Exhibit 10.3.2
TERMINATION AGREEMENT
This termination agreement ("Termination Agreement") is entered into by
and between Congoleum Corporation, a Delaware corporation ("Congoleum") and
Xxxxxx X. Xxxxxxxxx, solely in his capacity as the Collateral Trustee (the
"Collateral Trustee") of the Collateral Trust created pursuant to the Collateral
Trust Agreement (referenced to below).
RECITALS
WHEREAS, Congoleum and the Collateral Trustee entered into a Security
Agreement on or about April 11, 2003 (the "Security Agreement"), a true and
correct copy of which is attached hereto as Exhibit "A"; and
WHEREAS, Congoleum entered into a Second Security Agreement on or about
April 17, 2003 (the "Second Security Agreement"), a true and correct copy of
which is attached hereto as Exhibit "B"; and
WHEREAS, Congoleum and the Collateral Trustee have agreed to terminate the
Security Agreement, the Second Security Agreement, and any security interest
created thereunder and all the Collateral Trustee's rights thereunder; and
WHEREAS, Congoleum and the Collateral Trustee have agreed to terminate all
UCC -1 Financing Statements filed in respect of the security interests granted
under the Security Agreement, the Second Security Agreement, or otherwise; and
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and intending to be legally bound hereby, Congoleum and Collateral Trustee agree
as follows:
AGREEMENT
1. Congoleum and the Collateral Trustee hereby terminate the Security
Agreement, the Second Security Agreement, and all rights and interests granted
thereunder are null and void effective as of the date hereof.
2. Within five (5) business days of the execution of this Termination
Agreement, the Collateral Trustee shall execute and file UCC-3 Termination
Statements in all jurisdictions in which UCC-1 Financing Statements were filed
in respect of the Security Agreement and the Second Security Agreement.
3. The Collateral Trustee shall deliver to Congoleum promptly such UCC-3
Termination Statements and take such other action or refrain from taking any
other action as Congoleum may request to effectuate the termination of the
Security Agreement, the Second Security Agreement, and the perfection of any
security interest granted to the Collateral Trust thereunder or otherwise.
4. Successors and Assigns. This Termination Agreement and all agreements,
instruments and documents executed and delivered pursuant hereto or to
consummate the transactions contemplated hereunder shall be binding upon and
inure to the benefit of the successors and assigns of the parties hereto.
5. Construction. This Termination Agreement was negotiated between the
parties hereto at arm's length, with each party receiving advice from
independent legal counsel. It is the intent of the parties that no part of this
Termination Agreement be construed against any particular party because of the
identity of the drafter. This Termination Agreement supersedes any prior
understandings and agreements between or among the parties with respect to the
subject matter of the Security Agreement and the Second Security Agreement.
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6. Effective Date. The effective date of this Termination Agreement shall
be the date on which Congoleum and the Collateral Trustee have signed and
delivered the Termination Agreement.
7. Notice. All notices hereunder shall be in writing and shall be deemed
to have been sufficiently given or served for all purposes (if mailed) three (3)
calendar days after being deposited, postage prepaid, in the United States Mail,
registered or certified mail, or (if delivered by express courier) one (1)
business day after being delivered to such courier, or (if delivered in person
or via facsimile with faxed confirmation) the same day as delivery if delivered
on a business day before 4:30 p.m. EST or EDT (as applicable) or if not so
delivered, on the next succeeding business day, except with respect to notices
issued to the Collateral Trustee, such notices shall be deemed received on the
date actually received by the Collateral Trustee. Notice to the Claimants'
Counsel shall be deemed notice to each Asbestos Claimant. Notices shall be
addressed as follows:
Congoleum:
Xxxxx Xxxxxx
Congoleum Corporation
0000 Xxxxxxxxxxxx Xxxx
X.X. Xxx 0000
Xxxxxxxxxxx, XX 00000
(000) 000-0000 - Telephone No.
(000) 000-0000 - Facsimile No.
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With copies to:
Xxxxx Xxx, Esq.
Xxxxxxx, Xxxxxx & Xxxxxxxx LLP
0000 Xxx Xxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxxx, XX 00000
(000) 000-0000 - Telephone No.
(000) 000-0000 - Facsimile No.
Xxxxxx X. Xxxxxxx, Esq.
Xxxx Xxxxx LLP
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxx, XX 00000
(000) 000-0000 - Telephone No.
(000) 000-0000 - Facsimile No.
Xxxx Xxxxx, Esq.
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxx Xxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxxx, XX 00000
(000) 000-0000 - Telephone No.
(000) 000-0000 - Facsimile No.
Collateral Trustee:
Xxxxxx Xxxxxxxxx
Xxxxxxxxx Advisors
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
(000) 000-0000
(000) 000-0000
Claimants' Counsel:
Xxxxx Xxxxx, Esq.
Xxxxx & Xxxxxxxxx
000 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
(000) 000-0000 - Telephone No.
(000) 000-0000 - Facsimile No.
Xxxxxx X. Xxxx, Esq.
00 Xxxxxxxxxx Xxxxxxxxx
X.X. Xxx 0000
Xx. Xxxxxxxx, XX 00000
(000) 000-0000 - Telephone No.
(000) 000-0000 - Facsimile No.
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8. Governing Law. All disputes concerning the validity, interpretation and
application of the Termination Agreement or any provisions thereof, and disputes
concerning issues within the scope of the Termination Agreement shall be
determined in accordance with the law of the State of Delaware, excluding any
conflict of law provisions.
9. Miscellaneous.
A. Each party shall take such steps and shall execute such documents as
reasonably may be necessary or proper to effectuate the purpose and intent of
this Termination Agreement.
B. This Termination Agreement shall be executed in duplicate originals and
signed by or on behalf of the parties hereto.
C. This Termination Agreement may be executed in any number of
counterparts. Each of such counterparts for all purposes shall be deemed to be
an original, and all such counterparts together shall constitute but one and the
same Termination Agreement.
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IN WITNESS WHEREOF, the parties have caused this Termination Agreement to
be duly executed this 6th day of June 2003.
CONGOLEUM CORPORATION
By: /s/ Xxxxxx X. Xxxxx III
---------------------------------------
Title: CFO
-------------------------------------
COLLATERAL TRUSTEE
By:
---------------------------------------
Xxxxxx X. Xxxxxxxxx
Title: _____________________________________
CONSENT:
By their signatures below, Claimants' Counsel, as designated in the
Settlement Agreement Between Congoleum Corporation And Various Asbestos
Claimants, indicate their consent to the Collateral Trustee's execution of this
Termination Agreement.
--------------------------------
Xxxxx Xxxxx, Esq.
--------------------------------
Xxxxxx X. Xxxx, Esq.
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IN WITNESS WHEREOF, the parties have caused this Termination Agreement to
be duly executed this ___ day of June 2003.
CONGOLEUM CORPORATION
By:
---------------------------------------
Title:
-------------------------------------
COLLATERAL TRUSTEE
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxxxx
Title: _____________________________________
CONSENT:
By their signatures below, Claimants' Counsel, as designated in the
Settlement Agreement Between Congoleum Corporation And Various Asbestos
Claimants, indicate their consent to the Collateral Trustee's execution of this
Termination Agreement.
--------------------------------
Xxxxx Xxxxx, Esq.
--------------------------------
Xxxxxx X. Xxxx, Esq.
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IN WITNESS WHEREOF, the parties have caused this Termination Agreement to
be duly executed this ___ day of June 2003.
CONGOLEUM CORPORATION
By:
---------------------------------------
Title:
-------------------------------------
COLLATERAL TRUSTEE
By:
---------------------------------------
Xxxxxx X. Xxxxxxxxx
Title: _____________________________________
CONSENT:
By their signatures below, Claimants' Counsel, as designated in the
Settlement Agreement Between Congoleum Corporation And Various Asbestos
Claimants, indicate their consent to the Collateral Trustee's execution of this
Termination Agreement.
/s/ Xxxxx Xxxxx
--------------------------------
Xxxxx Xxxxx, Esq.
/s/ Xxxxxx X. Xxxx
--------------------------------
Xxxxxx X. Xxxx, Esq.
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