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EXHIBIT 4.3
TRUSTEESHIP TRANSFER AGREEMENT
THIS TRUSTEESHIP TRANSFER AGREEMENT ("Agreement") dated as of
March 1, 1996 made and entered into by and among XXX X. XXXXXX, INC. a
Pennsylvania Corporation (the "Company"), PNC BANK, NATIONAL ASSOCIATION
("PNC"), a national banking association, and FIRST TRUST OF NEW YORK, N.A.
("First Trust"), a national banking association;
W I T N E S S E T H
WHEREAS, the Company and Mellon Bank, N.A. are parties to an
Indenture dated as of April 15, 1987 securing 7% Convertible Subordinated
Debentures, due April 15, 2002, (the "Indenture"); and
WHEREAS, Mellon resigned as Trustee as of June 10, 1991 and
Security Pacific National Trust Company ("Pacific") accepted appointment as
successor Trustee; and
WHEREAS, Pacific merged into Bank America National Trust
Company ("America") whose Corporate Trust Division was purchased by First Trust
which is now the successor Trustee; and
WHEREAS, First Trust has been asked to resign as successor Trustee; and
WHEREAS, pursuant to Section 8.08 of the Indenture the Company
may appoint a successor Trustee, subject to the condition that the holders may
appoint a different successor Trustee within one year of the appointment of the
successor Trustee by The Company; and
WHEREAS, the Company, by resolution of its board of directors,
has determined to appoint PNC as successor Trustee, pursuant to the provisions
of Section 8.08 of the Indenture, and PNC desires to accept such appointment as
successor Trustee:
NOW THEREFORE, in consideration of the mutual covenants,
undertaking and promises hereinafter, set forth and other good and valuable
consideration the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
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1. Appointment of PNC as Successor Trustee/Acceptance by
PNC. The Company, in the exercise of the authority vested in it pursuant to
Section 8.08 of the Indenture, as of the date hereof, hereby appoints PNC as
successor Trustee, with all estates, properties, rights, powers, trusts,
duties, and obligations under the Indenture. PNC hereby represents that it is
qualified and eligible under the provisions of Section 8.10 of the Indenture to
be appointed successor Trustee and hereby accepts its appointment as successor
Trustee effective as of the date hereof.
2. Assignment and Assumption. First Trust hereby
grants, gives, bargains, sells, remises, releases, conveys, confirms, assigns,
transfers and sets over to PNC as successor Trustee and its successors and
assigns without recourse all rights, powers and trusts of First Trust under the
Indenture reserving only its rights to indemnification and compensation
relating to the period it served as Trustee and in any other capacities,
whether with respect to claims not yet asserted or otherwise, and First Trust
does hereby, assign and deliver to PNC as such successor Trustee any and all
property held by First Trust as Trustee, such property set forth on Exhibit "A"
of this Agreement constituting all property held by First Trust as Trustee
under the Indenture; and PNC hereby assumes the estates, properties, rights,
powers, trusts, duties, and obligations of the Trustee under the Indenture
subject to all items and provisions therein contained.
3. Orderly Transfer of Trusteeship's Books, Records and
Information. First Trust agrees that for thirty (30) days it shall diligently
provide whatever reasonable assistance is required for the orderly transfer of
the trusteeship under the Indenture to PNC including the forwarding of mail and
tendering to PNC of any and all documents or records relating to the Indenture
including the Bonds that are in the possession of First Trust, a list of all
known holders of the Bonds ("Bondholders") and such other documentation or
information as may be reasonably requested by PNC regarding the Indenture
Documents (as defined below), the Bonds or the Bondholders, all at the
Company's expense.
4. Representations. First Trust hereby represents and
warrants to PNC and the Company that, to its best knowledge, upon the execution
and delivery of this Agreement: (i) it has delivered to PNC the closing bible
for the Original Indenture and including documents indicated in such binder as
being separately delivered in its possession, and all modifications,
alterations, amendments and supplements thereto, and copies of all
correspondence and account statements and all other documents, uniform
commercial code financing statements, notices and instruments relating to such
documents and to the Indenture in its possession (the "Indenture Documents");
(ii) all the property to be assigned to PNC pursuant to Section 2 of this
Agreement consists of the property set forth on Exhibit A of this Agreement;
and (iii) subject to Section 2 it has been paid in full for all fees and
expenses due to it for its trustee services under the Indenture through the
date of this Agreement. First Trust represents that, to the best of its
knowledge, all
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representations and statements made by it in this Agreement with respect to the
Indenture, the Indenture Documents and all other documents relating to the
removal of First Trust as Trustee and to the appointment of PNC as successor
Trustee were at the time of their making, and are as of the date of this
Agreement true and correct in all material respects and did not and do not
contain an untrue statement of material fact or fail to state a fact necessary
in order to make the representations made therein not misleading in light of
the circumstances under which they were or are being made.
5. Claims Against First Trust. PNC and the Company
agree to notify First Trust within thirty (30) days of the time that either PNC
or the Company is notified of any claim which alleged acts or omissions, of
First Trust or America, as Trustee under the Indenture, or any misstatement or
alleged misstatement of fact contained herein (each, a "Claim"). First Trust
agrees that upon receiving written communication from PNC or the Company as to
any Claim made against First Trust or America, First Trust shall review such
claim in light of its obligations under the Indenture. If First Trust shall
take no action upon such Claim within sixty (60) days of receipt, PNC may
proceed to take such action as it deems appropriate.
6. Notices. All notices, regards, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when placed in the hands of a carrier for delivery, charges prepaid:
(a) If to the Company:
Xxx X. Xxxxxx, Inc.
0 Xxxxxx Xxx
Xxxx Xxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxx, Assistant Treasurer
(b) If to PNC:
PNC Bank, National Association
Corporate Trust Department
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxxx, Xx.
Fax: (000) 000-0000
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(c) If to First Trust:
First Trust of New York, N.A.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx, Vice President
or to such other address or addresses as PNC or First Trust or Company may
communicate in writing to the other.
7. Entire Agreement. This Agreement and documents
referred to herein contain all terms and conditions agreed upon by the parties
hereto, and no other agreements, oral or otherwise, regarding the subject
matter hereof shall be deemed to exist or bind the parties hereto unless in
writing and executed by the Company, PNC and First Trust.
8. Benefit of the Agreement. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
successors and assigns.
9. Governing Law and Severability. This Agreement shall
be governed by and construed in accordance with the laws of the Commonwealth of
Pennsylvania. The invalidity or unenforceability of any provision of this
Agreement shall not affect or impair the validity or enforceability of any
other provision of this Agreement.
10. Execution and Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall be an original and
all of which shall constitute but one and the same instrument.
11, Headings. Section headings used in this Agreement
are for convenience of reference only and are not intended to be a part of the
provisions of this Agreement nor to control or affect the meanings,
construction or effect of the same.
12. Definition of Terms. For all purposes of this
Agreement, except as otherwise herein expressly provided or unless the context
otherwise requires, the terms and expressions used in this agreement shall have
the same meaning as the corresponding terms and expressions used in the Trust
Agreement.
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13. Counterparts. This Agreement 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 Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first written above.
XXX X. XXXXXX, INC.
By: /s/ XXXXX XXXXX
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Title: Assistant Secretary
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PNC BANK, NATIONAL ASSOCIATION
By: /s/ XXXXXX XXXXXXXXXX
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Title: Assistant Vice President
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FIRST TRUST OF NEW YORK, N.A.
By: /s/ XXXXXXXX XXXXXX
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Title: Assistant Vice President
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EXHIBIT A
BOND FUND -0-
