EXHIBIT 4.1
THIS INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE, ("Instrument"),
dated to be effective as of April 14, 2000 (the "Effective Date"), is by and
among Pillowtex Corporation, a Texas corporation (the "Company"), Norwest Bank
Minnesota, National Association, a national banking association organized and
existing under the laws of the United States having its principal corporate
trust office in Minneapolis, Minnesota (the "Resigning Trustee") and U.S. Bank
National Association, a national banking association organized and existing
under the laws of the United States having its principal corporate trust office
in St. Paul, Minnesota (the "Successor Trustee"). Capitalized terms not
otherwise defined herein shall have the same meaning ascribed to such terms in
the Indenture (as defined below).
RECITALS
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WHEREAS, pursuant to an Indenture dated as of December 18, 1997 (as amended
or supplemented, the "Indenture") between the Company and the Resigning Trustee,
the Company issued its 9% Senior Subordinated Notes Due 2007 (Series A and
B)(the "Notes");
WHEREAS, the Company appointed the Resigning Trustee as the paying agent
(the "Paying Agent") and registrar (the "Registrar") under the Indenture;
WHEREAS, there is presently issued and outstanding $185,000,000 in
aggregate principal amount of the Notes;
WHEREAS, the Indenture provides that the Trustee may resign at any time and
be discharged from the trusts created by the Indenture by notifying the Company
in writing;
WHEREAS, the Indenture further provides that if the Trustee resigns, the
Company shall promptly appoint a successor Trustee;
WHEREAS, the Resigning Trustee desires to resign, and the Company desires
to appoint the Successor Trustee as Trustee, Paying Agent and Registrar to
succeed the Resigning Trustee in such capacities under the Indenture and the
documents executed in connection with or related to the Indenture (collectively,
as amended or supplemented, the "Documents"); and
WHEREAS, the Successor Trustee is willing to accept the appointment as
Trustee, Paying Agent and Registrar under the Indenture and the Documents.
NOW, THEREFORE, in consideration of the covenants set forth herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Acceptance of Resignation of Resigning Trustee and Appointment of
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Successor Trustee. The Company hereby accepts the resignation of the Resigning
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Trustee as Trustee, Paying Agent and Registrar under the Indenture and the
Documents. Pursuant to Section 7.08 of the Indenture, the Company hereby
appoints the Successor Trustee as Trustee, Paying Agent and Registrar under the
Indenture and the Documents, and vests and confirms to the Successor Trustee all
rights, powers, trusts, privileges, duties and obligations of the Trustee,
Paying Agent and Registrar under the Indenture and the Documents. The Company
and the Resigning Trustee shall execute and deliver such further instruments and
shall do such other things as the Successor Trustee may reasonably request to as
to more fully and certainly vest and confirm in the Successor Trustee all the
rights, powers, privileges, duties and obligations assigned, transferred,
delivered and confirmed hereunder.
2. Company Representations and Warranties. The Company hereby represents
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and warrants to the Successor Trustee that:
a. It is duly organized and validly existing;
b. The Indenture and the Documents have been amended or supplemented
pursuant to a Supplemental Indenture dated as of December 19, 1997 and a
Second Supplemental Indenture dated as of July 28, 1998;
c. No Event of Default and no default exists under the Indenture or any
of the Documents;
d. No covenant or condition contained in the Indenture or the Documents
has been waived by the Holders of a percentage in aggregate principal
amount of the Notes required by the Indenture to effect any such waiver;
e. The Notes are validly issued securities of the Company; and
f. The Company's execution and delivery of this Instrument 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 (i) contract, agreement,
indenture or other instrument (including, without limitation, the Company's
certificate of incorporation and by-laws) to which the Company is a party
or by which the Company or its property is bound, or (ii) any judgment,
decree or order of any court or governmental agency or regulatory body or
law, rule or regulation applicable to the Company or its property.
3. Resigning Trustee Representations and Warranties. The Resigning
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Trustee hereby represents and warrants to the Successor Trustee that:
a. It has not entered into any amendment or supplement to the Indenture
or any of the Documents except as noted herein, and the Indenture and the
Documents are in full force and effect;
b. No covenant or condition contained in the Indenture or the Documents
has been waived by the Resigning Trustee or, to the best of the knowledge
of the Resigning Trustee, by the holders of a percentage in aggregate
principal amount of the Notes required by the Indenture to effect any such
waiver;
c. There is no action, suit or proceeding pending or, to the best of the
knowledge of the Resigning Trustee threatened, against the Resigning
Trustee before any court or
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governmental authority arising out of any action or omission by the
Resigning Trustee as Trustee, Paying Agent or Registrar under the Indenture
or the Documents;
d. It has made, or promptly will make, available to the Successor Trustee
originals, if available, or copies in its possession, of all Documents
relating to the trusts created by the Indenture (the "Trusts") and all
information in the possession of its corporate trust administration
department relating to the administration and status of the Trusts and
shall do such other things as the Successor Trustee may reasonably request
to more fully vest and confirm in the Successor Trustee all the rights,
powers, trusts, privileges, duties and obligations assigned and transferred
hereby to the Successor Trustee;
e. To the best of its knowledge, it has lawfully discharged its duties as
Trustee, Paying Agent and Registrar under the Indenture and the Documents;
and
f. There is presently issued and outstanding $185,000,000 in aggregate
principal amount of the Notes and interest has been paid through December
15, 1999.
4. Successor Trustee Representation and Warranty. The Successor Trustee
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represents and warrants to the Resigning Trustee and the Company that:
a. it is qualified and eligible to serve as Trustee, Paying Agent and
Registrar under the Indenture, the Documents and the Trust Indenture Act of
1939, as amended (the "Act").
5. Acceptance by Successor Trustee. The Successor Trustee hereby accepts
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its appointment, as of the Effective Date, as Successor Trustee, Paying Agent
and Registrar under the Indenture and the Documents, and assumes, as of the
Effective Date, all rights, powers, trusts, privileges, duties and obligations
of the Trustee, Paying Agent and Registrar thereunder, subject to the terms and
conditions therein. Promptly after the execution and delivery of this
Instrument, the Successor Trustee shall cause a notice, substantially in the
form of Exhibit A hereto, to be sent to each holder of the Notes in accordance
with Section 7.08 of the Indenture.
6. Assignment by Resigning Trustee. The Resigning Trustee hereby
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confirms, assigns, transfers, delivers and conveys, as of the Effective Date, to
the Successor Trustee, as successor Trustee, Paying Agent and Registrar under
the Indenture and the Documents, upon the Trusts expressed in the Indenture, all
rights, powers, trusts, privileges, duties and obligations, which the Resigning
Trustee, as Trustee, Paying Agent and Registrar now holds under and by virtue of
the Indenture and the Documents, and shall pay over to the Successor Trustee,
any and all property and moneys held by the Resigning Trustee under and by
virtue of the Indenture and the Documents, subject to the lien provided by
Section 7.07 of the Indenture, which lien the Resigning Trustee expressly
reserves to the fullest extent necessary to secure the Company's obligations
under said Section to the Resigning Trustee, which lien shall also secure the
Company's obligations under said Section to the Successor Trustee.
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7. Indemnification by Resigning Trustee. The Resigning Trustee agrees to
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pay or indemnify, as applicable, the Successor Trustee and save the Successor
Trustee harmless from and against any and all costs, claims, liabilities, losses
or damages whatsoever (including the reasonable fees, expenses and disbursements
of the Successor Trustee's legal counsel and other advisors) arising out of the
actual, alleged or adjudicated actions or omissions of the Resigning Trustee
that the Successor Trustee may suffer or incur as a result of the Successor
Trustee accepting this appointment and acting as successor Trustee, Paying Agent
and Registrar under the Indenture and the Documents. The Successor Trustee will
furnish to the Resigning Trustee, promptly upon receipt, all documents with
respect to any action the outcome of which would make the indemnity provided for
in this paragraph operative. The Successor Trustee shall promptly notify the
Resigning Trustee in writing (an, in any event, within no later than 10 days) of
any claim for which it may seek indemnity. The Resigning Trustee shall have the
right to elect to provide its own defense to any such claim and the Successor
Trustee shall cooperate fully in any such defense. In the event the Resigning
Trustee elects to provide its own defense, the Resigning Trustee shall not pay
for separate counsel to the Successor Trustee. The Resigning Trustee shall not
be obligated to pay for any settlement absent its consent.
8. Resigning Trustee's Lien and Payment of Fees, Expenses and
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Indemnification. The Resigning Trustee hereby appoints the Successor Trustee and
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the Successor Trustee hereby acknowledges its appointment, as the Resigning
Trustee's agent with respect to the assertion, perfection and enforcement of the
Resigning Trustee's lien provided for in Section 7.07 of the Indenture to secure
the satisfaction of the Company's indemnification obligations to the Resigning
Trustee and its payment of the Resigning Trustee's past, current and future fees
and expenses as provided for in said Section 7.07 (said indemnification
obligations, fees and expenses, collectively, the "Resigning Trustee's Claims").
The Successor Trustee further acknowledges that the Resigning Trustee's Claims
are and will be due under Section 7.07 of the Indenture and thus, are included
within the "First" priority of payment provided for under Section 6.10 of the
Indenture.
9. Additional Documentation. The Company and the Resigning Trustee, for
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the purposes of more fully and certainly vesting in and confirming to the
Successor Trustee, as successor Trustee, Paying Agent, and Registrar under the
Indenture and the Documents, said rights, powers, trusts, privileges, duties and
obligations agrees, upon reasonable request of the Successor Trustee, to
execute, acknowledge and deliver such further instruments of conveyance and
further assurance and to do such other things as may reasonably be required for
more fully and certainly vesting and confirming to the Successor Trustee all
rights, powers, trusts, privileges, duties and obligations which the Resigning
Trustee now holds under and by virtue of the Indenture and the Documents.
10. Effective Date. This Instrument and the resignation, appointment and
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acceptance effected hereunder shall be effective as of the close of business on
the Effective Date.
11. Governing Law. This Instrument shall be governed by and construed in
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accordance with the laws of the State of New York.
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12. Counterparts. 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 one and the same instrument.
13. Survival of Certain Obligations of the Company. Notwithstanding the
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the resignation of the Resigning Trustee, as Trustee under the Indenture, the
Company shall remain obligated under the Indenture to compensate, reimburse and
indemnify the Resigning Trustee in connection with its trusteeship under the
Indenture, and nothing contained in this Instrument shall in any way abrogate
the obligations of the Company to the Resigning Trustee under the Indenture and
the Documents or any lien created thereunder in favor of the Resigning Trustee.
14. Notices. All notices, whether faxed or mailed will be deemed received
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when sent pursuant to the following instructions:
TO THE RESIGNING TRUSTEE:
Julie J. Becker, Vice President
Norwest Bank Minnesota, National Association
Corporate Trust Services
Sixth Street and Marquette Avenue
Mac No. N9303-120
Minneapolis, Minnesota 55479
TELEPHONE: (612) 316-4772
TELECOPIER: (612) 667-9825
TO THE SUCCESSOR TRUSTEE:
Jeffrey C. Tupper, Vice President
U.S. Bank National Association
M.S. SPFT0210
180 East Fifth Street
St. Paul, Minnesota 55101
TELEPHONE: (651) 244-0743
TELECOPIER: (651) 244-0089
TO THE COMPANY:
Jamie Vasquez, Treasurer
Pillowtex Corporation
4111 Mint Way
Dallas, Texas 75237
TELEPHONE: (214) 333-3325
TELECOPIER: (214) 467-0823
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IN WITNESS WHEREOF, the parties have executed this Instrument to be effective as
of the day and year first above written.
Dated: April 13, 2000 PILLOWTEX CORPORATION
By: John F. Sterling
Its: Vice President
Dated: April 14, 2000 NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By: Julie J. Becker
Its: Vice President
Dated: April 12, 2000 U.S. BANK NATIONAL ASSOCIATION
By: Lori-Anne Rosenburg
Its: Assistant Vice President
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EXHIBIT A
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NOTICE TO HOLDERS OF
PILLOWTEX CORPORATION
9% SENIOR SUBORDINATED NOTES DUE 2007
(SERIES A AND B)
We hereby notify you of the resignation of Norwest Bank Minnesota, National
Association, as Trustee under the Indenture dated as of December 18, 1997 (as
amended or supplemented, the "Indenture"), pursuant to which the above-described
notes were issued and are outstanding.
Pillowtex Corporation has appointed US Bank National Association, whose
corporate Trust Office is located at 180 East Fifth Street, M.S. SPFT0210, St.
Paul, Minnesota 55101, as Successor Trustee under the Indenture, which
appointment has been accepted and has become effective.
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