Exhibit 4.22
INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE, dated as of
September 6, 2000, among EXODUS COMMUNICATIONS, INC., a Delaware corporation,
having its principal office at 0000 Xxxxxxx Xxxxxxx Xxxxxxxxx, Xxxxx Xxxxx,
Xxxxxxxxxx 00000 (the "Company"), CHASE MANHATTAN BANK AND TRUST COMPANY,
NATIONAL ASSOCIATION, a national banking association duly organized and existing
under the laws of the United States, having its corporate trust office at 000
Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 ("Chase" or the
"Resigning Trustee"), and HSBC BANK USA, a banking corporation and trust company
duly organized and existing under the laws of the State of New York, having its
principal corporate trust office at 000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Successor Trustee").
RECITALS
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There is presently outstanding $72,007,000 in aggregate principal
amount of the Company's 5% Convertible Subordinated Notes due March 15, 2006
(the "Securities") under an Indenture, dated as of March 1, 1999 (the
"Indenture"), between the Company and the Resigning Trustee.
The Resigning Trustee wishes 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, in consideration of the mutual covenants and promises
herein, the receipt and sufficiency of which is hereby acknowledged, the
Company, the Resigning Trustee and the Successor Trustee agree as follows:
ARTICLE ONE
THE RESIGNING TRUSTEE
Section 101. Pursuant to Section 6.9 of the Indenture, the Resigning
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Trustee hereby notifies the Company that the Resigning Trustee is hereby
resigning as Trustee under the Indenture.
Section 102. The Resigning Trustee hereby represents and warrants to
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the Successor Trustee that:
(a) No covenant or condition contained in the Indenture has been
waived by the Resigning Trustee.
(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 date of this Instrument, the Resigning Trustee
holds no property under the Indenture.
(d) This Instrument has been duly authorized, executed and
delivered on behalf of the Resigning Trustee.
Section 103. The Resigning Trustee hereby assigns, transfers,
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delivers and confirms to the Successor Trustee all right, title and interest of
the Resigning Trustee in and to the trust under the Indenture, all the rights,
powers and trusts of the Trustee under the Indenture and all property and money
held by such Resigning 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 and trusts
hereby assigned, transferred, delivered and confirmed to the Successor Trustee.
Section 104. Chase hereby accepts its appointment as Authenticating
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Agent pursuant to Section 6.12 of the Indenture.
ARTICLE TWO
THE COMPANY
Section 201. The Company hereby certifies that annexed hereto marked
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Exhibit A is a copy of resolutions duly adopted by the Board of Directors of the
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Company, and in full force and effect on the date hereof, authorizing 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
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Trustee under the Indenture and confirms to the Successor Trustee all the
rights, powers and trusts of the Trustee under the Indenture and with respect to
all property and money held or to be held 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, powers and trusts
hereby assigned, transferred, delivered and confirmed to the Successor Trustee.
Section 203. The Company hereby represents and warrants to the
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Successor Trustee that:
(a) No Event of Default 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 Holders of the percentage in aggregate principal amount
of the Securities required by the Indenture to effect any such waiver.
(c) The Indenture has not been amended or modified and is in
full force and effect.
(d) The Securities are validly issued securities of the Company.
(e) The Company is a corporation duly and validly organized and
existing pursuant to the laws of the State of Delaware.
(f) There is no action, suit or proceeding pending or, to the
best of the Company's knowledge, threatened against the Company before
any court or any governmental authority arising out of any action or
omission by the Company under the Indenture.
(h) This Instrument has been duly authorized, executed and
delivered on behalf of the Company and constitutes its legal, valid
and binding obligation.
(i) All conditions precedent relating to the appointment of HSBC
Bank USA as successor Trustee under the Indenture have been complied
with by the Company.
Section 204. The Company hereby consents to the appointment of Chase
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as Authenticating Agent pursuant to Section 6.12 of the Indenture.
ARTICLE THREE
THE SUCCESSOR TRUSTEE
Section 301. The Successor Trustee hereby represents and warrants to
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the Resigning Trustee and to the Company that the Successor Trustee is qualified
and eligible under the provisions of Section 6.8 of the Indenture to act as
Trustee under the Indenture.
Section 302. The Successor Trustee hereby accepts its appointment as
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Trustee under the Indenture and shall hereby be vested with all the rights,
powers, trusts and duties of the Trustee under the Indenture and with respect to
all property and money held or to be held under the Indenture.
Section 303. The Successor Trustee hereby appoints Chase as
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Authenticating Agent pursuant to Section 6.12 of the Indenture.
Section 304. Promptly after the execution and delivery of this
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Instrument, the Company shall cause a notice, a form of which is annexed hereto
marked Exhibit B, to be sent to each Holder of the Securities in accordance with
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the provisions of the Indenture.
ARTICLE FOUR
MISCELLANEOUS
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Section 401. Except as otherwise expressly provided or unless the
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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. Notwithstanding the terms hereof, Chase shall continue
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to act as (i) Security Registrar, Paying Agent and Conversion Agent and (ii) the
office or agency where the Securities may be surrendered for registration of
transfer or exchange or for presentation for payment or for conversion,
redemption or repurchase and where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served, pursuant to Section
10.2 of the Indenture.
Section 403. This Instrument and the resignation, appointment and
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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 404. Notwithstanding the resignation of the Resigning Trustee
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effected hereby, the Company shall remain obligated under Section 6.7 of the
Indenture to compensate, reimburse and indemnify Chase in connection with (i)
its prior trusteeship under the Indenture, and (ii) its continuing roles under
the Indenture, including without limitation, as set forth in Sections 104 and
402 above. The Company also acknowledges and reaffirms its obligations to the
Successor Trustee as set forth in Section 6.7 of the Indenture, which
obligations shall survive the execution hereof.
Section 405. This Instrument shall be governed by and construed in
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accordance with the laws of the jurisdiction which govern the Indenture and its
construction.
Section 406. This Instrument may be executed in any number of
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counterparts each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
[Remainder of Page Intentionally Left Blank]
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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.
EXODUS COMMUNICATIONS, INC.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Senior Vice President, Legal and
Corporate Affairs, General Counsel and
Secretary
CHASE MANHATTAN BANK AND TRUST
COMPANY,
NATIONAL ASSOCIATION, as
Resigning Trustee
By /s/ X. X. Xxxxxx
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Name: X. X. Xxxxxx
Title: Vice President
HSBC BANK USA, as Successor Trustee
By /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
EXHIBIT A
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BOARD RESOLUTIONS
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The following is a true copy of resolutions duly adopted on September
6, 2000, by the Board of Directors of Exodus Communications, Inc.:
"RESOLVED, that the Corporation appoint HSBC Bank USA as successor
Trustee ("Successor Trustee") under the Indenture, dated as of March
1, 1999 (the "Indenture"), by and between the Corporation and Chase
Manhattan Bank and Trust Company, National Association ("Resigning
Trustee"), as Trustee, pursuant to which the Corporation issued, and
there are currently outstanding, $72,007,000 aggregate principal
amount of the Corporation's 5% Convertible Subordinated Notes due
March 15, 2006; and that the Corporation accept the resignation of
Resigning Trustee as Trustee under the Indenture, such resignation to
be effective upon the execution and delivery by Successor Trustee to
the Corporation of an instrument or instruments accepting such
appointment as successor Trustee under the Indenture; and it is
further
RESOLVED, that the Chairman of the Board, the President, any Executive
Vice President, Vice President, the Treasurer or any Assistant
Treasurer of the Corporation be, and each of them hereby is,
authorized, empowered and directed to execute and deliver in the name
and on behalf of the Corporation an instrument or instruments
appointing Successor Trustee as the successor Trustee and accepting
the resignation of Resigning Trustee; and it is further
RESOLVED, that the proper officers of the Corporation are hereby
authorized, empowered and directed to do or cause to be done all such
acts or things, and to execute and deliver, or cause to be executed or
delivered, any and all such agreements, amendments, instruments,
certificates, documents or papers (including, without limitation, any
and all notices and certificates required to be given or made on
behalf of the Corporation to Successor Trustee or to Resigning
Trustee) under the terms of any of the executed instruments in
connection with the resignation of Resigning Trustee and the
appointment of Successor Trustee, in the name and on behalf of the
Corporation as any of such officers, in his/her discretion, may deem
necessary or advisable to effectuate or carry out the purposes and
intent of the foregoing resolutions and to exercise any of the
Corporation's obligations under the instruments and agreements
executed on behalf of the Corporation in connection with the
resignation of Resigning Trustee and the appointment of Successor
Trustee."
EXHIBIT B
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Notice to Holders of Exodus Communications, Inc.'s 5% Convertible Subordinated
Notes due March 15, 2006:
We hereby notify you of the resignation of Chase Manhattan Bank and
Trust Company, National Association, as Trustee under the Indenture, dated as of
March 1, 1999, pursuant to which your Securities were issued and are
outstanding.
We have appointed HSBC Bank USA, whose corporate trust office is
located at 000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as successor Trustee under
the Indenture, which appointment has been accepted and has become effective as
of September 6, 2000.
EXODUS COMMUNICATIONS, INC.
Date: ___________________________, 2000
