EXHIBIT 4.4
[EXECUTION COPY]
INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE (the
"Agreement"), dated as of January 16, 2003, by and among THE XXXXXXXX COMPANIES,
INC., a corporation duly organized and existing under the laws of the State of
Delaware, having its principal office at Xxx Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx
00000 (the "Issuer"), BANK ONE TRUST COMPANY, N.A., a national banking
association duly organized and existing under the laws of the United States of
America, having its principal corporate trust office at 0000 Xxxxxxx Xxxxxxx,
Xxxxx 0X, Xxxxxxxx, Xxxx 00000 (the "Resigning Trustee"), and JPMORGAN CHASE
BANK, a New York banking corporation duly organized and existing under the laws
of the State of New York, having a corporate trust office at 0 Xxx Xxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (the "Successor Trustee");
RECITALS
There are presently issued and outstanding $8,194,925,000 in
aggregate principal amount of the Issuer's Registered Securities of various
series (the "Securities") under a Senior Indenture, dated as of November 10,
1997 (the "Original Indenture"), as supplemented by the First Supplemental
Indenture dated as of September 8, 2000, the Second Supplemental Indenture dated
as of December 7, 2000, the Third Supplemental Indenture dated as of December
20, 2000, the Fourth Supplemental Indenture dated as of January 17, 2001, the
Fifth Supplemental Indenture dated as of January 17, 2001, the Sixth
Supplemental Indenture dated as of January 14, 2002, the Seventh Supplemental
Indenture dated as of March 19, 2002 (the "Seventh Supplemental Indenture"), and
the Eighth Supplemental Indenture dated as of June 3, 2002 (collectively, the
"Supplemental Indentures", together with the Original Indenture, the
"Indenture"), between the Issuer and the Resigning Trustee (formerly known as
The First National Bank of Chicago).
The Resigning Trustee wishes to resign as Trustee, registrar
for the Securities (the "Registrar") and paying agent for the Securities (the
"Paying Agent") under the Indenture; the Issuer wishes to appoint the Successor
Trustee to succeed the Resigning Trustee as Trustee, Registrar and Paying Agent
under the Indenture; and the Successor Trustee wishes to accept appointment as
Trustee, Registrar and Paying Agent under the Indenture.
NOW, THEREFORE, in consideration of the mutual covenants and
promises herein, the receipt and sufficiency of which is hereby acknowledged,
the Issuer, the Resigning Trustee and the Successor Trustee agree as follows:
ARTICLE ONE
THE RESIGNING TRUSTEE
Section 101. Pursuant to Section 6.10 of the Indenture, the
Resigning Trustee hereby notifies the Issuer that the Resigning Trustee is
hereby resigning as Trustee under the Indenture.
Section 102. The Resigning Trustee hereby represents and
warrants to the Successor Trustee that:
(a) No covenant or condition contained in the
Indenture has been waived by the Resigning Trustee or, to the
best of the knowledge of the Responsible Officers of the
Resigning Trustee, by Holders of the percentage in aggregate
principal amount of the Securities or of series thereof
required by the Indenture to effect any such waiver and no
notice has been given or received by Resigning Trustee under
Section 5.1 of the Indenture that would result in the
occurrence of an Event of Default.
(b) There is no action, suit or proceeding pending
or, to the best of the knowledge of the Responsible Officers
of the Resigning Trustee assigned to its Corporate Trust
Department, threatened against the Resigning Trustee before
any court or governmental authority arising out of any action
or omission by the Resigning Trustee as Trustee under the
Indenture.
(c) As of the effective date of this Agreement,
Resigning Trustee will hold no property under the Indenture.
(d) Pursuant to Section 2.4 of the Indenture,
Resigning Trustee duly authenticated and delivered
$8,194,925,000 aggregate principal amount of Securities, all
of which are Outstanding as of the effective date hereof.
(e) Each person who so authenticated the Securities
was duly elected, qualified and acting as an officer of
Resigning Trustee and empowered to authenticate the Securities
at the respective times of such authentication and the
signature of such person or persons appearing on such
Securities is each such person's genuine signature.
(f) This Agreement has been duly authorized, executed
and delivered on behalf of Resigning Trustee and constitutes
its legal, valid and binding obligation.
Section 103. The Resigning Trustee hereby assigns, transfers,
delivers and confirms to the Successor Trustee and its successors and assigns
all right, title and interest of the Resigning Trustee in and to the trust under
the Indenture, and all the rights, powers, trusts, privileges, duties and
obligations of the Trustee under the Indenture. The Resigning Trustee shall
execute and deliver such further instruments and shall do such other things as
the Successor Trustee may reasonably require so as to more fully and certainly
vest and confirm in the Successor Trustee all the rights, powers, trusts,
privileges, duties and obligations hereby assigned, transferred, delivered and
confirmed to the Successor Trustee as Trustee, Registrar and Paying Agent.
Section 104. The Resigning Trustee hereby resigns as Paying
Agent for the Securities, as Registrar for the Securities and as the office or
agency maintained by the Issuer pursuant to Section 3.2 of the Indenture.
Section 105. The Resigning Trustee agrees to pay or indemnify
the Successor Trustee and save the Successor Trustee harmless from and against
any and all costs, claims,
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liabilities, losses or damages whatsoever (including the reasonable fees,
expenses and disbursements of the Successor Trustee's counsel and other
advisors), that the Successor Trustee suffers or incurs without gross negligence
or bad faith on its part arising out of actions or omissions of the Resigning
Trustee. The Successor Trustee will furnish to the Resigning Trustee, promptly
after receipt, all papers with respect to any action the outcome of which would
make operative the indemnity provided for in this Section. The Successor Trustee
shall notify the Resigning Trustee promptly in writing (and, in any event,
within no later than 10 days) of any claim for which it may seek indemnity. The
Resigning Trustee shall have the option to defend the claim and the Successor
Trustee shall cooperate fully in the defense. If the Resigning Trustee shall
assume the defense, then the Resigning Trustee shall not pay for separate
counsel of the Successor Trustee. The Resigning Trustee shall not be obligated
to pay for any settlement made without its consent. The Resigning Trustee shall
not settle any claim against the Successor Trustee without such Successor
Trustee's written consent, which shall not be unreasonably withheld.
ARTICLE TWO
THE ISSUER
Section 201. The Issuer hereby certifies that the Board of
Directors of the Issuer has duly adopted resolutions, which are in full force
and effect on the date hereof, authorizing certain officers of the Issuer to:
(a) accept the Resigning Trustee's resignation as Trustee, Registrar and Paying
Agent under the Indenture; (b) appoint the Successor Trustee as Trustee,
Registrar and Paying Agent under the Indenture; and (c) execute and deliver such
agreements and other instruments as may be necessary or desirable to effectuate
the succession of the Successor Trustee as Trustee, Registrar and Paying Agent
under the Indenture. The Issuer is delivering simultaneously herewith a
Certificate of the Secretary or an Assistant Secretary certifying as to such
resolutions.
Section 202. The Issuer hereby appoints the Successor Trustee
as Trustee under the Indenture with all the rights, powers, privileges, trusts,
duties and obligations of the Trustee under the Indenture. The Issuer shall
execute and deliver such further instruments and shall do such other things as
the Successor Trustee may reasonably require so as to more fully and certainly
vest and confirm in the Successor Trustee all the rights, powers, privileges,
duties and obligations hereby assigned, transferred, delivered and confirmed to
the Successor Trustee.
Section 203. The Issuer hereby represents and warrants to the
Successor Trustee that:
(a) No Event of Default and no default exists under
the Indenture.
(b) No covenant or condition contained in the
Indenture has been waived by the Holders of the percentage in
aggregate principal amount of the Securities or of series
thereof required by the Indenture to effect any such waiver.
(c) Except for the Supplemental Indentures, the
Indenture has not been amended or modified and is in full
force and effect.
(d) The Securities are validly issued securities of
the Issuer.
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(e) The Issuer is a corporation duly and validly
organized and existing pursuant to the laws of the State of
Delaware.
(f) This Agreement has been duly authorized, executed
and delivered on behalf of Issuer and constitutes its legal,
valid and binding obligation.
(g) All conditions precedent relating to the
appointment of Successor Trustee as successor Trustee,
Registrar and Paying Agent under the Indenture have been
complied with by the Issuer.
Section 204. The Issuer hereby appoints the Successor Trustee
as Paying Agent for the Securities, as Registrar for the Securities and as the
Issuer's office or agency maintained pursuant to Section 3.2 of the Indenture.
Section 205. Promptly after the effective date of this
Instrument, the Issuer shall cause a notice, the form of which is annexed hereto
marked Exhibit A, to be sent to each Holder of the Securities in accordance with
the provisions of the Indenture.
ARTICLE THREE
THE SUCCESSOR TRUSTEE
Section 301. The Successor Trustee hereby represents and
warrants to the Resigning Trustee and to the Issuer that the Successor Trustee
is qualified and eligible under Article Six of the Indenture to act as Trustee
under the Indenture (assuming the correctness of the representations made in
Sections 102(a) and 203(a) hereof) and that this Agreement has been duly
authorized, executed and delivered on behalf of the Successor Trustee and
constitutes its legal, valid and binding obligation.
Section 302. The Successor Trustee hereby accepts its
appointment as Trustee under the Indenture and shall hereby be vested with all
the rights, powers, trusts, privileges, duties and obligations of the Trustee
under the Indenture. The Successor Trustee hereby accepts its appointment as
Paying Agent for the Securities, as Registrar for the Securities and as the
Issuer's office or agency maintained pursuant to Section 3.2 of the Indenture.
Section 303. References in the Indenture to "the Corporate
Trust Office" or other similar terms shall be deemed to refer to the Corporate
Trust Office of the Successor Trustee at, and all notices to the Trustee
delivered pursuant to Section 11.4 of the Indenture shall be addressed to the
Trustee at, 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention Institutional
Trust Services, or any other office of Successor Trustee at which, at any
particular time, its corporate trust business shall be administered.
Section 304. This Agreement shall not constitute (i) a waiver
by any of the parties hereto of any obligation or liability which Resigning
Trustee may have incurred in connection with its services as Trustee, Registrar
or Paying Agent under the Indenture or (ii) an assumption by Successor Trustee
of any liability of Resigning Trustee arising out of a breach by Resigning
Trustee prior to its resignation of its duties under the Indenture (each a
"Prior Liability"). Notwithstanding anything herein to the contrary, Resigning
Trustee shall remain liable for any Prior Liabilities to the extent provided in,
and subject to, the Indenture. This instrument does not constitute a waiver or
assignment by Resigning Trustee of any
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compensation, reimbursement, expenses or indemnity to which it is or may be
entitled pursuant to the Indenture.
ARTICLE FOUR
MISCELLANEOUS
Section 401. Except as otherwise expressly provided or unless
the context otherwise requires, all terms used herein which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
Section 402. This Instrument and the resignation, appointment
and acceptance effected hereby shall be effective as of the close of business on
January 27, 2003.
Section 403. Notwithstanding the resignation of the Resigning
Trustee effected hereby, the Issuer shall remain obligated under Section 6.6 of
the Indenture to compensate, reimburse and indemnify the Resigning Trustee in
connection with its prior trusteeship under the Indenture.
Section 404. This Instrument shall be governed by and
construed in accordance with the law of the State of New York.
Section 405. This Instrument may be executed in any number of
counterparts each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
Section 406. All notices, whether faxed or mailed, will be
deemed received when sent pursuant to the following instructions:
TO THE RESIGNING TRUSTEE:
Bank One Trust Company, N.A.
0000 Xxxxxxx Xxxxxxx, Xxxxx 0X
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
Phone No. (000) 000-0000
TO THE SUCCESSOR TRUSTEE:
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Institutional Trust Services
Facsimile: (000) 000-0000
Phone No. (000) 000-0000
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TO THE ISSUER:
The Xxxxxxxx Companies, Inc.
Xxx Xxxxxxxx Xxxxxx, 00-0
Xxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Treasurer
Section 407. Resigning Trustee hereby acknowledges payment or
provision for payment in full by the Issuer of compensation for all services
rendered by Resigning Trustee under the Indenture on or prior to the date hereof
and reimbursement in full by the Issuer of the expenses, disbursements and
advances incurred or made by Resigning Trustee in accordance with the provisions
of the Indenture on or prior to the date hereof. Resigning Trustee acknowledges
that it relinquishes any claim it may have upon all property or funds held or
collected by it to secure any amounts due it pursuant to the provisions of
Section 6.6 of the Indenture. The Issuer acknowledges its obligation set forth
in Section 6.6 of the Indenture to indemnify Resigning Trustee for, and to hold
Resigning Trustee harmless against, any loss, liability and expense (including
without limitation, any cost or expense hereafter incurred pursuant to Section
103 hereof) incurred without negligence or bad faith on the part of the
Resigning Trustee and arising out of or in connection with the acceptance or
administration of the Indenture or the trusts and its duties thereunder (which
obligation shall survive the execution hereof).
IN WITNESS WHEREOF, the parties hereto have caused this
Instrument of Resignation, Appointment and Acceptance to be duly executed as of
the day and year first above written.
THE XXXXXXXX COMPANIES, INC.
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
BANK ONE TRUST COMPANY, N.A.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
JPMORGAN CHASE BANK
By: /s/ X. Xxxxxx
------------------------------------
Name: X. Xxxxxx
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EXHIBIT A
Notice to Holders of ______% ________________ due ____________ (the "Notes"):
We hereby notify you of the resignation of Bank One Trust
Company, N.A., as Trustee under the Indenture, dated as of November 10, 1997,
pursuant to which your Notes were issued and are outstanding.
The Xxxxxxxx Companies, Inc. has appointed JPMorgan Chase
Bank, whose Corporate Trust Office is located at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, as Successor Trustee under the Indenture, which appointment has been
accepted and has become effective.
BANK ONE TRUST COMPANY, N.A.
as ResigningTrustee
THE XXXXXXXX COMPANIES, INC.
Dated:
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