EXHIBIT 4
AGREEMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE
THIS AGREEMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE (this
"Agreement") dated as of August 21, 1997, by and among OnBank & Trust Co., a New
York chartered trust company ("Resigning Trustee"), Telmark Inc., a New York
corporation under Indenture dated as of September 30, 1993, (the "Company"), and
Manufacturers & Traders Trust Company, a New York chartered trust company
("Successor").
WHEREAS, Resigning Trustee and the Company entered into an Indenture
dated as of September 30, 1993, the ("Indenture"), pursuant to which the
Subordinated Debentures referred on Schedule "A" (the "Debentures") were issued;
and
WHEREAS, Resigning Trustee has been acting as Trustee under the
Indenture; and
WHEREAS, the Indenture provides that the Trustee may resign and a
successor trustee be appointed; and
WHEREAS, Resigning Trustee desires to resign as Trustee and the
Company desires to appoint Successor as successor trustee under the Indenture,
and Successor desires to serve as successor trustee subject to the terms and
conditions of the Indenture and this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound, the parties hereto agree as follows:
ARTICLE I
RESIGNATION
SECTION 1.01. RESIGNATION OF RESIGNING TRUSTEE. Resigning Trustee
hereby resigns as Trustee under the Indenture, effective immediately prior to
the opening of business on the Effective Date (as hereinafter defined).
ARTICLE II
APPOINTMENT OF SUCCESSOR TRUSTEE
SECTION 2.01 APPOINTMENT. The Company hereby appoints Successor to
serve as successor trustee with all the authority, rights and powers which are
vested in, and all duties and obligations which are binding on, the Trustee
under the Indenture, effective as of the opening of business on the first
Business Day following the date of execution by the last party to execute this
Agreement (the "Effective Date"). As used herein, Business Day means a day on
which banks in the city of Buffalo, New York, or in the city where the principal
corporate trust office of the Successor is located, are not required or
authorized to remain closed and on which the New York Stock Exchange is not
closed.
SECTION 2.02 ACCEPTANCE. Successor hereby accepts the appointment by
the Company and agrees to serve as successor trustee under the Indenture and to
perform the duties and obligations of the Trustee under the Indenture, effective
as of the opening of business on the Effective Date.
SECTION 2.03 VESTING OF RIGHTS, POWERS AND DUTIES. In accordance with
the provisions of the Indenture, all rights, powers and duties of the Trustee
under the Indenture shall be vested in and undertaken by Successor, effective as
of the opening of business on the Effective Date.
SECTION 2.04 NOTICE OF DEBENTUREHOLDERS. The Company, in its capacity
as Registrar and Paying Agent, agrees to provide notice of the resignation of
Resigning Trustee and the appointment of Successor to the Debentureholders.
SECTION 2.05 ASSIGNMENT OF POWERS AND PROPERTY. Resigning Trustee
hereby confirms and assigns to Successor, in trust under the Indenture, all
property, rights, powers, duties, trusts, immunities and obligations of
Resigning Trustee as Trustee. Resigning Trustee confirms that it has transferred
to Successor (a) all monies, securities and other assets held under the
Indenture and (b) all documents relating to the trust created by the Indenture
and all other information in its possession relating to the administration and
status thereof.
SECTION 2.06 FURTHER ASSURANCES. Resigning Trustee hereby agrees, upon
reasonable request of Successor, to execute, acknowledge and deliver such
further instruments of transfer and further assurances and to do such other
things as may reasonably be required for more fully and certainly vesting and
confirming in Successor all the property, rights, powers, duties, trusts,
immunities and obligations of Resigning Trustee as Trustee under the Indenture.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company hereby represents and warrants to Successor as follows:
(a) The Company is a corporation duly organized and existing under the
laws of the State of New York;
(b) The Indenture was validly and lawfully executed and delivered by
the Company and the Debentures were validly and lawfully issued by the Company;
(c) The Company has performed or fulfilled each covenant, agreement and
condition on its part to be performed or fulfilled under the Indenture on or
prior to the date hereof; and
(d) No default or Event of Default of which the Company has notices or
is required to take notice has occurred and is continuing;
(e) All payments of principal, premium, if any, and interest on the
Debentures due and payable prior to the Effective Date have been made as
required in the Indenture; and
(f) The outstanding principal balance of the respective Debentures
issued under the Indenture is as set forth in Schedule "A". Interest thereon has
been paid through and including the respective dates shown on Schedule "A".
SECTION 3.02 REPRESENTATIONS AND WARRANTIES OF RESIGNING TRUSTEE.
Resigning Trustee hereby represents and warrants to Successor as follows:
(a) Resigning Trustee is a trust company organized and existing under
the laws of the State of New York;
(b) The Indenture is in full force and effect;
(c) Resigning Trustee has received no notice of any default or Event
of Default under the terms of the Indenture; and
(d) There is no suit, action, claim or proceeding pending or threatened
against Resigning Trustee related to the Debentures, the Indenture, or Resigning
Trustee's administration of the trusts created under the Indenture.
Other than as expressly set forth above, the Resigning Trustee makes no
representations or warranty regarding the financial condition of the Company or
its ability to fulfill its obligations under the Indenture.
SECTION 3.03 REPRESENTATIONS OF SUCCESSOR. Successor hereby represents
and warrants to Resigning Trustee and the Company as follows:
(a) Successor is a trust company organized and existing under the laws
of the State of New York; and
(b) Successor is qualified and eligible to serve as Trustee under the
Indenture.
ARTICLE IV
REGISTRAR AND PAYING AGENT
SECTION 4.01 COMPANY'S OBLIGATION. The Company, as permitted by Section
2.04 of the Indenture, agrees to act as Registrar and Paying Agent with respect
to the Debentures.
ARTICLE V
MISCELLANEOUS
SECTION 5.01 DEFINITIONS. Terms not otherwise defined in this Agreement
shall have the respective meanings assigned in the Indenture.
SECTION 5.02 COUNTERPARTS. This Agreement may be executed in a number
of counterparts, each of which shall constitute an original, but such
counterparts shall together constitute but one and the same instrument.
SECTION 5.03 PRESERVATION OF RIGHTS. Except as expressly provided
herein, nothing contained in this Agreement shall in any way affect (a) the
obligations or rights of the Company, the Resigning Trustee, the Successor or
any Debentureholder under the Indenture.
SECTION 5.04 SEVERABILITY. In the event any provisions of this
Agreement shall be held invalid or unenforceable by any court of competent
jurisdiction, such holding shall not invalidate or render unenforceable any
other provision hereof.
SECTION 5.05 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of Resigning Trustee, Successor, and the Company
and their respective successors and assigns.
Intending to be legally bound, the parties hereto have executed this
Agreement by their duly authorized corporate officers as of the date first above
written.
ADDRESS FOR NOTICES:
RESIGNING TRUSTEE:
OnBank & Trust Co. ONBANK & TRUST CO.
Trust Department By: Xxxxx Xxxxxxxx
P.O. Box 4983 Title: Vice President & Trust Operations
Xxxxxxxx, Xxx Xxxx 00000 Date: 8/21/97
SUCCESSOR:
Manufacturers & Traders MANUFACTURERS & TRADERS
Trust Company TRUST COMPANY
One M&T Plaza By: Xxxxxxx X. Xxxxxxx
Corporate Trust Dept. Title: Assistant Vice President
Xxxxxxx, Xxx Xxxx 00000 Date: 8/21/97
COMPANY:
Telmark Inc. TELMARK INC.
X.X. Xxx 0000 By: Xxxxxxx X. Xxxxxxx
Syracuse, New York 13220 Title: Secretary
Date: 8/21/97
SCHEDULE A
OUTSTANDING INTEREST
MATURITY INTEREST PRINCIPAL PAID
SERIES DATE RATE BALANCE THROUGH
------ -------- -------- ------------ -------
QA 12/31/97 6.00% 4,723,248.15 6/30/97
QB 3/31/00 8.25% 6,298,312.22 6/30/97
QC 3/31/00 8.50% 6,759,383.45 6/30/97
QD 3/31/98 8.25% 3,502,505.18 6/30/97
QE 3/31/00 8.00% 3,018,222.56 6/30/97
QF 3/31/98 7.75% 2,846,445.44 6/30/97
QG 3/31/02 7.50% 3,202,425.43 6/30/97
QH 3/31/00 7.25% 1,176,072.39 6/30/97
