Exhibit 4.6
RESIGNATION, APPOINTMENT AND ACCEPTANCE AGREEMENT
THIS AGREEMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE (this "Agreement")
dated as of January 19, 2000, by and among Bank One, N.A., fka Bank One,
Columbus, N.A., (the "Prior Trustee"), U.S. Bank National Association, a
national banking association duly organized under the laws of the United States
of America (the "Successor"), and Pillowtex Corporation (the "Issuer"). This
instrument shall be governed by and construed in accordance with the laws of the
State of New York.
WHEREAS, the Issuer issued its $125,000,000 10% Senior Subordinated Notes due
2006 of which $125,000,000 are outstanding (the "Notes"), under an Indenture
dated as of November 12, 1996, as supplemented by a Supplemental Indenture dated
as of December 19, 1997 and a Second Supplemental Indenture dated as of July 28,
1998 (collectively, the "Indenture"), between the Issuer and the Prior Trustee;
and
WHEREAS, the Successor following the execution and delivery of this
instrument, 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; and
WHEREAS, the Indenture further 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 Successor as successor Trustee under the Indenture, and Successor
desires to serve as successor Trustee subject to the terms and conditions of the
Indenture and this Agreement; and
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 10 1 Resignation of Prior Trustee. Prior Trustee hereby resigns as
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 Trustee under the Indenture, the Issuer shall remain obligated to
indemnify the Trustee in accordance with Section 7.07 of the Indenture.
Section 1.02 Notice of Resignation to Issuer. The Prior Trustee has given
written notice of its desire to resign to the Issuer pursuant to the Indenture,
attached as Exhibit B.
- 1 -
ARTICLE II
APPOINTMENT OF SUCCESSOR TRUSTEE
Section 2.01 Appointment. The Issuer hereby appoints Successor to serve as
successor Trustee, Registrar and Paying Agent 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 Prior
Trustee receives a fully executed counterpart of this Agreement (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 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. Successor is qualified to serve as successor
Trustee and hereby accepts the appointment by the Issuer and agrees to serve as
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.
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 Successor, effective at the
opening of business on the Effective Date.
Section 2.04 Notice to Holders. Successor agrees to notify all registered
Holders of its appointment as successor Trustee in accordance with the terms of
Section 7.08 of the Indenture and in substantially the same form and content as
Exhibit A.
Section 2.O5 Assignment of Powers and Property. Prior Trustee hereby
confirms, assigns, transfers and sets over to Successor, its successors and
assigns in trust under the Indenture, all property, rights, powers, duties,
trusts, immunities and obligations of Prior Trustee as Trustee.
Section 2.06 Further Assurances. Prior Trustee hereby agrees, upon
reasonable request of Successor, 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 Successor all the property, rights, powers, duties, trusts,
immunities and obligations of Prior Trustee as Trustee under the Indenture arid
related documents.
Section 2.07 Conversion. Prior Trustee shall transfer the following items to
Successor 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
- 2 -
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 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 Successor 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 Successor reasonable
compensation for the services it provides as successor Trustee and in such other
capacities as to which it may be appointed with respect to the Notes. The
Issuer and Successor may from time to time enter into agreements specifying the
amount, or containing provisions for determining the amount, of compensation
payable to Successor.
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.
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 Prior Trustee, Successor and their respective
successors and assigns.
- 3 -
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01 Representations and Warranties of the Prior Trnstee.
a. 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. 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 Prior Trustee.
c. Prior Trustee is a duly appointed, authorized and acting trustee and/or
paying agent for the Notes. To the best of its knowledge, such appointment has
been administered by Prior Trustee consistent with the authority granted to it
by the governing instrument and by applicable law.
d. Prior Trustee represents and states that to the best of its knowledge,
there is not an Event of Default under the Indenture in existence as of the
Effective Date,
e. Prior Trustee retains continued responsibility for its actions or
omissions during its term as Trustee under the Indenture.
Section 4.03 Representations and Warranties of Successor.
a. Successor is a national banking association duly organized and existing of
the United States with trust powers and is subject to the the Comptroller of the
Currency of the United States as National Banking Act,
b. Successor 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 Successor.
c. Successor is qualified and eligible to serve as Trustee, in accordance
with provisions 0(Pounds) the Indenture, including but not limited to, Section
7.10 of the Indenture.
ARTICLE V
NOTICES
Section 5.0l 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:
- 4 -
a. If to Prior Trustee;
Bank One, N.A.
100 East Broad Street, 8th Floor
Columbus, OH 43271-0181
Attention: Joseph C Ludes
b. If to Successor;
U.S. Bank National Association
180 East Fifth Street
St. Paul, MN 55101
Attention: Corporate Trust Administration
c. If to Issuer;
Pillowtex Corporation
4111 Mint Way
Dallas, TX 75237
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, N.A.,
as Prior Trustee
By: Jospeh C. Ludes
Title: Vice President
Date:
U.S. BANK NATIONAL ASSOCIATION,
as Successor Trustee
By: Lou-Anne Rosenberg
Title: Assistant Vice President
Date:
PILLOWTEX CORPORATION,
as Issuer
By: Jaime Vasquez
Title: Vice President and Treasurer
Date: 1/19/00
Intending to be legally bound, the parties hereto have executed this
Agreement by their duly authorized corporate officers as of the
- 5 -
dates provided below.
BANK ONE, N-A.,
as Prior Trustee
By: Joseph C. Ludes
Title: Vice President
Date:
U.S BANK NATIONAL ASSOCIATION,
as Successor Trustee
By: Lori-Anne Rosenberg
Title: Assistant Vice President
Date:
PILLOWTEX CORPORATION,
as Issuer
By:
Title:
Date:
- 6 -
EXHIBIT A
Notice to Holders of
PILLOWTEX CORPORATION
$125,000,000 10% Senior Subordinated Notes due 2006
CUSIP 721501 AB O
U.S. Bank National Association hereby notifies you of the resignation of Bank
One, as Trustee under the Indenture, dated as of November 12, 1996, pursuant to
which your Notes were issued and are outstanding.
Pillowtex Corporation has appointed U.S. Bank National Association, whose
Corporate Trust Office is located at 180 East Fifth Street, St. Paul, Minnesota
55101, as Successor Trustee under the Indenture, which appointment has been
accepted and became effective as of January 19, 2000.
Dated as of this date January 19, 2000
By: U.S. Bank National Association,
as Successor Trustee
- 7 -
EXHIBIT B
Attention: Secretary
Gentlemen:
NOTICE IS HEREBY GIVEN THAT, pursuant to Section 7.08 of the Indenture dated as
of November 12, 1996 (the "Indenture") between Pillowtex Corporation (the
"Company") and Bank One, N.A ("BANK ONE") as Trustee, BANK ONE hereby resigns as
Trustee under the Indenture, such resignation to be effective upon the
appointment, pursuant to Section 7.08 of the Indenture, of a successor Trustee,
and the acceptance of such appointment by such successor Trustee, pursuant to
Section 7.O8 of the Indenture.
Would yon please acknowledge receipt of this notice by signing two copies and
returning them to us.
Very truly yours,
By
Vice President
- 8 -