EXHIBIT 4.5.1
FIRST SUPPLEMENTAL INDENTURE
CONGOLEUM CORPORATION,
Issuer,
and
WACHOVIA BANK, NATIONAL ASSOCIATION
(as successor to First Union National Bank),
as Trustee
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First Supplemental Indenture
Dated as of March 28, 2003
to the Indenture dated as of August 3, 1998
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$100,000,000
8 5/8% Senior Notes Due 2008
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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
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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;
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(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.
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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]
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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
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Name: Xxxxxx X. Xxxxx
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:
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Name:
Title:
(SEAL)
Attest:
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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:
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Name:
Title:
Attest:
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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:
[SIGNATURE ILLEGIBLE]
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