EXHIBIT 4(d)
INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE, dated
as of December 23, 2002, by and among Sotheby's Holdings, Inc., a corporation
duly organized and existing under the laws of the State of Michigan, having its
principal office at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx Xxxxx,
Xxxxxxxx 00000 (the "Company"), JPMorgan Chase Bank (formerly known as 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 4 New York Plaza, 15th
Floor, New York, New York 10004, as resigning Trustee (the "Resigning Trustee"),
and Wilmington Trust Company, a corporation duly organized and existing under
the laws of the State of Delaware, having its principal corporate trust office
at Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, as
successor Trustee (the "Successor Trustee").
RECITALS
There are presently outstanding under an Indenture dated as of
February 5, 1999 (the "Indenture"), between the Company and the Resigning
Trustee $100,000,000 in aggregate principal amount of 6 7/8% Notes due 2009 (the
"Securities").
The Resigning Trustee wishes to resign as Trustee, the office
or agency where the Securities may be surrendered for registration of transfer
or exchange (the "Registrar"), the office or agency where the Securities may be
presented or surrendered for payment (the "Paying Agent") and the office or
agency where notices and demands to or upon the Company in respect of the
Securities and the Indenture may be served (the "Agent") for all the Securities
under the Indenture; the Company wishes to appoint the Successor Trustee to
succeed the Resigning Trustee as Trustee, Registrar, Paying Agent and Agent for
all the Securities under the Indenture; and the Successor Trustee wishes to
accept appointment as Trustee, Registrar, Paying Agent and Agent for all the
Securities under the Indenture.
NOW, THEREFORE, in consideration of the mutual covenants and
premises herein, the receipt and sufficiency of which are hereby acknowledged,
the Company, the Resigning Trustee and the Successor Trustee agree as follows:
ARTICLE ONE
THE RESIGNING TRUSTEE
Section 101. Pursuant to Section 7.08 of the Indenture, the
Resigning Trustee hereby notifies the Company that the Resigning Trustee is
hereby resigning as Trustee for all the Securities under the Indenture.
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.
(b) 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.
(c) This Instrument has been duly authorized,
executed and delivered on behalf of the Resigning Trustee.
(d) $100,000,000 aggregate principal amount of the
Securities is outstanding.
(e) Interest on the Securities has been paid through
August 1, 2002.
(f) To the best of the knowledge of the Responsible
Officers of the Resigning Trustee assigned to its Corporate
Trust Office, no Event of Default and no event which, after
notice or lapse of time or both, would become an Event of
Default, had occurred and is continuing under the Indenture.
(g) The Resigning Trustee 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
department relating to the administration and status of the
Trusts.
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 for all the Securities under the Indenture.
Section 105. The Resigning Trustee agrees to pay or indemnify
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
counsel and other advisors), that the Successor Trustee suffers or incurs
without gross negligence or bad faith on its part arising out of actions or
omissions of the Resigning Trustee. The Successor Trustee will furnish to the
Resigning Trustee, promptly after receipt, all papers with respect to any action
the outcome of which would make operative the indemnity provided for in this
Section. The Successor Trustee shall notify the Resigning Trustee promptly in
writing (and, in any event, within no later than 10 days) of any claim for which
it may seek indemnity. The Resigning Trustee shall have the option to defend the
claim and the Successor Trustee shall cooperate fully in the defense. If the
Resigning Trustee shall assume the defense, then the Resigning Trustee shall not
pay for separate counsel
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of the Successor Trustee. The Resigning Trustee shall not be obligated to pay
for any settlement made without its consent.
ARTICLE TWO
THE ISSUER
Section 201. The Company hereby accepts the resignation of the
Resigning Trustee as Trustee, Registrar, Paying Agent and Agent for all the
Securities under the Indenture. Pursuant to Section 7.08 of the Indenture, the
Company hereby appoints the Successor Trustee as Trustee for all the Securities
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 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 and
duties hereby assigned, transferred, delivered and confirmed to the Successor
Trustee.
Section 202. The Company 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 Michigan.
(b) The Indenture was validly and lawfully executed
and delivered by the Company, has not been amended or
modified, and is in full force and effect.
(c) The Securities are validly issued securities of
the Company.
(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 6.01 of the Indenture.
(e) No covenant or condition contained in the
Indenture has been waived by the Company or by the Holders of
the percentage in aggregate principal amount of the Securities
required to effect any such waiver.
(f) There is no action, suit or proceeding pending
or, to the best of the Company's knowledge, threatened against
the Company before any court or any governmental authority
arising out of any action or omission by the Company under the
Indenture.
(g) This Instrument has been duly authorized,
executed and delivered on behalf of the Company.
(h) All conditions precedent relating to the
appointment of Wilmington Trust Company as successor Trustee,
Registrar, Paying Agent and Agent for all the Securities under
the Indenture have been complied with by the Company.
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Section 203. The Company hereby appoints the Successor Trustee
as Registrar, Paying Agent and Agent for all the Securities under the Indenture.
ARTICLE THREE
THE SUCCESSOR TRUSTEE
Section 301. The Successor Trustee hereby represents and
warrants to the Resigning Trustee and to the Company that the Successor Trustee
is qualified and eligible under Section 7.10 of the Indenture to act as Trustee
for all the Securities under the Indenture.
Section 302. Pursuant to Section 7.08 of the Indenture, the
Successor Trustee hereby accepts its appointment as Trustee for all the
Securities 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 for all the Securities under
the Indenture.
Section 304. Promptly after the execution and delivery of this
Instrument, the Successor Trustee shall cause a notice, the form of which is
annexed hereto marked Exhibit A, to be sent to each Holder in accordance with
Section 7.08 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 for all the Securities 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 Company shall remain obligated under Section 7.07
of Indenture to compensate, reimburse and indemnify the Resigning Trustee in
connection with its prior trusteeship under the Indenture. The Company also
acknowledges and reaffirms its obligations to the Successor Trustee, including
payments to be made in accordance with the fee schedules attached hereto as
Exhibit B, as set forth in Section 7.07 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.
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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:
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Institutional Trust Services
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
TO THE SUCCESSOR TRUSTEE:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
TO THE COMPANY:
Sotheby's Holdings, Inc.
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Secretary
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
WITH A COPY TO:
Sotheby's, Inc.
0000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Treasurer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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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.
SOTHEBY'S HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
JPMORGAN CHASE BANK, as Resigning
Trustee
By: /s/ Xxxxxxxx Xxxxx
----------------------------------------------
Name: Xxxxxxxx Xxxxx
Title: Vice President
WILMINGTON TRUST COMPANY, as
Successor Trustee
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Financial Services Officer
EXHIBIT A
[LETTERHEAD OF WILMINGTON TRUST COMPANY]
Notice to Holders of 6 7/8% Notes due 2009 (the "Securities").
We hereby notify you of the resignation of JPMorgan Chase Bank
(formerly known as The Chase Manhattan Bank) as Trustee under the Indenture,
dated as of February 5, 1999 (the "Indenture"), pursuant to which your
Securities were issued and are outstanding.
Sotheby's Holdings, Inc. (the "Company") has appointed
Wilmington Trust Company, whose Corporate Trust Office is located at Xxxxxx
Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, as successor
Trustee under the Indenture, which appointment has been accepted and has become
effective. Wilmington Trust Company has also been appointed as the office or
agency where the Securities may be surrendered for registration of transfer or
exchange, where the Securities may be presented or surrendered for payment and
where notices and demands to or upon the Company in respect of the Securities
and the Indenture may be served.
WILMINGTON TRUST COMPANY
Dated: December 23, 2002
EXHIBIT B
SOTHEBY'S HOLDINGS, INC.
SCHEDULE OF FEES
To Act As
Trustee, Registrar & Paying Agent
6 7/8% Notes Due 2009
NOTE:
Subject to a legal and administrative review of the governing documents and
acceptable indemnification for our fees and expenses from a creditworthy entity.
Out of pocket expenses (including outside counsel's fees and expenses in
connection with the closing and in connection with any post-closing matters) are
additional and are billed separately within 30 days from closing. Wilmington
Trust requests that whenever possible, the Initial Fee and a prorated portion of
the first year's Annual Administration Fee be paid on the closing date by wire
transfer per the following wire transfer instructions: Wilmington Trust Company,
Wilmington, Delaware; ABA No. 000000000; for credit to the account of Corporate
Trust Administration - Income Account; Account No. 9974-0 (Income); Attn: Xxxxx
Xxxxxx; Ref: Trustee Fees and Expenses for Sotheby's Holdings, Inc. 6 7/8% Notes
Due 2009. Thereafter, the Annual Administration Fee is due and payable annually
in advance on each anniversary of the closing date. Transaction Fees are due and
payable annually in arrears. All fees are non-refundable and will not be
prorated in the event of an early termination of the Trust. All fees quoted are
guaranteed for a period of 90 days.
AS TRUSTEE
Initial Charge: (payable in advance) Waived
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Covers the acceptance of a Trust created or modified by an Indenture or
Resolution ("Instrument").
These charges include a complete study of drafts of Instruments and all
supporting documents in connection therewith, conferences until a final
Instrument is agreed upon, execution of the final Instrument and authentication
of securities in either temporary or definitive form.
Annual Administration Charges: (payable in advance) $6,000
-----------------------------
Covers normal administration functions including the maintenance of
administrative records, duties in connection with the security provisions of the
Instrument, and the consideration and decision with respect to various normal
administrative questions. The Trustee reserves the right to determine which
services may be considered "normal".
Default Administration Charges:
Charges are accrued at an hourly rate, as follows:
Vice President $ 375.00 per hour
Assistant Vice President $ 290.00 per hour
Financial Services Officer $ 225.00 per hour
Covers default administration functions including the maintenance of
administrative records, duties in connection with the security provisions of the
Instrument, and the consideration and decision with respect to various default
administrative questions.
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AS REGISTRAR AND PAYING AGENT
Annual Charge: Waived
-------------
Annual Account Maintenance Fee (payable in advance) $1,000
(Accounts maintained at beginning of each billing period plus all accounts
opened during period)
Covers maintenance of security holders' name and address file, recording
certificate transactions, correspondence with and research for security holders,
payment of interest, placement, maintenance and removal of stop transfer
protection, replacement of lost or stolen certificates, examination and passing
upon legal transfers and maintaining all control records, including one audit
confirmation.
AGREED TO & ACCEPTED _____________________
DATE: December 23, 2002
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