Exhibit 4.7
RESIGNATION, APPOINTMENT AND ACCEPTANCE AGREEMENT
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THIS AGREEMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE (this
"Agreement"), dated as of April 25, 2002, is made by and among Bank One Trust
Company, N.A., a national banking association duly organized under the laws of
the United States of America (the "Prior Trustee"), HSBC Bank USA, a banking
corporation and trust company duly organized and existing under the laws of the
State of New York (the "Successor Trustee"), and Hawk Corporation, a corporation
duly organized and existing under the laws of the State of Delaware (the
"Issuer"). This instrument shall be governed by and construed in accordance with
the laws of the State of Ohio.
WHEREAS, the Issuer issued $100,000,000 of 10 1/4% Senior Notes due 2003
under an Indenture dated as of November 27, 1996, between the Issuer and the
Prior Trustee (as amended through the date hereof, the "Indenture"), of which
Series B 10 1/4% Senior Notes due 2003 in aggregate principal amount of
$65,000,000 (collectively, the "Notes") are currently issued and outstanding;
and
WHEREAS, the Prior Trustee currently serves as Indenture Trustee under the
Indenture; and
WHEREAS, the Indenture provides that, if the Trustee shall resign, the
Issuer shall promptly appoint a successor Trustee; and
WHEREAS, the Prior Trustee desires to resign as Trustee and the Issuer
desires to appoint the Successor Trustee as successor Trustee under the
Indenture, and the Successor Trustee desires to serve as successor Trustee and
subject to the terms and conditions of the Indenture and this Agreement; and
WHEREAS, following the execution and delivery of this instrument, the
Successor Trustee will cause the notice required pursuant to the Indenture, a
form of which is annexed hereto marked as Exhibit A, to be mailed to the
registered Holders of the Notes as required by the Indenture;
NOW THEREFORE, in consideration of the mutual covenants and agreement
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I.
RESIGNATION
Section 1.01. RESIGNATION OF THE PRIOR TRUSTEE. The Prior Trustee hereby
resigns as the Trustee under the Indenture and related legal documents; such
resignation to become effective immediately prior to the opening of business on
the Effective Date (as hereinafter
defined). Notwithstanding the resignation of the Prior Trustee as the Trustee
under the Indenture, the Issuer shall remain obligated to indemnify the Prior
Trustee in accordance with Section 7.7 of the Indenture.
Section 1.02. NOTICE OF RESIGNATION TO THE ISSUER. The Prior Trustee has
given written notice of resignation to the Issuer pursuant to the Indenture, a
copy of which is annexed hereto marked as Exhibit B.
ARTICLE II.
APPOINTMENT OF SUCCESSOR TRUSTEE
Section 2.01. APPOINTMENT. The Issuer hereby appoints the Successor Trustee
to serve as a successor Trustee, Registrar and Paying Agent under the Indenture
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 and
related documents, effective at the opening of business on the first Business
Day following the date upon which a fully executed counterpart of this Agreement
is delivered to each of the parties hereto (the "Effective Date"). As used
herein, "Business Day" means a day on which banks in the city where the
principal corporate trust office of the Successor Trustee 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. The Successor Trustee is qualified to serve as a
successor Trustee under the Indenture and related documents and hereby accepts
the appointment by the Issuer and agrees to serve as a successor Trustee under
the Indenture and to perform the duties and obligations of the Trustee under the
Indenture, effective at the opening of business on the Effective Date. The
Successor Trustee shall timely make any and all filings required by the TIA and
any related rules or regulations with respect to its succession as the Trustee
under the Indenture.
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 the Successor Trustee,
effective at the opening of business on the Effective Date.
Section 2.04. NOTICE OF SUCCESSION. The Successor Trustee agrees to
promptly notify all registered Holders of its appointment as a successor Trustee
in accordance with the terms of Sections 7.8 and 11.2 of the Indenture, which
notice shall have substantially the same form and content as Exhibit A. The
Successor Trustee further agrees to promptly notify The Depository Trust Company
and Cede & Co. of its appointment as a successor Trustee, Registrar and Paying
Agent under the Indenture.
Section 2.05. ASSIGNMENT OF POWERS AND PROPERTY. The Prior Trustee hereby
confirms, assigns, transfers and sets over to the Successor Trustee, its
successors and assigns in trust under the Indenture, all property, rights,
powers, duties, trusts, immunities and obligations of the Prior Trustee as the
Trustee under the Indenture and related documents. As of the Effective Date, the
Prior Trustee will hold no property under the Indenture.
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Section 2.06. FURTHER ASSURANCES. The Prior Trustee hereby agrees, upon
reasonable request of the Successor Trustee, 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 the Successor Trustee all the property, rights, powers, duties,
trusts, immunities and obligations of Prior Trustee as the Trustee under the
Indenture and related documents.
Section 2.07. CONVERSION. The Prior Trustee shall transfer the following
items to the Successor Trustee on or prior to the Effective Date:
a. Original executed copies of the Indenture, and closing transcripts;
b. Registered holder lists (including name, address, tax identification
number and detailed holdings for each holder) certified to be accurate
by the Prior Trustee;
c. Note debt service and loan payment records;
d. Trust account statements for a one-year period preceding the Effective
Date;
e. All securities and moneys held by the Prior Trustee pursuant to the
Indenture;
f. All Notices sent to Holders and Issuer regarding any current or
continuing defaults;
g. All unissued Note inventory or DTC FAST held global certificates; and
h. Such other documentation as the Successor Trustee may reasonably
require in order to transfer the appointment to it.
ARTICLE III.
MISCELLANEOUS
Section 3.01. DEFINITIONS. Terms not otherwise defined in this Agreement
shall have the meanings given thereto in the Indenture.
Section 3.02. COMPENSATION. The Issuer agrees to pay to the Successor
Trustee reasonable compensation for its services in accordance with Section 7.7
of the Indenture.
Section 3.03. COUNTERPARTS. This Agreement may be executed in a number of
counterparts, each of which shall constitute and original, but such counterparts
shall together constitute but one and the same instrument.
Section 3.04. PRESERVATION OF RIGHTS. Except as expressly provided herein,
nothing contained in this Agreement shall in any way affect the obligations or
rights of the Issuer, the Trustee, or any Holder under the Indenture and related
documents.
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Section 3.05. SEVERABILITY. In the event any provision 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 3.06. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the Prior Trustee, the Successor Trustee, the Issuer
and their respective successors and assigns.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
Section 4.01. REPRESENTATIONS AND WARRANTIES OF THE PRIOR TRUSTEE.
a. The Prior Trustee is a national banking association duly organized and
existing under the laws of the United States, is authorized to conduct
a general banking business with trust powers and is subject to the
supervision of the Comptroller of the Currency of the United States as
provided in the National Bank Act.
b. The Prior Trustee has the corporate power and authority to enter into
this Agreement. Upon execution and delivery, this Agreement shall
constitute a valid and binding obligation of the Prior Trustee.
c. The Prior Trustee is a duly appointed, authorized and acting trustee,
collateral trustee and/or paying agent for the Notes. Such appointment
has been administered by the Prior Trustee consistent with the
authority granted to it by the Indenture and by applicable law.
d. The Prior Trustee retains continued responsibility for its actions or
omissions during its term as the Trustee under the Indenture.
e. The Prior Trustee represents that $65,000,000 in principal amount of
the Notes is currently issued and outstanding.
f. The Prior Trustee represents that interest payments on the Notes have
been made through December 1, 2001.
g. There is no action, suit or proceeding pending or, to the best of the
knowledge of the Prior Trustee, threatened against the Prior Trustee
before any court or government authority arising out of any action or
omission by the Prior Trustee as the Trustee under the Indenture.
Section 4.02. REPRESENTATIONS AND WARRANTIES OF THE SUCCESSOR TRUSTEE.
a. The Successor Trustee is a banking corporation and trust company duly
organized and existing under the laws of the State of New York with
trust powers and is subject to the supervision of the Federal Reserve
Bank of New York and the New York State Banking Department.
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b. The Successor Trustee has the corporate power and authority to enter
into this Agreement. Upon execution and delivery, this Agreement will
constitute a valid and binding obligation of the Successor Trustee.
c. The Successor Trustee is qualified and eligible to serve as Trustee
and Collateral Trustee under the TIA and in accordance with provisions
of the Indenture, including but not limited to Section 7.10 of the
Indenture.
Section 4.03. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to the Successor Trustee that:
a. It is duly organized and validly existing;
b. It has not entered into any amendment to the Indenture except as
disclosed herein, and the Indenture is in full force and effect;
c. No event has occurred and is continuing which is, or after notice or
lapse of time would become, an Event of Default under the Indenture;
d. The execution and delivery of this Instrument and the consummation of
the transactions contemplated hereby do not and will not conflict
with, or result in a breach of, any of the terms or provisions of, or
constitute a default under, any contract, agreement, indenture or
other instrument (including, without limitation, its certificate of
incorporation and by-laws) to which it is a party or by which it or
its property is bound, or any judgment, decree or order of any court
or governmental agency or regulatory body or law, rule or regulation
applicable to it or its property;
e. No covenant or condition contained in the Indenture has been waived by
the Company or, to the best of the Company's knowledge by holders of
the percentage in aggregate principal amount of the Notes required to
effect any such waiver;
f. The Notes are validly issued securities of the Company;
g. Any conditions precedent relating to the appointment of HSBC Bank USA,
as successor Trustee, Registrar and Paying Agent under the Indenture
for which the Company is responsible have been complied with by the
Company; and
h. 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 omissions
by the Company under the Indenture.
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ARTICLE V.
NOTICES
Section 5.01. NOTICES. All notices, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered in person or by first class United States mail, as follows:
a. If to the Prior Trustee:
Bank One Trust Company, N.A.
Corporate Trust Xxxxxx
0000 Xxxxxxx Xxxxxxx, Xxxxx 0X
X.X. Xxx 000000
Xxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxx
b. If to the Successor Trustee:
HSBC Bank USA
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxx
c. If to the Issuer:
Hawk Corporation
000 Xxxxxx Xxxxxx
Xxxxx 00-0000
Xxxxxxxxx, XX 00000
Attention: Chief Executive Officer
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Intending to be legally bound, the parties hereto have executed this
Agreement by their duly authorized corporate officers as of the dates provided
below.
BANK ONE TRUST COMPANY, N.A.,
as the Prior Trustee
By: /s/ Xxxxxx X. Major
Title: Trust Officer
Date: 4/25/2002
HSBC BANK USA,
as the Successor Trustee
By: /s/ Xxxxxx X. Xxxxxx
Title: Vice President
Date: 4/18/2002
HAWK CORPORATION,
as the Issuer
By: /s/ Xxxxxx X. Xxxxxxxx
Title: Vice President - Finance
Date: 4/30/2002
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EXHIBIT A
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NOTICE TO THE HOLDERS OF HAWK CORPORATION'S
SERIES B 10 1/4% SENIOR NOTES DUE 2003
(THE "NOTES")
CUSIP NOS.: 000000XX0 AND 000000XX0
NOTE: THIS NOTICE CONTAINS IMPORTANT INFORMATION THAT IS OF INTEREST TO THE
REGISTERED AND BENEFICIAL OWNERS OF THE SUBJECT SECURITIES. IF APPLICABLE, ALL
DEPOSITORIES, CUSTODIANS, AND OTHER INTERMEDIARIES RECEIVING THIS NOTICE ARE
REQUESTED TO EXPEDITE RE-TRANSMITTAL TO BENEFICIAL OWNERS OF THE SECURITIES IN A
TIMELY MANNER.
HSBC Bank USA, as successor Trustee hereby notifies you of the resignation of
Bank One Trust Company, N.A. as Trustee under the Indenture, dated as of
November 27, 1996, as amended from time to time, pursuant to which your Notes
are issued and are outstanding.
Hawk Corporation has appointed HSBC Bank USA, whose Corporate Trust Office is
located at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, as successor Trustee
under the Indenture, which appointment has been accepted and became effective
By: HSBC BANK USA,
as Successor Trustee
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EXHIBIT B
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Hawk Corporation
000 Xxxxxx Xxxxxx
Xxxxx 00-0000
Xxxxxxxxx, XX 00000
Attention: Chief Executive Officer
Gentlemen:
NOTICE IS HEREBY GIVEN THAT, pursuant to Section 7.8 of the Indenture, dated as
of November 27, 1996, as amended from time to time (the "Indenture"), between
Hawk Corporation and Bank One Trust Company, N.A. ("Bank One"), Bank One hereby
resigns as the Trustee under the Indenture, such resignation to be effective
upon the appointment of a successor Trustee pursuant to Section 7.8 of the
Indenture and the acceptance of such appointment by such successor Trustee
pursuant to Section 7.8 of the Indenture.
Would you please acknowledge receipt of this notice by signing two copies and
returning them to us.
Bank One Trust Company, N.A.,
as Trustee
By /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, Director
Fiduciary Workout Services
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