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Exhibit 4.2(b) to Motorola, Inc.'s Form 10-K
for the year ended December 31, 2000
INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE, dated as of
January 22, 2001 (this "Instrument") among Motorola, Inc., a corporation duly
organized and existing under the laws of the State of Delaware, having its
principal office at 1303 East Algonquin Road, Schaumburg, Illinois 60196 (the
"Company"), Bank One Trust Company, N.A., a national banking association duly
organized and existing under the laws of the United States, having its principal
Corporate Trust Office at 1 Bank One Plaza, Chicago, Illinois 60670 ("Bank One"
or "Successor Trustee"), and BNY Midwest Trust Company (as successor trustee to
Harris Trust and Savings Bank), a banking corporation duly organized and
existing under the laws of the State of New York, having its principal office at
111 West Monroe Street, Chicago, Illinois 60603 (the "Resigning Trustee").
WHEREAS:
A. The Company issued the securities described below (collectively, the
"Securities"):
5.80% Notes due October 15, 2008 of which $325,000,000 is outstanding;
7.625% Notes due November 15, 2010 of which $1,200,000,000 is outstanding;
7.5% Debentures due May 15, 2025 of which $400,000,000 is outstanding;
6.5% Debentures due September 1, 2025 of which $400,000,000 is outstanding;
5.22% Debentures due October 1, 2097 of which $300,000,000 is outstanding; and
6.5% Debentures due November 15, 2028 of which $445,000,000 is outstanding;
under the Indenture dated as of May 1, 1995 between the Company and the
Resigning Trustee (the "Indenture");
B. The Company appointed the Resigning Trustee as the paying agent (the
"Paying Agent") and the Security Registrar (the "Security Registrar") under the
Indenture;
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C. The Indenture provides that the Resigning Trustee may at any time
resign as Trustee, Paying Agent and Security Registrar by giving written notice
thereof to the Company;
D. The Resigning Trustee represents that it has given the Company
written notice of its resignation as Trustee, Paying Agent and Security
Registrar, a true copy of which is annexed hereto marked Exhibit A;
E. The Indenture further provides that, if the Trustee shall resign,
the Company shall promptly appoint a successor Trustee;
F. The Company by resolutions of a committee authorized by its Board of
Directors, a true copy of which is annexed to a Certificate of its Secretary or
Assistant Secretary annexed hereto and marked Exhibit B, accepted the
resignation of BNY Midwest Trust Company as Trustee, Paying Agent and Security
Registrar and appointed Bank One, as successor Trustee, Paying Agent and
Security Registrar;
G. The Indenture provides that the successor Trustee shall execute,
acknowledge and deliver to the Company and the Resigning Trustee an instrument
accepting such appointment and thereupon the resignation of the Resigning
Trustee shall become effective and Bank One, as such successor Trustee, without
any further act, deed or conveyance, shall become vested with all rights,
powers, duties and obligations of the Trustee;
H. The Indenture further provides that no successor Trustee shall
accept appointment as such unless at the time it is qualified and eligible under
the Indenture and the Trust Indenture Act of 1939 and the rules and regulations
promulgated thereunder (the "Trust Indenture Act");
I. Bank One is qualified, eligible and willing to accept such
appointment as successor Trustee; and
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J. The Indenture further provides the Company shall mail notice of
appointment of a successor Trustee, Paying Agent and Security Registrar to
Holders of the Securities; and the Company, simultaneously with the execution
and delivery of this Instrument, has caused the notice required pursuant to the
Indenture, a form of which is annexed hereto and marked Exhibit C, to be mailed
to the Holders of the Securities as therein required.
NOW, THEREFORE, THIS INSTRUMENT WITNESSETH: that for and in
consideration of the premises and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, it is hereby
covenanted, declared, decreed and agreed by the Company, Bank One and the
Resigning Trustee as follows:
1. The resignation of BNY Midwest Trust Company as Trustee, Paying
Agent and Security Registrar and its discharge from the trust created by the
Indenture shall be effective as of the date hereof upon the execution and
delivery of this Instrument by all the parties hereto.
2. The Company, in the exercise of the authority vested in it by the
Indenture, hereby appoints Bank One as successor Trustee, Paying Agent and
Security Registrar with all rights, powers, trusts, duties and obligations under
the Indenture, each such appointment to be effective as of the date hereof upon
the execution and delivery of this Instrument by all the parties hereto.
3. Bank One hereby represents that it is qualified and eligible under
the provisions of the Indenture and the Trust Indenture Act to be appointed
successor Trustee, Paying Agent and Security Registrar and hereby accepts its
appointment as successor Trustee, Paying Agent and Security Registrar effective
as of the date hereof upon the execution and delivery of this Instrument by all
parties hereto, and hereby assumes the rights, powers, trusts, duties and
obligations of the Trustee, Paying Agent and Security Registrar under the
Indenture, subject to all terms and provisions therein contained.
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4. The Resigning Trustee hereby grants, gives, bargains, sells,
remises, releases, conveys, confirms, assigns, transfers and sets over to Bank
One as such successor Trustee, Paying Agent and Security Registrar and its
successors and assigns all rights, title and interest of the Resigning Trustee,
as Trustee, Paying Agent and Security Registrar in and to the trust estate and
all rights, powers and trusts, under the Indenture; and the Resigning Trustee as
Trustee, Paying Agent and Security Registrar does hereby agree to pay over,
assign and promptly deliver to Bank One as such successor Trustee, Paying Agent
and Security Registrar any and all money, if any, and property, if held by the
Resigning Trustee, as Trustee, Paying Agent and Security Registrar and the
Company for the purpose of more fully and certainly vesting in and confirming to
Bank One as such successor Trustee, Paying Agent and Security Registrar said
estate, properties, rights, powers and, at the request of Bank One, joins in the
execution hereof.
5. The Resigning Trustee hereby represents and warrants to the
Successor Trustee that:
(a) No "Event of Default" (as defined in 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) No covenant or condition contained in the Indenture has been
waived by the Resigning Trustee or by the Holders of the
percentage in aggregate principal amount of the Securities
required by the Indenture to effect any such waiver;
(c) 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 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
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by the Indenture and all information in its possession
relating to the administration and status thereof and will
furnish to the successor Trustee any of such documents or
information the Successor Trustee may select, 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 need 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)
(f) The Resigning Trustee has lawfully and fully discharged its
duties as Trustee.
6. The Company hereby represents and warrants to the Successor Trustee
that:
(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) The Securities have been duly registered under the Securities
Act of 1933, as amended, and such registration has become
effective;
(d) The Indenture complies with the Trust Indenture Act and has
been duly qualified thereunder and is a legal, valid, and
binding obligation of the Company;
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(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" and no event which, after
notice or lapse of time or both, would become an Event of
Default under the Indenture;
(g) The Company has not appointed any Security Registrar or Paying
Agent other than the Resigning Trustee; and
(h) The Company will continue to perform its obligations under the
Indenture.
7. Notwithstanding the resignation of the Resigning Trustee as Trustee
under the Indenture, the Company shall remain obligated under the Indenture to
compensate, reimburse and indemnify the Resigning Trustee in connection with its
trusteeship under the Indenture.
8. For all purposes of this Instrument, except as otherwise expressly
provided or unless the context otherwise requires, all capitalized terms used
and not defined herein that are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
9. 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.
10. This Instrument shall be governed by and construed in accordance
with the laws of the State of Illinois.
[signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Instrument to
be duly executed and their respective seals to be affixed hereunto and duty
attested all as of the day and year first above written.
MOTOROLA, INC.
By: /s/ Garth L. Milne
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[Corporate Seal] Title: Senior Vice President
and Treasurer
ATTEST:
/s/ Jeffrey A. Brown
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Assistant Secretary
BANK ONE TRUST COMPANY, N.A.
as Successor Trustee
By: /s/ Leland Hansen
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[Corporate Seal] Title: Assistant Vice President
ATTEST:
/s/ Joseph Morand
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BNY MIDWEST TRUST COMPANY
as Resigning Trustee
By: /s/ Carolyn Potter
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Title: Assistant Vice President
[Corporate Seal]
ATTEST:
/s/ D.G. Donovan
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Title: Assistant Secretary
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EXHIBIT A
Motorola, Inc.
1303 East Algonquin Road
Schaumburg, Illinois 60196
Attention: Secretary
Gentlemen:
NOTICE IS HEREBY GIVEN THAT, pursuant to Section 610 of the Indenture, dated as
of May 1, 1995 (the "Indenture"), between Motorola, Inc. and BNY Midwest Trust
Company (as successor to Harris Trust and Savings Bank), as Trustee, BNY Midwest
Trust Company hereby resigns as Trustee, Paying Agent and Security Registrar
under the Indenture, each such resignation is to be effective upon the
appointment, pursuant to Section 610 of the Indenture, of a successor Trustee
and the acceptance of such appointment by such successor Trustee, pursuant to
Section 611 of the Indenture.
Very truly yours,
BNY Midwest Trust Company
By
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Title
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EXHIBIT B
CERTIFICATE OF SECRETARY
I, ______________, do hereby certify that I am the duly appointed,
qualified and acting Secretary or Assistant Secretary of Motorola, Inc., a
Delaware corporation; I further certify that the resolution attached hereto as
Exhibit B-1 and incorporated herein by this reference, is a true and correct
copy of resolutions duly adopted by a committee authorized by the Board of
Directors of said corporation as of January ____, 2001; and I further certify
that said resolutions remain in full force and effect as of the date of this
certificate.
Dated this __ day of January, 2001
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Title:
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EXHIBIT B.1
RESOLVED, that the resignation of BNY Midwest Trust Company (as
successor to Harris Trust and Savings Bank), as Trustee, Paying Agent and
Security Registrar under an Indenture dated as of May 1, 1995 (the "Indenture")
between the Company, and BNY Midwest Trust Company (as successor to Harris Trust
and Savings Bank) in connection with the issuance of the Company's:
5.80% Notes due October 15, 2008
7.625% Notes due November 15,
7.5% Debentures due May 15, 2025
6.5% Debentures due September 1, 2025
5.22% Debentures due October 1, 2097
6.5% Debentures due November 15, 2028
is hereby accepted and Bank One Trust Company, N.A., a national banking
association, is hereby appointed as successor Trustee, Paying Agent and Security
Registrar under said Indenture; and
FURTHER RESOLVED, that any officer of the Company is hereby authorized
to enter into such agreements as may be necessary to effectuate such appointment
of Bank One Trust Company, N.A.
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EXHIBIT C
Notice to Holders of:
MOTOROLA, INC.
5.80% Notes due October 15, 2008
7.625% Notes due November 15, 2010
7.5% Debentures due May 15, 2025
6.5% Debentures due September 1, 2025
5.22% Debentures due October 1, 2097
6.5% Debentures due November 15, 2028
Motorola, Inc. hereby notifies you of the resignation of BNY Midwest Trust
Company (as successor to Harris Trust and Savings Bank), as Trustee, Paying
Agent and Security Registrar under the Indenture dated as of May 1, 1995 (the
"Indenture"), pursuant to which your Securities were issued and are outstanding.
Motorola, Inc. has appointed Bank One Trust Company, N.A., whose Corporate Trust
Office is located at 1 Bank One Plaza, Chicago, Illinois 60670, as successor
Trustee, Paying Agent and Security Registrar under the Indenture, which
appointment has been accepted and became effective as of January __, 2001
MOTOROLA, INC.
By:
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Title:
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BANK ONE TRUST COMPANY, N.A.
By:
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Title:
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