EXHIBIT 4-B-1
EXECUTION
INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE, dated as of July
___, 1995, among HARTMARX CORPORATION, a corporation duly organized and existing
under the laws of the State of Delaware, having its principal office at 000
Xxxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 (the "Company"), BANK ONE, COLUMBUS,
NA, a national banking association having its principal Corporate Trust Office
at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 ("Bank One"), and BANK ONE
WISCONSIN TRUST COMPANY, NA, a national banking association having its principal
office at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxx 00000 ("Wisconsin Trust").
WHEREAS, the Company issued $100,000,000 principal amount of its 10 7/8%
Senior Subordinated Notes due January 15, 2002 (the "Notes"), under an Indenture
dated as of March 15, 1994 (the "Indenture"), between the Company and Wisconsin
Trust, as the Trustee (the "Trustee"); and
WHEREAS, the Company appointed Wisconsin Trust as paying agent (the "Paying
Agent"), as registrar (the "Registrar") and as the Trustee under the Indenture;
and
WHEREAS, the Indenture provides that the Trustee may at any time resign by
giving written notice thereof to the Company; and
WHEREAS, the Trustee represents that it gave the Company a written notice
of its resignation as Trustee, a copy of which is annexed hereto and marked as
Exhibit A; and
WHEREAS, the Indenture further provides that, if the Trustee shall resign,
the Company shall promptly appoint a successor Trustee; and
WHEREAS, the Company, pursuant to the terms of the Indenture and this
Agreement, has accepted the resignation of Wisconsin Trust, as Paying Agent,
Registrar and Trustee, and appointed Bank One as successor Paying Agent,
Registrar and Trustee; and
WHEREAS, the Indenture provides that the successor Trustee shall execute,
acknowledge and deliver to the Company and to the resigning Trustee an
instrument accepting such appointment and thereupon the resignation of the
Trustee shall become effective and such successor Trustee without any further
act, deed or conveyance, shall become vested with all rights, powers, duties and
obligations of the resigning Trustee; and
WHEREAS, the Indenture further provides that no successor Trustee shall
accept appointment as such unless at the time it is qualified and eligible under
the Indenture; and
WHEREAS, Bank One is qualified, eligible and willing to accept such
appointment as successor Trustee; and
WHEREAS, the Indenture further provides that the successor Trustee shall
mail notice of its succession to Securityholders; and
WHEREAS, the successor Trustee, simultaneously with the execution and
delivery of this Instrument, has caused the notice required pursuant to the
Indenture, a form of which is annexed hereto and marked as Exhibit B, to be
mailed to the Securityholders as therein required.
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NOW, THEREFORE, THIS INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE,
WITNESSETH: that for and in consideration of the premises and of other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, it is hereby covenanted, declared and decreed by the Company, the
successor Trustee and the Trustee as follows:
1. The resignation of Wisconsin Trust, as Trustee, and its discharge from
the trust created by the Indenture shall be effective as of the date hereof upon
the execution and delivery of this Instrument by all the parties hereto.
2. The Company, in the exercise of the authority vested in it by the
Indenture hereby appoints Bank One as successor Trustee with all rights, powers,
trusts, duties and obligations under the Indenture, such appointment to be
effective as of the date hereof upon the execution and delivery of this
Instrument by all the parties hereto.
3. Bank One hereby represents that it is qualified and eligible under the
provisions of the Indenture, including but not limited to Section 7.10 thereof,
to be appointed successor Trustee, and hereby accepts its appointment as
successor Trustee, effective as of the date hereof upon the execution and
delivery of this Instrument by all parties hereto, and hereby assumes the
rights, powers, trusts, duties and obligations of the Trustee under the
Indenture, subject to all terms and provisions therein contained. Bank One
further agrees that it will send the notice required to be sent to
Securityholders pursuant to Section 7.8 of the Indenture.
4. Wisconsin Trust hereby grants, gives, bargains, sells, remises,
releases, coveys, confirms, assigns, transfers
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and sets over to Bank One as such successor Trustee and its successors and
assigns, all rights, title and interest of Wisconsin Trust in and to the trust
estate and all rights, powers, and trusts, under the Indenture; and Wisconsin
Trust does hereby pay over, assign and deliver to Bank One as such successor
Trustee any and all money, if any, and property, if any, held by Wisconsin Trust
as Trustee; and the Company for the purpose of more fully and certainly vesting
in and confirming to Bank One as such successor Trustee said estate, properties,
rights, powers and duties, at the request of Bank One, joins in the execution
hereof.
5. Notwithstanding the resignation of Wisconsin Trust, as Trustee under
the Indenture, the Company shall remain obligated under the Indenture to
compensate, reimburse and indemnify Wisconsin Trust in connection with its
Trusteeship under the Indenture, as more specifically required by Section 7.7 of
the Indenture.
6. 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.
7. This Instrument shall be governed by and construed in accordance with
the laws of the State of New York but without giving effect to applicable
principles of conflicts of law to the extent that the application of laws of
another jurisdiction would be required thereof.
8. Capitalized terms used by not defined herein shall have the meanings
specified in the Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Instrument of
Resignation, Appointment and Acceptance to be duly executed and their respective
seals to the affixed hereunto and duly attested all as of the day and year first
above written.
HARTMARX CORPORATION
By_________________________
Xxxxxxx X. Xxxxxxx,
Executive Vice President
and Chief Financial Officer
[Seal]
ATTEST:
_________________________
Xxxx X. Xxxxx, Secretary
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BANK ONE, COLUMBUS, NA
as successor Trustee
By:_________________________
Name:
Authorized Signatory
[Corporate Seal]
ATTEST:
_________________________
Authorized Signatory
BANK ONE WISCONSIN TRUST
COMPANY, NA,
as resigning Trustee,
By:_________________________
Name:
Authorized Signatory
[Corporate Seal]
ATTEST:
_________________________
Authorized Signatory
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