EX-99.(4)(H)(5) 3 dex994h5.txt 1ST SUPPLEMENTAL INDENTURE TO US $ INDENTURE EXHIBIT (4)(h)(5) XEROX CORPORATION, as ISSUER, and WELLS 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 Wells 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 WELLS 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, JP Morgan Chase 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 2 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. 3 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: Gregory B. Tayler 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: Allan E. Dugan Titles: Chairman & President of AMTX, Inc. and Chairman of XDI, Inc. BRADLEY COMPANY By: _________________________ Name: Roy B. Larson Title: Vice President 4 CARMEL VALLEY, INC. INCONCERT, INC. LIVEWORKS, INC. UPPERCASE, INC. TERABANK SYSTEMS, INC. By: ______________________________________ Name: Thomas C. Little 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: Robert Hope Title: Treasurer JEREMIAD CO. SECURITIES INFORMATION CENTER, INC. XTENDED MEMORY SYSTEMS By: ______________________________________ Name: Martin S. Wagner Title: President 5 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: David R. McLellan 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: James J. Costello 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. Terrance Daly Title: President & Treasurer 6 TALEGEN HOLDINGS, INC. TALEGEN PROPERTIES, INC. By: _________________________ Name: George Rachmiel Titles: Chairman, President & Treasurer of Talegen Holdings, Inc. and Chairman & President of Talegen Properties, Inc. VIA XEROX RELOCATION COMPANY, INC. By: _________________________ Name: David Owens Title: President XE HOLDINGS, INC. By: _________________________ Name: John Duerden Title: Chairman, President & Treasurer XEROX COLOR PRINTING, INC. By: _________________________ Name: John Vester Title: Vice President XEROX CREDIT CORPORATION By: _________________________ Name: John Rivera Title: Vice President & Treasurer 7 XEROX INTERNATIONAL JOINT MARKETING, INC. By: __________________________ Name: James Firestone Title: President XEROX LATINAMERICAN HOLDINGS, INC. By: _________________________ Name: Enrique Cervetti Title: President & Treasurer XEROX REAL ESTATE SERVICES, INC. By: _________________________ Name: David Pierson Title: President IGHI, INC. By: _________________________ Name: Mark Sheivachman Title: Treasurer WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION By: _________________________ Name: Title: 8