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EXHIBIT 4.5
INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE
This INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE (this
"Instrument"), by and among Xxxxxxxx-Xxxxx Corporation, a Delaware corporation
(the "Company"), The First National Bank of Chicago, a national banking
association (the "Successor Trustee"), and Bank of America National Trust and
Savings Association (the "Resigning Trustee") is dated as of December 12, 1995.
WHEREAS, there are presently issued and outstanding $50,132,000 in
aggregate principal amount of the Company's 9-1/2% Sinking Fund Debentures due
February 1, 2018, $100,000,000 in aggregate principal amount of the Company's
9-1/8% Notes due June 1, 1997, $100,000,000 in aggregate principal amount of
the Company's 9% Notes due August 1, 2000, $200,000,000 in aggregate principal
amount of the Company's 8-5/8% Notes due May 1, 2001, $200,000,000 in aggregate
principal amount of the Company's 7-7/8% Debentures due February 1, 2023,
$100,000,000 in aggregate principal amount of the Company's 6-7/8% Debentures
due February 15, 2014 and $40,000,000 in aggregate principal amount of the
Company's 7.55% Debentures due June 1, 2014(collectively, the "Securities"), in
each case under the First Amended and Restated Indenture dated as of March 1,
1988, as amended by the First and Second Supplemental Indentures thereto, dated
as of November 6, 1992 and May 25, 1994, respectively, between the Company and
the Resigning Trustee (the "Indenture"); and
WHEREAS, the Resigning Trustee wishes to resign as Trustee under the
Indenture (the "Trustee"), the Company wishes to appoint the Successor Trustee
to succeed the Resigning Trustee as Trustee, and the Successor Trustee wishes
to accept its appointment as Trustee;
NOW, THEREFORE, the Company, the Successor Trustee and the Resigning
Trustee, in consideration of the foregoing premises and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
agree as follows:
I. The Resigning Trustee
Section 1.1. Pursuant to Section 610(b) of the Indenture, the
Resigning Trustee hereby resigns as Trustee thereunder.
Section 1.2. The Resigning Trustee hereby represents and warrants
to the Successor Trustee that:
(a) To the best of its knowledge, no "Event of Default" (as
defined in Section 501 of the Indenture) and no event which,
after notice or lapse of time or both, would become an Event
of Default, has occurred and is continuing under the
Indenture;
(b) To the best of its knowledge, no covenant or condition
contained in the Indenture has been waived by the Resigning
Trustee or by the Holders of the percentage of aggregate
principal amount of the Securities required by the Indenture
to effect any such waiver;
(c) To the best of its knowledge, there is no action, suit, or
proceeding pending or threatened against the Resigning Trustee
before any court or governmental authority arising out of any
action of or omission by the Resigning Trustee as Trustee;
(d) The Resigning Trustee has furnished, or as promptly as
practicable will furnish, to the Successor Trustee originals
of all documents relating to the trust created by the
Indenture and all other information in its possession relating
to the
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administration and status thereof, provided that the Successor
Trustee will make available to the Resigning Trustee as
promptly as practicable following the request of the Resigning
Trustee any such original documents which the Resigning
Trustee may require in order to defend against any action,
suit, or proceeding against the Resigning Trustee as Trustee
or which the Resigning Trustee may need for any other proper
purpose;
(e) The Resigning Trustee has not delegated to any other party any
of its duties as Trustee, Security Registrar, or Paying Agent,
and has not appointed any Authenticating Agent; and
(f) The Resigning Trustee has lawfully and fully discharged its
duties as Trustee.
Section 1.3. The Resigning Trustee hereby assigns, transfers,
delivers, and confirms to the Successor Trustee all right, title, and interest
of the Resigning Trustee in and to the trust under the Indenture and all of its
rights, powers, and trusts as Trustee thereunder. The Resigning Trustee shall
execute and deliver such further instruments and shall do such other things as
the Successor Trustee may reasonably require to more fully and certainly vest
and confirm in the Successor Trustee all the rights, trusts, and powers hereby
assigned, transferred, delivered, and confirmed to the Successor Trustee.
Section 1.4. The Resigning Trustee agrees to indemnify the
Successor Trustee against any loss, liability, or expense (including the costs
and expenses of defending against any claim of liability) incurred by the
Successor Trustee by reason of any negligence or bad faith on the part of the
Resigning Trustee or its agents, employees, or officers in the performance of
its duties under the Indenture while acting as Trustee thereunder. The
Successor Trustee, upon learning of any claim for which the Successor Trustee
may seek indemnity hereunder, shall promptly notify the Resigning Trustee of
such claim. The Resigning Trustee shall not be obliged to indemnify the
Successor Trustee with respect to the defense of any such claim which the
Successor Trustee voluntarily settles without the prior written consent of the
Resigning Trustee.
II. The Company
Section 2.1. The Chief Executive Officer of the Company has been
duly authorized to: (a) appoint the Successor Trustee as Trustee, and (b)
execute and deliver such agreements and other instruments as may be necessary
or desirable to effectuate the succession of the Successor Trustee as Trustee.
Section 2.2. The Company hereby accepts the Resigning Trustee's
resignation as Trustee, appoints the Successor Trustee as Trustee, and confirms
to the Successor Trustee all the rights, powers, and trusts of the Trustee.
The Company shall execute and deliver such further instruments and do such
other things as the Successor Trustee may reasonably require to more fully and
certainly vest and confirm in the Successor Trustee all the rights, trusts, and
powers hereby assigned, transferred, delivered, and confirmed to the Successor
Trustee.
Section 2.3. Promptly after the execution and delivery of this
Instrument, the Company shall cause a notice, the form of which is annexed
hereto as Exhibit A, to be sent to each Holder of the Securities in accordance
with the provisions of Section 610(f) of the Indenture.
Section 2.4. The Company hereby represents and warrants to the
Successor Trustee that:
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(a) It is a duly incorporated and existing corporation in good
standing under the laws of the State of Delaware and has full power
and authority to execute and deliver this Instrument;
(b) This Instrument has been duly and validly authorized,
executed, and delivered by the Company and constitutes a legal, valid,
and binding obligation of the Company;
(c) To the extent required by the Securities Act of 1933, as
amended, the Securities have been duly registered under such Act, and
such registrations have become effective;
(d) The Indenture complies with the Trust Indenture Act of 1939,
as amended, has been duly qualified thereunder, and is a legal, valid,
and binding obligation of the Company;
(e) The Company has performed or fulfilled each covenant,
agreement, and condition on its part to be performed or fulfilled
under the Indenture;
(f) There is no Event of Default on the part of the Company and no
event which, after notice or lapse of time or both, would become an
Event of Default on the part of the Company under the Indenture;
(g) The Company has not appointed any Registrar or Paying Agent
other than the Resigning Trustee; and
(h) The Company will continue to perform its obligations under the
Indenture.
III. The Successor Trustee
Section 3.1. The Successor Trustee hereby represents and warrants
to the Resigning Trustee and to the Company that the Successor Trustee is
qualified under Section 609 of the Indenture and Section 310 of the Trust
Indenture Act of 1939, as amended, to act as Trustee.
Section 3.2. The Successor Trustee hereby accepts its appointment
as Trustee and shall hereby be vested with all the authority, rights, powers,
trusts, immunities, duties, and obligations of the Trustee.
Section 3.3. The Successor Trustee agrees to indemnify the
Resigning Trustee against any loss, liability, or expense (including the costs
and expenses of defending against any claim of liability) incurred by the
Resigning Trustee by reason of any negligence or bad faith on the part of the
Successor Trustee or its agents, employees, or officers in the performance of
its duties under the Indenture while acting as Trustee thereunder. The
Resigning Trustee, upon learning of any claim for which the Resigning Trustee
may seek indemnity hereunder, shall promptly notify the Successor Trustee of
such claim. The Successor Trustee shall not be obliged to indemnify the
Resigning Trustee with respect to the defense of any such claim which the
Resigning Trustee voluntarily settles without the prior written consent of the
Successor Trustee.
IV. Miscellaneous
Section 4.1. 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
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assigned to them in the Indenture.
Section 4.2. This Instrument and the resignation, appointment, and
acceptance effected hereby shall be effective as of the close of business on
the date first above written upon the execution and delivery hereof by each of
the parties hereto.
Section 4.3. Notwithstanding the resignation of the Resigning
Trustee effected hereby, the Resigning Trustee shall remain entitled under
Section 607 of the Indenture to receive compensation, reimbursement, and
indemnity in connection with its trusteeship under the Indenture.
Section 4.4. This Instrument shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to
principles regarding conflict of laws.
Section 4.5. 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.
IN WITNESS WHEREOF, the parties hereto have caused this Instrument of
Resignation, Appointment, and Acceptance to be duly executed, with their
respective seals affixed hereto, and duly attested, all as of the day and year
first above written.
XXXXXXXX-XXXXX CORPORATION
[Corporate Seal]
By: W. Xxxxxxx Xxxxxx
Title: Vice President and Treasurer
Attest:
By: Xxxxxxxx Jorella
Title: Assistant Secretary
THE FIRST NATIONAL BANK OF
CHICAGO, as Successor Trustee
[Corporate Seal]
By: Xxxxx Xxxxxxx
Title: Assistant Vice President
Attest:
By: Xxxxxxx Xxxxxxx
Title: Assistant Vice President
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Trustee
[Corporate Seal]
By: Xxxxx Xxxxx
Title: Vice President
Attest:
By: Xxxxxxxx Xxxxxx
Title: Vice President
STATE OF TEXAS )
) ss.
COUNTY OF DALLAS )
On October 31, 1995, before me, the undersigned Notary Public in and for said
State, personally appeared W. Xxxxxxx Xxxxxx, personally known to me, or who
proved to me on the basis of satisfactory evidence, to be a Vice President and
Treasurer, and Xxxxxxxx Jorella, personally known to me, or who proved to me on
the basis of satisfactory evidence, to be a Assistant Secretary, of
Xxxxxxxx-Xxxxx Corporation, the corporation that executed the within
Instrument, and who acknowledged to me that they were duly authorized to
execute under the seal of such corporation, and did in fact execute under the
seal of such corporation, the within Instrument on behalf of such corporation.
WITNESS my hand and official seal.
(Seal) Xxxxxx X. Xxxxx
Notary Public
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STATE OF ILLINOIS )
) ss.
COUNTY OF XXXX )
On November 1, 1995, before me, the undersigned Notary Public in and for said
State, personally appeared X. Xxxxxxx, personally known to me, or who proved to
me on the basis of satisfactory evidence, to be a Assistant Vice President, and
Xxxxxxx Xxxxxxx, personally known to me, or who proved to me on the basis of
satisfactory evidence, to be a Assistant Vice President, of The First National
Bank of Chicago, the association that executed the within Instrument, and who
acknowledged to me that they were duly authorized to execute under the seal of
such association, and did in fact execute under the seal of such association,
the within Instrument on behalf of such association.
WITNESS my hand and official seal.
(Seal) Notary Public
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN FRANCISCO )
On November 3, 1995, before me, the undersigned Notary Public in and for said
State, personally appeared Xxxxx Xxxxx, personally known to me, or who proved
to me on the basis of satisfactory evidence, to be a Vice President, and
Xxxxxxxx Xxxxxx, personally known to me, or who proved to me on the basis of
satisfactory evidence to be a Vice President, of Bank of America National Trust
and Savings Association, the association that executed the within Instrument,
and who acknowledged to me that they were duly authorized to execute under the
seal of such association, and did in fact execute under the seal of such
association, the within Instrument on behalf of such association.
WITNESS my hand and official seal.
(Seal) Xxxxxxx X. Sun
Notary Public
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EXHIBIT A
NOTICE TO HOLDERS
OF
XXXXXXXX-XXXXX CORPORATION
9-1/2% SINKING FUND DEBENTURES DUE FEBRUARY 1, 2018 (CUSIP 000000XX0),
9-1/8% NOTES DUE JUNE 1, 1997 (CUSIP 000000XX0),
9% NOTES DUE AUGUST 1, 2000 (CUSIP 000000XX0),
8-5/8% NOTES DUE MAY 1, 2001 (CUSIP 000000XX0),
7-7/8% DEBENTURES DUE FEBRUARY 1, 2023 (CUSIP 494368AP5),
6-7/8% DEBENTURES DUE FEBRUARY 15, 2014 (CUSIP 000000XX0) AND
7.55% DEBENTURES DUE JUNE 1, 2014
NOTICE IS HEREBY GIVEN by XXXXXXXX-XXXXX CORPORATION (the "Company") that Bank
of America National Trust and Savings Association has resigned as Trustee under
the First Amended and Restated Indenture dated as of March 1, 1988, as amended
by the First and Second Supplemental Indentures thereto, dated as of November
6, 1992 and May 25, 1994, respectively (the "Indenture"), pursuant to which the
Company's 9-1/2% Sinking Fund Debentures due February 1, 2018, 9-1/8% Notes due
June 1, 1997, 9% Notes due August 1, 2000, 8-5/8% Notes due May 1, 2001, 7-7/8%
Debentures due February 1, 2023, 6-7/8% Debentures due February 15, 2014 and
7.55% Debentures due June 1, 2014 (collectively, the "Securities") were issued
and are outstanding, and as the office or agency of the Company where the
Securities may be presented and surrendered for payment and registration of
transfer or exchange, and where notices and demands to or upon the Company in
respect of the Securities and the Indenture may be served, such resignation to
become effective as of the close of business on December 12, 1995.
The Company has appointed The First National Bank of Chicago, having its
corporate trust office at Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000-0000, as successor Trustee under the Indenture, and First
Chicago Trust Company of New York,, having its office at 00 Xxxx Xxxxxx, 0xx
Floor-Window 0, Xxx Xxxx, Xxx Xxxx 00000, as the Company's office or agency in
the Borough of Manhattan, The City of New York, for the payment, registration,
transfer and exchange of Securities and for the receipt of notices and demands
to or upon the Company in respect of the Securities or the Indenture, which
appointments have been accepted and will become effective as of the close of
business on December 12, 1995.
XXXXXXXX-XXXXX CORPORATION
000 Xxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
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