Exhibit 4.2.3
EXECUTION COPY
INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE, dated as of
December 14, 2005 (this "Instrument"), among CONGOLEUM CORPORATION, a
corporation duly organized and existing under the laws of the State of Delaware,
having its principal office at 0000 Xxxxxxxxxxxx Xxxx, Xxxxxxxxxxx, Xxx Xxxxxx
00000 (the "Issuer"), WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking
association duly organized and existing under the laws of the United States,
having its corporate trust office at 000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, as resigning Trustee (the "Resigning Trustee"),
and HSBC BANK USA, NATIONAL ASSOCIATION, a national banking association duly
organized and existing under the laws of the United States, having its corporate
trust office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as successor Trustee
(the "Successor Trustee").
RECITALS
WHEREAS, there are presently outstanding under an Indenture, dated
as of August 3, 1998, as supplemented by the First Supplemental Indenture, dated
as of March 28, 2003, and as further supplemented by a Second Supplemental
Indenture, dated as of August 3, 2003 between the Issuer and the Resigning
Trustee (the "Indenture"),
(i) $100,000,000 in aggregate principal amount of the Issuer's 8
5/8% Senior Notes due 2008(the Notes"), issued pursuant to the Indenture.
WHEREAS, the Resigning Trustee wishes to resign as Trustee,
Registrar and Paying Agent (the "Agent") under the Indenture; the Issuer wishes
to appoint the Successor Trustee to succeed the Resigning Trustee as Trustee,
Registrar and Paying Agent under the Indenture; and the Successor Trustee wishes
to accept appointment as Trustee, Registrar,and Paying Agent under the
Indenture.
NOW, THEREFORE, in consideration of the mutual covenants and
promises herein, the receipt and sufficiency of which are hereby acknowledged,
the Issuer, the Resigning Trustee and the Successor Trustee agree as follows:
ARTICLE ONE
THE RESIGNING TRUSTEE
Section 101. Pursuant to Section 6.10 of the Indenture, the
Resigning Trustee hereby notifies the Issuer that the Resigning Trustee is
hereby resigning as Trustee 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) $100,000,000.00 in aggregate principal amount of the Notes are
outstanding.
(e) Interest on the Notes has been paid through August 1, 2003.
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 and trusts of the Resigning Trustee under the Indenture and all property
and money held or to be held under the Indenture, with like effect as if the
Successor Trustee was originally named as 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 and trusts hereby assigned, transferred, delivered and confirmed
to the Successor Trustee.
Section 104. The Resigning Trustee hereby resigns as Security
Registrar, Agent and Paying Agent under the Indenture.
Section 105. The Resigning Trustee shall deliver to the Successor
Trustee, as of or immediately after the effective date hereof, all property held
by it as Trustee under the Indenture and all of the documents listed on Exhibit
A hereto.
ARTICLE TWO
THE ISSUER
Section 201. The Issuer hereby certifies that Exhibit B annexed
hereto is a copy of the resolutions which were duly adopted by the Board of
Directors of the Issuer, which are in full force and effect on the date hereof,
and which authorize certain officers of the Issuer to: (a) accept the Resigning
Trustee's resignation as Trustee, Security Registrar, Agent and Paying Agent
under the Indenture; (b) appoint the Successor Trustee as Trustee, Security
Registrar, Agent and Paying Agent under the Indenture; and (c) execute and
deliver such agreements and other instruments as may be necessary to effectuate
the succession of the Successor Trustee as Trustee, Security Registrar, Agent
and Paying Agent under the Indenture.
Section 202. The Issuer hereby accepts the resignation of the
Resigning Trustee as Trustee, Registrar and Paying Agent under the Indenture.
Pursuant to Section 6.10 of the Indenture, the Issuer hereby appoints the
Successor Trustee as Trustee under the Indenture and confirms to the Successor
Trustee all the rights, powers and trusts of the Resigning Trustee under the
Indenture and with respect to all property and money held or to be held under
the Indenture, with like effect as if the Successor Trustee was originally named
as Trustee under the Indenture. The Issuer shall execute and deliver such
agreements and other instruments as may be necessary to effectuate the
succession of the Successor Trustee as Trustee, Registrar and Paying Agent under
the Indenture.
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Section 203. The Issuer hereby represents and warrants to the
Successor Trustee and the Resigning Trustee that:
(a) The Indenture has not been amended or modified except as set
forth herein.
(b) The Issuer is a corporation duly incorporated and validly
existing under the laws of the State of Delaware.
(d) No event has occurred and is continuing which is, or after
notice or lapse of time would become, an Event of Default
under the Indenture other than the Issuer commencing a
voluntary Chapter 11 Bankruptcy filing and failing to pay
interest due since February 1, 2004.
(e) No covenant or condition contained in the Indenture has been
waived by the Holders of a majority in aggregate principal
amount of the Notes required to effect any such waiver.
(f) This Instrument has been duly authorized, executed and
delivered on behalf of the Issuer.
Section 204. The Issuer hereby appoints the Successor Trustee as
Security Registrar, Agent and Paying Agent under the Indenture.
ARTICLE THREE
THE SUCCESSOR TRUSTEE
Section 301. The Successor Trustee hereby represents and warrants to
the Resigning Trustee and the Issuer that:
(a) The Successor Trustee is eligible under the provisions of
Section 6.9 of the Indenture to act as Trustee under the
Indenture.
(b) This Instrument has been duly authorized, executed and
delivered on behalf of the Successor Trustee.
Section 302. Pursuant to Section 6.11 of the Indenture, the
Successor Trustee hereby accepts its appointment as Trustee under the Indenture
and shall hereby be vested with all the rights, powers and trusts of the
Resigning Trustee under the Indenture and with respect to all property and money
held or to be held under the Indenture, with like effect as if the Successor
Trustee was originally named as Trustee under the Indenture
Section 303. The Successor Trustee hereby accepts its appointment as
Registrar and Paying Agent under the Indenture.
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Section 304. Promptly after the execution and delivery of this
Instrument, the Successor Trustee, on behalf of the Issuer, shall cause a
notice, the form of which is annexed hereto marked Exhibit C, to be sent to each
Holder of the Notes in accordance with Section 6.11of the Indenture.
ARTICLE FOUR
MISCELLANEOUS
Section 401. Except as otherwise expressly provided or unless the
context otherwise requires, all capitalized terms used herein which are defined
in the Indenture shall have the meanings assigned to them in the Indenture.
Section 402. The resignation of the Resigning Trustee as Registrar
and Paying Agent under the Indenture, and the appointment of the Successor
Trustee in such capacities, shall each be effective upon the entering by the
Court of an order so confirming such resignation and appointment.
Section 403. Notwithstanding the resignation of the Resigning
Trustee effected hereby, the Resigning Trustee shall be entitled to
compensation, reimbursement and indemnification to the extent provided under
Section 6.6 of the Indenture in connection with its prior trusteeship under the
Indenture. The Successor Trustee shall also be entitled to compensation,
reimbursement and indemnification as set forth in Section 6.6 of the Indenture,
which rights and 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.
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:
Xx. Xxxxx Xxxxxx
Vice President
Wachovia Bank, National Association
Corporate Trust Advisory Services
NC 1179
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Fax: (000) 000-0000
Tel.: (000) 000-0000
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TO THE SUCCESSOR TRUSTEE:
Mr. Xxxxxx Xxxxxx
Vice President
Mailing Address:
Corporate Trust and Loan Agency
HSBC Bank USA, National Association
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Courier Deliveries:
Corporate Trust and Loan Agency
HSBC Bank USA, National Association
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Tel.: (000) 000-0000
TO THE ISSUER:
Congoleum Corporation
0000 Xxxxxxxxxxxx Xxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Chief Financial Officer
Fax: (000) 000-0000
[Remainder of Page Intentionally Left Blank]
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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.
CONGOLEUM CORPORATION
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Resigning Trustee
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
HSBC BANK USA, NATIONAL ASSOCIATION,
as Successor Trustee
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
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EXHIBIT A
Documents to be delivered to the Successor Trustee by the Resigning Trustee
1. Executed copy of the Indenture.
2. File of closing documents.
3. Copy of the most recent of each of the SEC reports delivered by the Issuer
pursuant to the Indenture.
4. Copies of the most recent Compliance Certificate delivered pursuant to the
Indenture.
5. Copies of any official notices sent by the Trustee to all the Holders of
the Notes pursuant to the terms of the Indenture during the past twelve
months and a copy of the most recent Trustee's Annual Report to Holders,
if any.
6. Certified List of Holders as of the date of this Instrument, certificate
detail and all "stop transfers" and the reason for such "stop transfers"
(or, alternatively, if there are a substantial number of registered
Holders, the computer tape reflecting the identity, address, tax
identification number and detailed holdings of each such Holder).
7. Notes debt service records.
8. Trust account statements for a one-year period preceding the date of this
Instrument.
9. All unissued Notes inventory or DTC FAST held global certificates.
10. Such other documents as the Successor Trustee may reasonably require in
connection with its appointment.
EXHIBIT B
CERTIFIED COPY OF RESOLUTIONS
OF THE BOARD OF DIRECTORS OF
CONGOLEUM CORPORATION
The undersigned, Xxxxxx X. Xxxxx, hereby certifies that he/she is
the duly appointed, qualified and acting Secretary of Congoleum Corporation, a
corporation duly organized and validly existing under the laws of the State of
Delaware (the "Company"), and further certifies that the following is a true and
correct copy of certain resolutions duly adopted by the Board of Directors of
said Company on December 12, 2005 and that said resolutions have not been
amended, modified or rescinded:
"RESOLVED, that the Company appoint HSBC Bank USA, National
Association (the "Successor Trustee") as successor Trustee, Security
Registrar the office or agency where notices and demands to or upon
the Company in respect of the Securities (as defined below) and of
the Indenture (as defined below) may be served (the "Agent") and
Paying Agent under the Indenture, dated as of August 3, 1998, as
amended (as so amended, the "Indenture"), between the Company and
Wachovia Bank, National Association (the "Resigning Trustee"), as
Trustee, pursuant to which the Company issued $100,000,000 in
aggregate principal amount of its 8.625% Senior Notes due 2008
(together, the "Securities"); and that the Company accept the
resignation of the Resigning Trustee as Trustee, Security Registrar,
Agent and Paying Agent under the Indenture, such resignation to be
effective upon the execution and delivery by the Successor Trustee
to the Company of an instrument or instruments accepting such
appointment as successor Trustee, Security Registrar, Agent and
Paying Agent under the Indenture; and it is further
RESOLVED, any officer of the Company be, and each of them hereby is,
authorized, empowered and directed to execute and deliver in the
name and on behalf of the Company an instrument or instruments
appointing the Successor Trustee as the successor Trustee, Security
Registrar, Agent and Paying Agent; and it is further
RESOLVED, that the proper officers of the Company are hereby
authorized, empowered and directed to do or cause to be done all
such acts or things, and to execute and deliver, or cause to be
executed or delivered, any and all such other agreements,
amendments, instruments, certificates, documents or papers
(including, without limitation, any and all notices and certificates
required or permitted to be given or made on behalf of the Company
to the Successor Trustee or to the Resigning Trustee), under the
terms of any of the executed instruments in connection with the
resignation of the Resigning Trustee, and the appointment of the
Successor Trustee, in the name and on behalf of the Company as any
of such officers, in his/her discretion, may deem necessary or
advisable to effectuate or carry out the purposes and intent of the
foregoing resolutions; and to exercise any of the Company's
obligations under the instruments and agreements executed on behalf
of the Company in connection with the resignation of the Resigning
Trustee and the appointment of the Successor Trustee."
IN WITNESS WHEREOF, I have hereunto set my hand as Secretary and have
affixed the seal of the Company this 14th day of December, 2005.
By: /s/ Xxxxxx X. Xxxxx
----------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
[SEAL]
EXHIBIT C
Notice to Holders of Congoleum Corporation (the "Issuer") 8.625% Senior Notes
due 2008 (the "Notes"):
We hereby notify you of the resignation of Wachovia Bank, National
Association as Trustee under the Indenture, dated as of August 3, 1998, as
amended (as amended, the "Indenture"), pursuant to which your Notes were issued
and are outstanding.
The Issuer has appointed HSBC Bank USA, National Association, whose
corporate trust office is located at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Corporate Trust and Loan Agency (courier deliveries: 00 Xxxx 00xx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 10016), as successor Trustee under the
Indenture, which appointment has been accepted and has become effective.
HSBC BANK USA, NATIONAL ASSOCIATION,
Successor Trustee
Date: December 12, 2005
