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Exhibit 4.3
INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE, (the
"Instrument") dated as of July 23, 1997, among Hercules Incorporated, a
corporation duly organized and existing under the laws of the State of Delaware,
having its principal office at 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000 (the "Company"), Mellon Bank, N.A., a banking corporation duly organized
and existing under the laws of the United States of America, having its
principal corporate trust office at Two Mellon Bank Center, Room 325,
Xxxxxxxxxx, XX 00000 (the "Resigning Trustee"), and PNC Bank, Delaware, a
corporation duly organized and existing under the laws of the State of Delaware,
having its principal corporate trust office at 000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx,
XX 00000 (the "Successor Trustee");
RECITALS
There are presently issued and outstanding $125,000,000 of the
Company's 6 5/8% Notes due 2003 (the "Securities"), under an Indenture dated as
of May 15, 1993 (the "Indenture"), between the Company and BankAmerica National
Trust Company, predecessor trustee to the Resigning Trustee.
The Resigning Trustee has been requested and has agreed to resign as
Trustee under the Indenture; the Company wishes to appoint the Successor Trustee
to succeed the Resigning Trustee as Trustee under the Indenture; and the
Successor Trustee wishes to accept appointment as Trustee under the Indenture.
NOW THEREFORE, the Company, the Resigning Trustee and the Successor
Trustee agree as follows:
ARTICLE ONE
THE RESIGNING TRUSTEE
Section 101. Pursuant to Section 610 of the Indenture, the Resigning
Trustee hereby gives notice to the Company of its resignation as Trustee,
Registrar, Paying Agent and all other appointments under the Indenture,
effective as of the date hereof and the Company hereby waives any additional
requirement as to notice under the Indenture.
Section 102. The Resigning Trustee hereby represents and warrants to
the Successor Trustee (without having conducted any investigation or inquiry)
that as of the date hereof:
(a) To the best knowledge of the Responsible Officers of the Resigning
Trustee assigned to its Corporate Trust Department, 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;
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(b) No covenant or condition contained in the Indenture has been waived
by the Resigning Trustee or, to the best knowledge of the Responsible Officers
of the Resigning Trustee assigned to its Corporate Trust Department, by the
holders of the percentage in aggregate principal amount of the Securities
required by the Indenture to effect any such waiver;
(c) To the best knowledge of the Responsible Officers of the Resigning
Trustee assigned to its Corporate Trust Department, there is no action, suit, or
proceeding pending or threatened against the Resigning Trustee before any court
or government authority arising out of any action or omission by the Resigning
Trustee as Trustee under the Indenture to which the Trustee has been named as a
party; and
(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 in its possession and all recorded
information in the possession of its Corporate Trust Department relating to the
administration and status thereof, provided that the Resigning Trustee may
retain copies thereof and provided further 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 instituted or
threatened against the Resigning Trustee and Trustee under the Indenture or
which the Resigning Trustee may need for any other proper purposes.
Section 103. The Resigning Trustee hereby assigns, transfers, and
delivers to the Successor Trustee as is and without recourse all right, title,
and interest of the Resigning Trustee in and to the trusts under the Indenture
and all the rights, powers, and trusts of the Trustee under the Indenture. The
Resigning Trustee shall execute and deliver such further instruments as the
Successor Trustee may reasonably require so as to more fully and certainly vest
and confirm in the Successor Trustee all the rights, trusts, and powers hereby
assigned, transferred, and delivered to the Successor Trustee, all at the
expense of the Company.
Section 104. The ongoing duties of the Resigning Trustee relating to
the representations and warranties contained in Sections 102(d) and 103 shall
expire ninety (90) days after the date first set forth in the recitals.
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ARTICLE TWO
THE COMPANY
Section 201. Annex hereto marked as Exhibit A is a Certificate wherein
the Secretary or Assistant Secretary of the Company attests to the execution of
this Instrument by the Company and certifies that the Board of Directors or a
duly authorized Committee thereof has approved of and authorized (and such
approval and authorization is in full force and effect on the date hereof)
certain officers of the Company to (a) accept the Resigning Trustee's
resignation as Trustee under the Indenture; (b) appoint the Successor Trustee as
Trustee 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 under the Indenture.
Section 202. The Company hereby appoints the Successor Trustee as
Trustee under the Indenture and confirms to the Successor Trustee all rights,
powers, and trusts of the Trustee under the Indenture. The Company 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, trusts, and powers hereby
assigned, transferred, delivered, and confirmed to the Successor Trustee.
Section 203. Promptly after the execution and delivery of this
Instrument, the Company shall cause a notice, the form of which is annexed
hereto as Exhibit B, to be sent to each holder of the Securities in
accordance with the provisions of the Indenture, with copies to the Resigning
Trustee and the Successor Trustee.
Section 204. The Company hereby represents and warrants to the
Successor Trustee and the Resigning Trustee (without having conducted any
investigation or inquiry) 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 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; the Indenture complies with the Trust Indenture Act
of 1939, as amended, and has been duly qualified thereunder
and is a legal, valid, and binding obligation of the Company;
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(d) The Company has performed or fulfilled each covenant,
agreement, and condition on its part to be performed or
fulfilled under the Indenture;
(e) The Company has no knowledge of the existence of any default,
Event of Default, or any event which upon notice or passage of
Time or both would become an Event of Default under the
Indenture;
(f) The Company has not appointed any paying agent other than
the Resigning Trustee under the Indenture; and
(g) The Company will continue to perform the obligations
undertaken by it under the Indenture.
ARTICLE THREE
THE SUCCESSOR TRUSTEE
Section 301. The Successor Trustee hereby represents and warrants to
the Resigning Trustee and to the Company that the Successor Trustee is qualified
under the Indenture and under the provisions of Section 310 of the Trust
Indenture Act of 1939, as amended, to act as Trustee under the Indenture.
Section 302. The Successor Trustee hereby accepts its appointment as
Trustee under the Indenture and shall hereby be vested with all the authority,
rights, powers, trusts, immunities, duties, and obligations of the Trustee under
the Indenture and shall undertake any transfers, assignments, deliveries,
recordings, continuations, filings, and other steps necessary to effectuate its
appointment and duties as Trustee, all as contemplated by Section 103 hereof.
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. (a) This Instrument and the resignations, appointments,
and acceptances 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.
(b) Simultaneously with the execution and delivery of this
Instrument by each of the parties hereto, the Resigning Trustee and the
Successor Trustee shall each deliver a copy of their respective Signature
Resolutions and the Company shall deliver a copy of an Incumbency Certificate to
each of the other parties hereto.
Section 403. Notwithstanding the resignation of the Resigning Trustee
effected hereby, the Company shall remain obligated under the Indenture to
compensate, reimburse, and indemnify the Resigning Trustee in connection with
its trusteeship and any agencies under the Indenture and any related financing
documents.
Section 404. This Instrument shall be governed by and construed in
accordance with the laws of the State of Delaware.
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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 one and the same instrument.
Section 406. There shall be no third-party beneficiaries of this
Instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Instrument of
Resignation, Appointment, and Acceptance to be duly executed and their
respective seals to be affixed hereunto and duly attested all as of the day and
year first above written.
HERCULES INCORPORATED
By: /s/
--------------------------------
Treasurer
PNC BANK, DELAWARE
By: /s/
--------------------------------
MELLON BANK, N.A.
By: /s/
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EXHIBIT B
Notice of holder of
$125,000,000 6.625% Notes Due June 1, 2003, (the "Notes")
(CUSIP#AM8)
Hercules Incorporated
We hereby notify you of the resignation of Mellon Bank, N.A., as
Trustee under the Indenture dated as of May 15, 1993, pursuant to which your
Notes were issued and are outstanding.
Hercules Incorporated has appointed PNC Bank, Delaware, whose
principal Corporate Trust Office is located at 000 Xxxxxxxx Xxxxxx,
Xxxxxxxxxx, XX 00000, as Successor Trustee under the Indenture, which
appointment has been accepted and became effective as of __________, 1997.
PNC Bank, Delaware, with offices at 000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx,
XX 00000, will become Paying Agent and Registrar and serve at the office or
agency where the Notes may be presented for payment and for registration of
transfer and exchange and where notices and demands with respect to the
Indenture and of the Notes may be served.
Hercules Incorporated
PNC Bank, Delaware
Mellon Bank, N.A.
Dated. ___________, 1997
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*This CUSIP number is included solely for the convenience of the holders. None
of Hercules Incorporated, the Trustee, the Successor Trustee, the Paying Agent
or the Registrar shall be responsible for the selection or use of this CUSIP
number, nor is any representation made as to its correctness.
