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TRIPARTITE AGREEMENT
AGREEMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE, (the "Agreement:) dated as
of February 2, 1999, among BISCAYNE APPAREL, INC. (the "Company"), FIRST UNION
NATION BANK, as successor Trustee to Southeast Bank, N.A., as Trustee,
("Resigning Trustee") and U.S. BANK NATIONAL ASSOCIATION ("Successor Trustee").
FIRST: The Company and the Resigning Trustee have entered into an Indenture
dated as of December 15, 1989, (the "Indenture") related to the issuance of
$9,014,700 in initial principal amount of the Company's 13% Subordinated Notes
due December 15, 1999.
SECOND: Section 7.8 of the Indenture provides that the Resigning Trustee may
resign by so notifying the Company.
THIRD: Section 7.8 of the Indenture further provides that if the trustee
resigns, the Company shall promptly appoint a successor Trustee.
FOURTH: The Resigning Trustee desires to resign and the Company desires to
appoint the Successor Trustee as Trustee. Paying Agent, Registrar and Agent for
Service of Notices to succeed the resigning Trustee in these capacities under
the Indenture;
FIFTH: The Successor Trustee is willing to accept the appointment as Trustee,
Paying Agent, Registrar, and Agent for Service of Notices subject to certain
terms and conditions;
NOW, THEREFORE, in consideration of the covenants 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: APPOINMENT OF SUCCESSOR
TRUSTEE. The Company accepts the resignation of the Resigning Trustee as
Trustee, Paying Agent, Registrar, and Agent for Service of Notices and, pursuant
to the authority vested in it by Section 7.8 of the Indenture, the Company
hereby appoints the Successor Trustee as Successor Trustee, Paying Agent,
Registrar and Agent for Service of Notices under the Indenture with all of the
rights, powers and duties heretofore vested in the Resigning Trustee under the
Indenture, such appointment to become effective at the close of business on
February 2, 1999 (the "Effective Date").
2. COMPANY REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to the Successor Trustee that:
a. It is duly organized and validly existing;
b. It has not entered into any amendment or supplement to the indenture,
therefore the Indenture is in full force and effect;
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c. To the best of the actual knowledge of the Company, the execution and
delivery of this Agreement and the consummation of the Transactions
contemplated hereby 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 contract, agreement, indenture or other instrument (including,
without limitation its certificate of incorporation and by-laws) to which
it is a party or by which it or its property is bound or any judgement,
decree or order or order of any court or governmental agency or
regulatory body or law, rule or regulation applicable to it or its
property; and
d. To the best of the actual knowledge of the Company, the Company
represents and warrants to the Successor Trustee that the securities were
validly issued.
3. RESIGNING TRUSTEE REPRESENTATIONS AND WARRANTIES. 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 security holders of the percentage in aggregate principal
amount of the securities 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 the Resigning Trustee 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. 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
will furnish to the Successor Trustee such Documents or information on or
before the Effective Date;
d. To the best of its knowledge, it has lawfully discharged its duties as
Trustee, Paying Agent, Registrar and Agent for Service of Notices under
the Indenture;
e. The Indenture has not been amended or modified and is in full force
and effect except as noted;
f. The Resigning Trustee certifies that $6,443,500 in principal amount on
the 13% Subordinated Notes is outstanding as of January 19, 1999 and
interest has been paid through June 15, 1998.
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4. SUCCESSOR TRUSTEE REPRESENTATION AND WARRANTY. The Successor Trustee
represents and warrants to the Resigning Trustee and the Company that:
a. it is eligible to serve as Trustee, Paying Agent, Registrar and Agent
for Service of Notices under the Indenture and the Trust Indenture Act of
1939, as amended (the "Act") and under the Rules of the New York Stock
Exchange;
b. it has a combined capital and surplus of at least $100,000,000 as set
forth in its most recent published annual report of condition.
5. ACCEPTANCE BY SUCCESSOR TRUSTEE. The Successor Trustee hereby accepts,
effective at the close of business on the Effective Date, its appointment as
Successor Trustee, Paying Agent, Registrar and Agent for Service of Notices and
assumes all rights, powers and duties of the Trustee under the Indenture. The
Successor Trustee will perform said rights, powers and duties upon the terms and
conditions set forth in the Indenture.
6. ASSIGMENT ETC. BY RESIGNING TRUSTEE. Effective at the close of business on
the Effective Date, the Resigning Trustee hereby confirms, assigns, transfers,
delivers and conveys to the Successor Trustee, as Successor Trustee, Paying
Agent, Registrar and Agent for Service of Notices under the Indenture, upon the
Trusts expressed in the Indenture, all rights, powers and trusts, which the
Resigning Trustee, as Trustee, Paying Agent, Registrar and Agent for Service of
Notices now holds under and by virtue of the Indenture, and effective as of such
date does hereby pay over to the Successor Trustee under the Indenture, any and
all property and moneys held by the Resigning Trustee under and by virtue of the
Indenture, subject nevertheless to the lien provided by Section 7.7 of the
Indenture.
7. ADDITIONAL DOCUMENTATION. The Company and the Resigning Trustee, for the
purposes of more fully and certainly vesting in and confirming to the Successor
Trustee, as Successor Trustee, Paying Agent, Registrar and Agent for Service of
Notices under the Indenture, said rights, powers and trusts, 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 many reasonably be required for more fully and certainly vesting
and confirming to the Successor Trustee all rights, powers and trusts which the
Resigning Trustee now holds under and by virtue of the Indenture.
8. CAPITALIZED TERMS. All capitalized terms in this Agreement shall have the
meanings ascribed to them in the Indenture unless this Agreement specifically
provides otherwise.
9. CHOICE OF LAW/VENUE. This Agreement shall be governed by Florida Law. The
Company, the Resigning Trustee and the Successor Trustee consent to the personal
jurisdiction of the state and federal courts located in the State of Florida in
connection with any controversy related to this Agreement and waive any argument
that venue in such forums is not convenient.
10. COUNTERPARTS. This Agreement may be executed in any number of counterparts,
each of which, when so executed and delivered, shall be an original, but all
counterparts shall constitute but one and the same agreement.
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11. SURVIVAL OF COMPANY"S OBLIGATIONS TO RESIGNING TRUSTEE. Nothing contained in
this Agreement shall in any way affect the obligations of the Company to the
Resigning Trustee under the Indenture or any lien created thereunder.
THE REMAINDER OF THIS PAGE IS PURPOSEFULLY LEFT BLANK
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12. NOTICES. All notices, whether faxed or mailed will be deemed received when
sent pursuant to the following instructions:
TO FIRST UNION NATIONAL BANK
Xxxxxx Xxxxxxx
Corporate Trust Administrator
Corporate Trust Group
Fist Union National Bank
FL0122
000 Xxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
FAX: (000) 000-0000
TELEPHONE: (000) 000-0000
TO U.S. BANK NATIONAL ASSOCIATION
Xxxxxxx X. Xxxxxxx
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, XX 00000
TO BISCAYNE APPAREL, INC.
Biscayne Apparel, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxx Xxxxxx 00000
FAX:
TELEPHONE: (000) 000-0000
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IN WITNESSETH WHEREOF, Biscayne Apparel, Inc., First Union National Bank and
U.S. Bank National Association have executed this Agreement as of the dates set
forth below.
BISCAYNE APPAREL, INC.
By: /s/
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Its: President Date: 1/21/99
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FIRST UNION NATIONAL BANK
By
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Its Date:
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U.S. NATIONAL ASSOCIATION
By
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Its Date:
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