Exhibit 4.23
INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE (this
"Instrument"), dated as of August 9, 2001, among RCN CORPORATION, a corporation
duly organized and existing under the laws of the State of Delaware, having its
principal office at 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 (the
"ISSUER"), THE CHASE MANHATTAN BANK, a corporation duly organized and existing
under the laws of the State of New York, having its corporate trust office at
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, as resigning Trustee
(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 corporate trust office at 00 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, as successor Trustee (the "SUCCESSOR TRUSTEE").
RECITALS
There are presently outstanding $223,969,000 aggregate
principal amount of the Issuer's 11% Senior Discount Notes due 2008 (the
"NOTES") under an Indenture, dated as of June 24, 1998, between the Issuer and
the Resigning Trustee (the "Indenture").
The Resigning Trustee wishes to resign as Trustee, Registrar,
Paying Agent and agent for service of notices and demands in connection with the
Notes (the "AGENT") under the Indenture; the Issuer wishes to appoint the
Successor Trustee to succeed the Resigning Trustee as Trustee, Registrar, Paying
Agent and Agent under the Indenture; and the Successor Trustee wishes to accept
appointment as Trustee, Registrar, Paying Agent and Agent under the Indenture.
NOW, THEREFORE, in consideration of the mutual covenants and
promises herein, the receipt and sufficiency of which are hereby acknowledged,
the Issuer, the Resigning Trustee and the Successor Trustee agree as follows:
ARTICLE ONE
THE RESIGNING TRUSTEE
Section 101. Pursuant to Section 6.10(b) of the Indenture, the
Resigning Trustee hereby notifies the Issuer that the Resigning Trustee is
hereby resigning as Trustee under the Indenture. The Issuer hereby waives the 20
Business Day written notice requirement set forth in Section 6.10(b) of the
Indenture.
Section 102. The Resigning Trustee hereby represents and
warrants to the Successor Trustee that:
(a) It is a corporation duly and validly organized
and existing pursuant to the laws of the State of New York.
(b) No covenant or condition contained in the
Indenture has been waived by the Resigning Trustee.
(c) 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.
(d) This Instrument has been duly authorized,
executed and delivered on behalf of the Resigning Trustee.
Section 103. The Resigning Trustee hereby assigns, transfers,
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, trusts and duties 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,
trusts and duties hereby assigned, transferred, delivered and confirmed to the
Successor Trustee.
Section 104. The Resigning Trustee hereby resigns as
Registrar, Paying Agent and Agent under the Indenture.
Section 105. As of or promptly after the effective date
hereof, the Resigning Trustee shall deliver to the Successor Trustee the items
listed on Exhibit A annexed hereto, to the extent these items are in the
possession or control of the Resigning Trustee.
ARTICLE TWO
THE ISSUER
Section 201. The Issuer hereby certifies that annexed hereto
marked Exhibit B is a copy of resolutions duly adopted by the Board of Directors
of the Issuer, which resolutions are in full force and effect on the date
hereof, authorizing certain officers of the Issuer to: (a) accept the Resigning
Trustee's resignation as Trustee, Registrar, Paying Agent and Agent under the
Indenture; (b) appoint the Successor Trustee as Trustee, Registrar, Paying Agent
and Agent 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, Registrar, Paying Agent and Agent under the
Indenture.
Section 202. The Issuer hereby accepts the resignation of the
Resigning Trustee as Trustee, Registrar, Paying Agent and Agent under the
Indenture. Pursuant to Section 6.10(e) of the Indenture, the Issuer hereby
appoints the Successor Trustee as Trustee under the Indenture and confirms to
the Successor Trustee 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. The Issuer 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, trusts and duties hereby assigned,
transferred, delivered and confirmed to the Successor Trustee.
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Section 203. The Issuer hereby represents and warrants to the
Successor Trustee that:
(a) It is a corporation duly and validly organized
and existing pursuant to the laws of the State of Delaware.
(b) The Indenture was validly and lawfully executed
and delivered by the Issuer, has not been supplemented,
amended or modified, and is in full force and effect.
(c) The Notes are validly issued securities of the
Issuer.
(d) No event has occurred and is continuing which is,
or after notice or lapse of time would become, an Event of
Default under Section 5.01 of the Indenture.
(e) No covenant or condition contained in the
Indenture has been waived by the Issuer or by the Holders of
the percentage in aggregate principal amount of the Notes
required to effect any such waiver.
(f) There is no action, suit or proceeding pending
or, to the best of the Issuer's knowledge, threatened against
the Issuer before any court or any governmental authority
arising out of any action or omission by the Issuer under the
Indenture.
(g) This Instrument has been duly authorized,
executed and delivered on behalf of the Issuer.
(h) All conditions precedent relating to the
appointment of HSBC Bank USA as successor Trustee, Registrar,
Paying Agent and Agent under the Indenture and which are
within the control of the Issuer have been complied with by
the Issuer.
Section 204. The Issuer hereby appoints the Successor Trustee
as Registrar, Paying Agent and Agent under the Indenture.
ARTICLE THREE
THE SUCCESSOR TRUSTEE
Section 301. The Successor Trustee hereby represents and
warrants to the Resigning Trustee and to the Issuer that:
(a) It is a banking corporation and trust company
duly and validly organized and existing pursuant to the laws
of the State of New York.
(b) It is qualified and eligible under Section 6.09
of the Indenture to act as Trustee under the Indenture.
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(c) This Instrument has been duly authorized,
executed and delivered on behalf of the Successor Trustee and
constitutes its valid and binding obligation, enforceable in
accordance with its terms.
Section 302. Pursuant to Section 6.11 of the Indenture, the
Successor Trustee hereby accepts its appointment as 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 accepts its
appointment as Registrar, Paying Agent and Agent under the Indenture.
Section 304. Promptly after the execution and delivery of this
Instrument, the Successor Trustee, on behalf of the Issuer, shall cause a
notice, the form of which is annexed hereto marked Exhibit C, to be sent to each
Holder of the Notes, with a copy to the Issuer, in accordance with Sections 6.10
and 6.11 of the Indenture.
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. This Instrument and the resignation, appointment
and acceptance effected hereby shall be effective as of the close of business on
the date first above written; provided, that the resignation of the Resigning
Trustee and the appointment of the Successor Trustee as Registrar, Paying Agent
and Agent under the Indenture shall be effective 10 business days after the date
first above written.
Section 403. Notwithstanding the resignation of the Resigning
Trustee effected hereby, the Issuer shall remain obligated under Section 6.07 of
Indenture to compensate, reimburse and indemnify the Resigning Trustee in
connection with its prior trusteeship under the Indenture. The Issuer also
acknowledges and reaffirms its obligations to the Successor Trustee as set forth
in Section 6.07 of the Indenture, which obligations shall survive the execution
hereof.
Section 404. This Instrument shall be governed by and
construed in accordance with the laws of the jurisdiction which govern the
Indenture and its construction.
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 but one and the same instrument.
Section 406. All notices, whether faxed or mailed, will be
deemed received when sent pursuant to the following instructions:
TO THE RESIGNING TRUSTEE:
Xx. Xxxxx Xxxxx
Vice President
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Institutional Trust Services
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Tel.: (000) 000-0000
TO THE SUCCESSOR TRUSTEE:
Xx. Xxxx Xxxxxxxx
Vice President
Mailing Address:
Issuer Services
HSBC Bank USA
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Courier Deliveries:
Issuer Services
HSBC Bank USA
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Tel.: (000) 000-0000
TO THE ISSUER:
Xx. Xxxx X. Xxxxx
Executive Vice President, General Counsel
and Corporate Secretary
RCN Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Fax: (000) 000-0000
Tel.: (000) 000-0000
[REMAINDER OF PAGE INTENTIONALLY 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.
RCN CORPORATION
By: /s/: Xxxx X. Xxxxx
-------------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President, General
Counsel and Corporate Secretary
THE CHASE MANHATTAN BANK, as Resigning Trustee
By: /s/: J.R. Xxxxx
-------------------------------------------
Name: J.R. Xxxxx
Title: Vice President
HSBC BANK USA, as Successor Trustee
By: /s/: Xxxx Xxxxxxxx
-------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
EXHIBIT A
Documents to be delivered to the Successor Trustee by the Resigning Trustee:
1. Executed copy of the Indenture and all supplements thereto.
2. File of closing documents.
3. Copies of the most recent of each of the SEC reports delivered by the
Issuer pursuant to the Indenture.
4. A copy of the most recent Compliance Certificate delivered pursuant to
the Indenture.
5. Certified List of Holders as of the effective date of this Instrument,
certificate detail and all "stop transfers" and the reason for such
"stop transfers" (or, alternatively, if there are a substantial number
of registered holders, the computer tape reflecting the identity,
address, tax identification number and detailed holdings of each such
holder).
6. Copies of any official notices sent by the Trustee to all the holders
of the Notes pursuant to the terms of the Indenture during the past
twelve months and a copy of the most recent Trustee's Annual Report to
Holders.
7. Note debt service records.
8. Trust account statements for a one-year period preceding the date of
this Instrument.
9. All unissued Notes inventory or DTC FAST held global certificates.
10. The conversion file, if any conversions have occurred.
11. Such other documents as the Successor Trustee may reasonably require in
order to transfer the appointment to it.
EXHIBIT B
BOARD RESOLUTIONS
EXHIBIT C
Notice to Holders of RCN Corporation's (the "ISSUER") 11% Senior Discount Notes
due 2008 (the "NOTES"):
We hereby notify you of the resignation of The Chase Manhattan
Bank as Trustee under the Indenture, dated as of June 24, 1998 (the
"INDENTURE"), pursuant to which your Notes were issued and are outstanding.
The Issuer has appointed HSBC Bank USA, whose Corporate Trust
Office is located at 00 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
attention: Issuer Services (mailing address: 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, attention: Issuer Services), (000) 000-0000, as successor Trustee
under the Indenture, which appointment has been accepted and has become
effective.
HSBC BANK USA,
as successor Trustee
Dated: , 2001
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