. TAYLER
		Name: Gregory B. Tayler Titles: Vice President & Treasurer

 

XEROX EXPORT, LLC     By: Xerox Corporation, as sole member
By:		/s/    GREGORY B. TAYLER
		Name: Gregory B. Tayler Titles: Vice President & Treasurer

 

AMTX, INC.
By		/s/    URSULA M. BURNS
		Name: Ursula M. Burns Titles: Chairman & President

 

XDI, INC.
By:		/s/    URSULA M. BURNS
		Name: Ursula M. Burns Title: Chairman

 

BRADLEY COMPANY
By:		/s/    STEVEN BARRETT
		Name: Steven Barrett Title: Treasurer

 

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CARMEL VALLEY, INC.
By:		/s/    THOMAS C. LITTLE
		Name: Thomas C. Little
		Titles: Chairman, President & Treasurer
INCONCERT, INC.
By:		/s/    THOMAS C. LITTLE
		Name: Thomas C. Little
		Titles: President & Treasurer
LIVEWORKS, INC.
By:		/s/    THOMAS C. LITTLE
		Name: Thomas C. Little
		Titles: President & Treasurer
UPPERCASE, INC.
By:		/s/    THOMAS C. LITTLE
		Name: Thomas C. Little
		Titles: President & Treasurer
TERABANK SYSTEMS, INC.
By:		/s/    THOMAS C. LITTLE
		Name: Thomas C. Little
		Title: President
PIXELCRAFT, INC.
By:		/s/    HERVE GALLAIRE
		Name: Herve Gallaire
		Titles: Chairman, President & Treasurer
INTELLIGENT ELECTRONICS, INC.
By:		/s/    JAMES JOYCE
		Name: James Joyce
		Title: Chairman & President
INTELLINET, LTD.
By:		/s/    JAMES JOYCE
		Name: James Joyce
		Title: Chairman & President

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RNTS, INC.
By:		/s/    JAMES JOYCE
		Name: James Joyce
		Title: Chairman & President

 

XEROX CONNECT, INC.
By:		/s/    JAMES JOYCE
		Name: James Joyce
		Title: Chairman & President

 

JEREMIAD CO.
By:		/s/    TIMOTHY J. MACCARRICK
		Name: Timothy J. MacCarrick
		Title: President

 

SECURITIES INFORMATION CENTER, INC.
By:		/s/    MARTIN S. WAGNER
		Name: Martin S. Wagner
		Title: President

 

XTENDED MEMORY SYSTEMS
By:		/s/    MARTIN S. WAGNER
		Name: Martin S. Wagner
		Title: President

 

XEROX INTERNATIONAL REALTY CORPORATION
By:		/s/    DAVID R. MCLELLAN
		Name: David R. McLellan
		Title: President

 

XEROX REALTY CORP. (CALIFORNIA)
By:		/s/    DAVID R. MCLELLAN
		Name: David R. McLellan
		Title: President

 

LANSDOWNE RESIDENTIAL LLC
By:    Xerox Realty Corporation, as sole member
By:		/s/    DAVID R. MCLELLAN
		Name: David R. McLellan
		Titles: Chairman & President

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						XRC REALTY CORP. WEST
						By:		/s/    DAVID R. MCLELLAN
								Name: David R. McLellan Title: President
						XEROX REALTY CORPORATION
						By:		/s/    DAVID R. MCLELLAN
								Name: David R. McLellan Titles: Chairman & President
						LOW-COMPLEXITY MANUFACTURING GROUP, INC.
						By:		/s/    JAMES J. COSTELLO
								Name: James J. Costello Title: Vice President
						PALO ALTO RESEARCH CENTER INCORPORATED
						By:		/s/    JAMES J. COSTELLO
								Name: James J. Costello Title: Vice President
						PAGECAM, INC.
						By:		/s/    HERVE GALLAIRE
								Name: Herve Gallaire Titles: Vice President & Treasurer
						XEROX COLORGRAFX SYSTEMS, INC.
						By:		/s/    JAMES J. COSTELLO
								Name: James J. Costello Titles: Chairman, President & Treasurer
						XEROX IMAGING SYSTEMS, INC.
						By:		/s/    JAMES J. COSTELLO
								Name: James J. Costello Titles: Chairman, President & Treasurer

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						PACIFIC SERVICES AND DEVELOPMENT CORPORATION
						By:		/s/    J. TERRANCE DALY
								Name: J. Terrance Daly Titles: President & Treasurer
						TALEGEN HOLDINGS, INC.
						By:		/s/    GEORGE J. RACHMIEL
								Name: George J. Rachmiel Titles: Chairman, President & Treasurer
						TALEGEN PROPERTIES, INC.
						By:		/s/    GEORGE J. RACHMIEL
								Name: George J. Rachmiel Titles: Chairman, President & Treasurer
						VIA XEROX RELOCATION COMPANY, INC.
						By:		/s/    D. E. OWENS
								Name: David E. Owens Title: President
						XE HOLDINGS, INC.
						By:		/s/    JOHN DUERDEN
								Name: John Duerden Titles: Chairman, President & Treasurer
						XEROX COLOR PRINTING, INC.
						By:		/s/    JOHN W. VESTER
								Name: John W. Vester Title: Vice President
						XEROX CREDIT CORPORATION
						By:		/s/    JOHN F. RIVERA
								Name: John F. Rivera Titles: Vice President & Treasurer
						XEROX INTERNATIONAL JOINT MARKETING, INC.
						By:		/s/    JAMES A. FIRESTONE
								Name: James A. Firestone Title: President

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						XEROX LATINAMERICAN HOLDINGS, INC.
						By:		/s/  ENRIQUE CERVETTI
								Name: Enrique Cervetti Titles: President & Treasurer
						XEROX REAL ESTATE SERVICES, INC.
						By:		/s/    DAVID L. PIERSON
								Name: David L. Pierson Title: President
						IGHI, INC.
						By:		/s/    MARK SHEIVACHMAN
								Name: Mark Sheivachman Title: Treasurer
THE TRUSTEE:						WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
						By:		/s/    JANE Y. SCHWEIGER
								Name: Jane Y. Schweiger Title: Assistant Vice President

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