EXHIBIT 4.1
FIRST SUPPLEMENTAL INDENTURE
CONGOLEUM CORPORATION,
Issuer,
and
WACHOVIA BANK, NATIONAL ASSOCIATION
(as successor to First Union National Bank),
as Trustee
________________________________________________
First Supplemental Indenture
Dated as of March 28, 2003
to the Indenture dated as of August 3, 1998
________________________________________________
$100,000,000
8 5/8% Senior Notes Due 2008
________________________________________________
FIRST SUPPLEMENTAL INDENTURE, dated as of March 28, 2003, between
Congoleum Corporation, a Delaware corporation (the "Issuer"), and Wachovia
Bank, National Association (as successor to First Union National Bank), as
Trustee (the "Trustee"), under the Indenture dated as of August 3, 1998 (the
"Indenture"), as supplemented by this First Supplemental Indenture being
supplemental thereto.
RECITALS OF THE ISSUER
The Indenture was authorized, executed and delivered by the Issuer to
provide for the issuance by the Issuer of the Issuer's 8 5/8% Senior Notes Due
2008 (the "Notes").
The Issuer has duly authorized the execution and delivery of this
First Supplemental Indenture to amend the Indenture as set forth herein
pursuant to Article VIII of the Indenture, and all acts necessary to make this
First Supplemental Indenture a valid agreement of the Issuer have been
performed.
In accordance with Articles VII and VIII of the Indenture, the Issuer
issued Solicitations of Consents to Amend Certain Provisions of the Indenture,
each dated March 17, 2003, and obtained the consent of Holders (as defined in
the Indenture) of not less than a majority in aggregate principal amount of
the outstanding Notes to amend the Indenture as set forth herein.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH, that,
in consideration of the premises, it is mutually agreed, for the benefit of
each other and for the equal and proportionate benefit of all Holders of the
Notes, as follows:
ARTICLE ONE
AMENDMENT OF INDENTURE
1.1 Definitions; Rules of Construction.
Terms defined in the Indenture and used without other definition
herein have the respective meanings ascribed to them in the Indenture. The
rules of construction set forth in the Indenture likewise govern this First
Supplemental Indenture.
1.2 Amendments to Section 1.1 of the Indenture.
Section 1.1 of the Indenture is hereby amended by:
(1) adding the following new defined term to read as follows:
"'Asbestos Insurance Policies' means the insurance
policies pursuant to which the Issuer or any of its Affiliates is a named
insured and which policies provide coverage for asbestos-related matters,
including without limitation, claims, assertions or allegations of
asbestos-related personal injuries, wrongful deaths or property damage
claims.";
(2) adding the following new defined term to read as follows:
'"Asbestos Proceedings' means all actions, suits,
investigations, litigation, proceedings or claims pending or threatened
by any Person against the Issuer or any of its Affiliates for
asbestos-related matters, including without limitation, claims,
assertions or allegations of asbestos-related personal injuries, wrongful
deaths or property damage claims.";
(3) adding the following new defined term to read as follows:
"'Asbestos Settlements' means all agreements,
arrangements and understandings currently in effect, proposed, made or
agreed to in respect of the Issuer or any of its Affiliates for the
purpose of resolving, restructuring, determining, settling, paying,
funding, discharging, indemnifying for, or compromising, present or
future liabilities or claims arising from or constituting Asbestos
Proceedings, including without limitation any settlement agreements,
settlement trusts and plans of reorganization under chapter 11 of the
Bankruptcy Code for the Issuer or its Affiliates.";
(4) removing the word "and" appearing immediately before clause (iii) in
the parenthetical appearing toward the end of the definition of "Asset
Sale" and adding a new clause (iv) immediately before the end of that
parenthetical to read as follows:
", and (iv) any assignment of or grant of a security
interest in certain rights in and proceeds of Asbestos Insurance Policies
by the Issuer and/or any of its Affiliates pursuant to a Proposed
Transaction";
(5) adding the following new defined term to read as follows:
"'Bankruptcy Code' means the United States Bankruptcy
Code of 1978, as amended.";
(6) adding language immediately prior to the comma appearing at the end
of clause (a) appearing in the definition of "Change of Control" to read
as follows:
"; provided, however, that notwithstanding anything
herein to the contrary, any assignment, transfer or pledge of any
securities of the Issuer pursuant to, in connection with or as a result
of a Proposed Transaction shall not constitute or give rise to a Change
of Control under this clause (a)";
(7) adding the following new defined term to read as follows:
"'Chapter 11 Case' means a case commenced by the Issuer
and/or any of its Affiliates under chapter 11 of the Bankruptcy Code.";
(8) removing the word "and" appearing immediately before clause (e) in
the definition of "Permitted Investments" and adding new clauses (f) and
(g) immediately before the end of that definition to read as follows:
"; (f) any assignment of or grant of a security interest
in certain rights in and proceeds of Asbestos Insurance Policies by the
Issuer and/or any of its Affiliates pursuant to a Proposed Transaction;
and (g) the issuance to the Plan Trust of any promissory note by the
Issuer (whether as sole or joint obligor thereunder) or guarantee by the
Issuer of any promissory note issued pursuant to a Proposed Transaction,
which promissory note or guarantee shall be consistent with clause
(iii)(d) of the definition of a Proposed Transaction";
(9) removing the word "and" appearing immediately before clause (o) in
the definition of "Permitted Liens" and adding a new clause (p)
immediately before the end of that definition to read as follows:
"; and (p) any Liens created or incurred as a result of
any assignment of or grant of a security interest in certain rights in
and proceeds of Asbestos Insurance Policies by the Issuer and/or any of
its Affiliates pursuant to a Proposed Transaction";
(10) adding the following new defined term to read as follows:
"'Plan Trust' means a trust established by the Issuer
and/or any of its Affiliates pursuant to sections 105(a) or 524(g) of the
Bankruptcy Code upon consummation of a confirmed plan of reorganization
in the Chapter 11 Case to assume present and future liabilities of the
Issuer and its Affiliates arising from or relating to Asbestos
Proceedings, including without limitation, all obligations owed by the
Prepetition Trust(s).";
(11) adding the following new defined term to read as follows:
"'Prepetition Trust(s)' means a trust or trusts
established by the Issuer and/or any of its Affiliates to assume certain
liabilities of the Issuer and its Affiliates pursuant to, arising from,
in connection with, related to or in contemplation of Asbestos
Proceedings, to be funded solely by an assignment of or grant of a
security interest in the Prepetition Trust Assets by the Issuer and/or
any of its Affiliates, which Prepetition Trust Assets shall be
distributed or payable solely as follows: (i) for payment of the expenses
and costs of administration of any Prepetition Trust, (ii) to holders of
claims arising from or relating to Asbestos Proceedings, their counsel or
other representatives, (iii) to the Plan Trust, or (iv) if the Plan Trust
were not established, the Prepetition Trust Assets shall revert and be
paid to the respective grantor of the assignment of or security interest
in such Prepetition Trust Assets."; and
(12) adding the following new defined term to read as follows:
"'Prepetition Trust Assets' means certain rights in and
proceeds of Asbestos Insurance Policies of the Issuer and/or any of its
Affiliates."; and
(13) adding the following new defined term to read as follows:
"'Proposed Transaction' means any of the following
actions, agreements, arrangements and understandings intended to achieve
Asbestos Settlements pursuant to, arising from, in connection with,
related to or in contemplation of a Chapter 11 Case: (i) establishment
and funding by the Issuer and/or any of its Affiliates of any Prepetition
Trust; (ii) establishment by the Issuer and/or any of its Affiliates of
the Plan Trust; and (iii) funding of the Plan Trust with (a) the
Prepetition Trust Assets, (b) an assignment of or grant of a security
interest in certain rights in and proceeds of Asbestos Insurance Policies
by the Issuer and/or any of its Affiliates, (c) an assignment or transfer
(whether as an outright assignment or transfer or only upon the
occurrence of a specified event) or pledge of common stock of the Issuer
constituting a majority of the common stock of the Issuer, and/or (d) a
promissory note to be issued (whether as sole or joint obligor
thereunder) by the Issuer and/or any Affiliate of the Issuer or
guaranteed by the Issuer pursuant to which (x) any payments to be paid or
payable by the Issuer (whether in the form of principal, interest or
otherwise) thereunder or with regard thereto shall not exceed $1 million
in the aggregate and (y) the right of payment shall be subordinated to
the Securities."
1.3 Amendment to Section 3.5(b) of the Indenture.
Section 3.5(b) of the Indenture is hereby amended by:
(1) removing the word "and" appearing at the end of clause (xi);
(2) removing the period at the end of clause (xii) and inserting "; and";
and
(3) adding a new clause (xiii) to read as follows:
"(xiii) Indebtedness as a result of a Proposed Transaction."
1.4 Amendment to Section 3.10(b) of the Indenture.
Section 3.10(b) of the Indenture is hereby amended by:
(1) removing the word "and" appearing immediately before clause (iii) in
said section;
(2) inserting a comma after the reference to Section 3.6 appearing at the
end of clause (ii) of said section; and
(3) adding a new clause (iv) immediately before the end of said section
to read as follows:
"and (iv) a Proposed Transaction"
1.5 Amendment to Section 3.13 of the Indenture.
Section 3.13 of the Indenture is hereby amended by adding a sentence
at the end of the second paragraph of said section to read as follows:
"The foregoing restrictions and obligations shall not apply to any
assignment of or grant of a security interest in certain rights in and
proceeds of Asbestos Insurance Policies pursuant to a Proposed Transaction,
and any such assignment or grant shall not be violative thereof."
1.6 Amendment to Section 5.1(g) of the Indenture.
Section 5.1(g) of the Indenture is hereby amended by adding a proviso
immediately after the word "creditors" appearing at the end of said section to
read as follows:
"; provided, however, that any assignment of or grant of
a security interest in certain rights in and proceeds of Asbestos
Insurance Policies pursuant to a Proposed Transaction shall not
constitute or give rise to an Event of Default under this Section 5.1(g)"
1.7 Amendment to Section 9.1 of the Indenture.
Section 9.1 of the Indenture is hereby amended by adding a new
paragraph at the end of said section to read as follows:
"The foregoing restrictions and obligations shall not
apply to any assignment of or grant of a security interest in certain
rights in and proceeds of Asbestos Insurance Policies pursuant to a
Proposed Transaction, and any such assignment or grant shall not be
violative thereof."
1.8 Effectiveness of Amendments.
Upon execution and delivery by the Issuer and the Trustee of this
First Supplemental Indenture, this First Supplemental Indenture shall
immediately become effective.
ARTICLE TWO
MISCELLANEOUS
2.1 Severability.
In case any provision in this First Supplemental Indenture shall be
invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
2.2 Governing Law.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE THIS FIRST SUPPLEMENTAL INDENTURE.
2.3 Ratification.
This First Supplemental Indenture is a supplement to the Indenture.
As supplemented by this First Supplemental Indenture, the Indenture is in all
respects ratified, approved and confirmed and the Indenture and this First
Supplemental Indenture shall together constitute one and the same instrument.
2.4 Interpretation.
This First Supplemental Indenture confirms that the assignment of
certain rights in and proceeds of insurance policies in which the Issuer or
any of its Affiliates is a named insured by the Issuer or any of its
Affiliates in satisfaction or settlement of any claims made or judgments
rendered against them is within their ordinary course of business and would
not violate the terms of the Indenture.
2.5 Counterpart Originals.
The parties may sign separate copies of this First Supplemental
Indenture. Each signed copy shall be an original, but both of them together
represent the same agreement.
2.6 The Trustee.
The Trustee shall not be responsible in any matter whatsoever for or
in respect of the validity or sufficiency of this First Supplemental Indenture
or for or in respect of the Recitals contained herein, all of which are made
solely by the Issuer.
[Signature Page To Follow]
IN WITNESS WHEREOF, CONGOLEUM CORPORATION has caused this First
Supplemental Indenture to be signed in its corporate name and acknowledged by
one of its duly authorized officers; and WACHOVIA BANK, NATIONAL ASSOCIATION
(as successor to First Union National Bank), as Trustee, has caused this First
Supplemental Indenture to be signed and acknowledged by one of its duly
authorized signatories, and its seal to be affixed hereunto or impressed
hereon, duly attested, as of the day and year first set forth above.
CONGOLEUM CORPORATION
By: /s/ Xxxxxx X. Xxxxx III
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Name: Xxxxxx X. Xxxxx III
Title: CFO
Attest:
/s/ Xxxxxxx X. XxXxxxx
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WACHOVIA BANK, NATIONAL ASSOCIATION
(as successor to First Union
National Bank), as Trustee
By: /s/ Xxxxxx X. Xxxx XX
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Name: Xxxxxx X. Xxxx XX
Title: Vice President
(SEAL)
Attest:
/s/ Xxxxxxxxx X. Xxxx
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