Exhibit 4.8
AGREEMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE
THIS AGREEMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE (this
"Agreement"), dated as of June 27, 2005 by and among Salton, Inc., a corporation
duly organized and existing under the laws of the State of Delaware and having a
place of business at 0000 Xxxxx Xxxxx, Xxxx Xxxxxx, Xxxxxxxx 00000 (the
"Company"), Xxxxx Fargo Bank, National Association, successor by merger to Xxxxx
Fargo Bank Minnesota, National Association, formerly known as Norwest Bank
Minnesota, National Association, a national banking association duly organized
and existing under the laws of the United States of America and having its
principal corporate trust office at Sixth Street and Marquette Avenue, Mac
N9303-120, Xxxxxxxxxxx, Xxxxxxxxx 00000 (the "Resigning Trustee") and SunTrust
Bank, a Georgia banking association duly organized and existing under the laws
of the State of Georgia and having its principal corporate trust office at 000
Xxxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxx, Xxxxxxx 00000 (the "Successor Trustee").
RECITALS:
WHEREAS, there are presently outstanding under an Indenture dated as of
December 16, 1998, among the Company, certain Guarantors party thereto and the
Resigning Trustee (the "Indenture"), $125,000,000 in aggregate principal amount
of the Company's 10- 3/4% Senior Subordinated Notes due 2005 (the "Notes"); and
WHEREAS, the Resigning Trustee wishes to resign as Trustee, the office
or agency where the Notes may be surrendered for registration of transfer and
for exchange (the "Registrar"), the office or agency where notices and demands
to or upon the Company in respect of the Notes or the Indenture may be served
(the "Agent") and the office or agency where the Notes may be presented or
surrendered for payment (the Paying Agent") under the Indenture; the Company
wishes to appoint the Successor Trustee to succeed the Resigning Trustee as
Trustee, Registrar, Agent and Paying Agent under the Indenture; and the
Successor Trustee wishes to accept the appointment as Trustee, Registrar, Agent
and Paying 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
Company, the Resigning Trustee and the Successor Trustee hereby consent and
agree as follows:
ARTICLE ONE
THE RESIGNING TRUSTEE
SECTION 101. Pursuant to Section 7.8 of the Indenture, the Resigning
Trustee hereby notifies the Company that the Resigning Trustee is resigning as
Trustee under the Indenture effective as of the date hereof.
SECTION 102. The Resigning Trustee hereby represents and warrants to
the Successor Trustee that:
(a) No covenant or condition contained in the Indenture has been
waived by the Resigning Trustee, or to the best of the
knowledge of the Resigning Trustee, by the holders of the
percentage in aggregate principal amount of the Notes required
by the Indenture to effect any such waiver.
(b) There is no action, suit or proceeding pending or, to the best
of the knowledge of its Responsible Officers, threatened
against the Resigning Trustee before any court or any
governmental authority arising out of any action or omission
by the Resigning Trustee as Trustee under the Indenture.
(c) This Agreement has been duly authorized, executed and
delivered on behalf of the Resigning Trustee.
(d) $125,000,000 in aggregate principal amount of the Notes is
outstanding.
(e) Interest on the Notes has been paid through December 15, 2004.
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, and all the rights,
powers, trusts, duties and obligations of the Resigning Trustee under the
Indenture and all properties and monies held by such Resigning Trustee under the
Indenture with like effect as if the Successor Trustee was originally named
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, duties and obligations hereby
assigned, transferred, delivered and confirmed to the Successor Trustee as
Trustee.
SECTION 104. The Resigning Trustee hereby resigns as Registrar, Agent
and Paying Agent under the Indenture.
2
SECTION 105. The Resigning Trustee shall deliver to the Successor
Trustee on, or immediately after, the effective date hereof, all the documents
listed on Exhibit A hereto.
ARTICLE TWO
THE COMPANY
SECTION 201. The Company hereby certifies that the Company is, and the
officer of the Company who has executed this Agreement is, duly authorized to,
among other things: (a) accept the Resigning Trustee's resignation as Trustee,
Registrar, Agent and Paying Agent under the Indenture; (b) appoint the Successor
Trustee as Trustee, Registrar, Agent and Paying 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, Agent and Paying Agent under the Indenture.
SECTION 202. The Company hereby accepts the resignation of the
Resigning Trustee as Trustee, Registrar, Agent and Paying Agent under the
Indenture.
SECTION 203. Pursuant to Section 7.8 of the Indenture, the Company
hereby appoints the Successor Trustee as Trustee under the Indenture and
confirms to the Successor Trustee all the rights, powers, trusts, duties and
obligations of the Resigning Trustee under the Indenture and with respect to all
properties and monies held or to be held under the Indenture, with like effect
as if the Successor Trustee was originally named as Trustee under the Indenture.
The Company 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, duties and obligations hereby assigned, transferred, delivered and
confirmed to the Successor Trustee.
SECTION 204. The Company hereby represents and warrants to the
Resigning Trustee and the Successor Trustee that:
(a) The Company 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 Company and the Notes were validly issued by the
Company.
(c) This Agreement has been duly authorized, executed and
delivered on behalf of the Company.
(d) All conditions precedent relating to the appointment of the
Successor Trustee as Trustee under the Indenture have been
complied with by the Company.
(e) 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, other than the failure of the Company to
make the interest payment due on June 15, 2005 in accordance
with Section 4.1 of the Indenture.
3
ARTICLE THREE
THE SUCCESSOR TRUSTEE
SECTION 301. The Successor Trustee hereby represents and warrants to
the Resigning Trustee and to the Company that this Agreement has been duly
authorized, executed and delivered on behalf of the Successor Trustee. The
Successor Trustee further represents and warrants to the Company that it is
qualified and eligible to serve as Trustee under Section 7.10 of the Indenture
and the Trust Indenture Act of 1939, as amended, as in effect on the date
hereof.
SECTION 302. Pursuant to Section 7.8 of the Indenture, the Successor
Trustee hereby accepts its appointment as Trustee under the Indenture and
accepts the rights, powers, trusts, duties and obligations of the Resigning
Trustee as Trustee under the Indenture, upon the terms and conditions set forth
therein, with like effect as if originally named as Trustee under the Indenture.
SECTION 303. The Successor Trustee hereby accepts its appointment as
Registrar, Agent and Paying Agent under the Indenture.
SECTION 304. References in the Indenture to the office of the Trustee
or other similar terms shall be deemed to refer to the Corporate Trust Office of
the Successor Trustee at 000 Xxxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxx, Xxxxxxx 00000 or
any other office of the Successor Trustee at which, at any particular time, its
corporate trust business shall be administered.
SECTION 305. Promptly after the execution and delivery of this
Agreement, the Successor Trustee shall cause a notice, substantially in the form
of Exhibit B annexed hereto, to be provided in accordance with the provisions of
Section 7.8 of the Indenture.
ARTICLE FOUR
MISCELLANEOUS
SECTION 401. Except as otherwise expressly provided herein or unless
the context otherwise requires, all capitalized terms used herein which are
defined in the Indenture shall have the meaning assigned to them in the
Indenture.
SECTION 402. This Agreement and the resignation, appointment and
acceptance effected hereby shall be effective as of the close of business on the
date first above written, upon the execution and delivery hereof by each of the
parties hereto; provided that the resignation of the Resigning Trustee as
Registrar, Agent and Paying Agent under the Indenture, and the appointment of
the Successor Trustee in such capacities, shall be effective as of close of
business on July 15, 2005.
SECTION 403. Notwithstanding the resignation of the Resigning Trustee
effected hereby, the Company shall remain obligated under Section 7.7 of the
Indenture to compensate, reimburse and indemnify the Resigning Trustee in
connection with its prior trusteeship under the Indenture, which rights and
obligations shall survive the execution hereof. The Successor
4
Trustee shall also be entitled to compensation, reimbursement and
indemnification as set forth in Section 7.7 of the Indenture.
SECTION 404. The parties agree that acts and omissions of the Resigning
Trustee prior to the dates set forth in Section 402 are the responsibility of
the Resigning Trustee, and that acts and omissions of the Successor Trustee
going forward from the dates set forth in Section 402 will be the responsibility
of the Successor Trustee.
SECTION 405. This Agreement shall be governed by and construed in
accordance with the laws of the jurisdiction which governs the Indenture and its
construction.
SECTION 406. 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 instrument.
SECTION 407. All notices, whether faxed or mailed, will be deemed
received when sent pursuant to the following instructions:
TO THE COMPANY
Salton, Inc.
0000 Xxxxx Xxxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
Attn: President and Chief Operating Officer
Fax: 000-000-0000
Tel: 000-000-0000
TO THE RESIGNING TRUSTEE
Xxxxx Fargo Bank, National Association
Sixth Street and Marquette Avenue
MAC N9303-120
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx
Fax: 000-000-0000
Tel: 000-000-0000
TO THE SUCCESSOR TRUSTEE
SunTrust Bank
000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxxxx X. Xxxx
Fax: 000-000-0000
Tel: 000-000-0000
[Remainder of Page Intentionally Left Blank]
5
IN WITNESS WHEREOF, the parties hereto have caused this Agreement of
Resignation, Appointment and Acceptance to be duly executed as of the day and
year first above written.
SALTON, INC.
as the Company
By /s/ XXXX XXXXXXXXXX
--------------------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Senior Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as the Resigning Trustee
By /s/ XXXXX X. XXXXXX
--------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
SUNTRUST BANK,
as the Successor Trustee
By /s/ XXXXXXXXX X. XXXX
--------------------------------------------
Name: Xxxxxxxxx X. Xxxx
Title: Vice President
EXHIBIT A
Documents to be delivered to the Successor Trustee (to the best of the ability
of the Resigning Trustee)
1. Executed copy of the Indenture and all amendments and supplements
thereto.
2. File of closing documents.
3. Copies of the most recent of each of the SEC reports delivered by the
Company pursuant to Section 4.3 of the Indenture, if any.
4. A copy of the most recent compliance certificate delivered by the
Company pursuant to Section 4.4 of the Indenture, if any.
5. Copies of any official notices sent by the Resigning Trustee to all the
Holders of the Securities 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, if any.
EXHIBIT B
NOTICE TO THE HOLDERS OF
SALTON, INC.
10-3/4% SENIOR SUBORDINATED NOTES DUE 2005
Resignation of Trustee and Appointment of Successor Trustee
Effective June 27, 2005, Xxxxx Fargo Bank, National Association,
successor by merger to Xxxxx Fargo Bank Minnesota, National Association,
formerly known as Norwest Bank Minnesota, National Association, has resigned as
trustee with respect to the senior subordinated notes issued under the Indenture
dated as of December 16, 1998 (the "Indenture"). Effective immediately, SunTrust
Bank has been appointed successor trustee with respect to the senior
subordinated notes issued under the Indenture.
The Corporate Trust Office of SunTrust Bank is:
000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxx, Xxxxxxx 00000
This office will be the Corporate Trust Office for all purposes under
the Indenture.
This notice is given pursuant to Section 7.8 of the Indenture.
Dated , 2005
--------------
,
-------------------------------------------
as Successor Trustee
