Exhibit 99.2
EXHIBIT D TO THE PLAN
CONGOLEUM PLAN TRUST AGREEMENT
EXHIBIT D TO THE PLAN
CONGOLEUM PLAN TRUST AGREEMENT
TABLE OF CONTENTS
Page
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SECTION 1 AGREEMENT OF TRUST...................................................2
1.1 Creation and Name.....................................................2
1.2 Purpose...............................................................2
1.3 Transfer of Assets....................................................2
1.4 Acceptance of Assets and Assumption of Liabilities....................2
SECTION 2 POWERS AND TRUST ADMINISTRATION......................................4
2.1 Powers................................................................4
2.2 General Administration................................................6
2.3 Claims Administration.................................................9
SECTION 3 ACCOUNTS, INVESTMENTS, AND PAYMENTS..................................9
3.1 Accounts..............................................................9
3.2 Plan Trust Disputed Claims Reserve....................................9
3.3 Investments..........................................................10
3.4 Source of Payments...................................................12
SECTION 4 PLAN TRUSTEES.......................................................14
4.1 Number...............................................................14
4.2 Term of Service......................................................14
4.3 Appointment of Successor Trustees....................................14
4.4 Liability of Plan Trustees, Officers and Employees...................15
4.5 Compensation and Expenses of Plan Trustees...........................15
4.6 Indemnification of Plan Trustees and Additional Indemnitees..........15
4.7 Plan Trustees' Lien..................................................16
4.8 Plan Trustees' Employment of Experts.................................16
4.9 Plan Trustees' Independence..........................................16
4.10 Bond.................................................................16
SECTION 5 PLAN TRUST ADVISORY COMMITTEE.......................................16
5.1 Members..............................................................16
5.2 Duties...............................................................16
5.3 Consent of TAC With Respect to Pre-Petition Settlement Agreements....17
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5.4 Term of Office.......................................................17
5.5 Appointment of Successor.............................................17
5.6 TAC's Employment of Professionals....................................18
5.7 Compensation and Expenses of the TAC.................................18
5.8 Procedures for Consultation With and Obtaining the Consent of
the TAC..............................................................19
SECTION 6 THE FUTURES REPRESENTATIVE..........................................20
6.1 Duties...............................................................20
6.2 Term of Office.......................................................20
6.3 Appointment of Successor.............................................20
6.4 Futures Representative's Employment of Professionals.................20
6.5 Compensation and Expenses of the Futures Representative..............21
6.6 Procedures for Consultation with and Obtaining the Consent of the
Futures Representative...............................................22
SECTION 7 GENERAL PROVISIONS..................................................23
7.1 Irrevocability.......................................................23
7.2 Termination..........................................................23
7.3 Amendments...........................................................24
7.4 Meetings.............................................................24
7.5 Severability.........................................................24
7.6 Notices..............................................................24
7.7 Successors and Assigns...............................................26
7.8 Limitation on Claim Interests for Securities Laws Purposes...........26
7.9 Entire Agreement; No Waiver..........................................26
7.10 Headings.............................................................26
7.11 Governing Law........................................................26
7.12 Settlor Representative and Cooperation...............................26
7.13 Dispute Resolution...................................................26
7.14 Enforcement and Administration.......................................27
7.15 Effectiveness........................................................27
7.16 Counterpart Signatures...............................................27
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EXHIBIT D TO THE PLAN
CONGOLEUM PLAN TRUST AGREEMENT
This Congoleum Plan Trust Agreement (this "Plan Trust Agreement"), dated
the date set forth on the signature page hereof and effective as of the
Effective Date, is entered into by Congoleum Corporation, Congoleum Sales, Inc.,
and Congoleum Fiscal, Inc. (collectively referred to as the "Debtors,"
"Congoleum," or the "Settlors"), the debtors and debtors-in-possession in Case
No. 03-51524 in the United States Bankruptcy Court for the District of New
Jersey; the Futures Representative; the Asbestos Claimants Committee ("ACC");
the Plan Trustees and the members of the Trust Advisory Committee ("TAC")
identified on the signature page hereof and appointed at Confirmation pursuant
to the Eighth Modified Joint Plan of Reorganization Under Chapter 11 of the
Bankruptcy Code of Congoleum Corporation, et al., dated as of March 17, 2006
(the "Plan"), as such Plan may be amended, modified or supplemented from time to
time. All capitalized terms not otherwise defined herein shall have their
respective meanings as set forth in the Plan, and such definitions are
incorporated herein by reference. All capitalized terms not defined herein or
defined in the Plan, but defined in the Bankruptcy Code or Bankruptcy Rules,
shall have the meanings ascribed to them by the Bankruptcy Code and Bankruptcy
Rules, and such definitions are incorporated herein by reference.
WHEREAS, at the time of the entry of the order for relief in the Chapter
11 case, Congoleum was named as a defendant in actions seeking recovery for
damages allegedly caused by the presence of or exposure to asbestos or
asbestos-containing products for which Congoleum, its predecessors, successors
and assigns have legal liability ("Plan Trust Asbestos Claims" as defined in the
Plan); and
WHEREAS, Congoleum has reorganized under the provisions of Chapter 11 of
the Bankruptcy Code in a case pending in the United States Bankruptcy Court for
the District of New Jersey, known as In re Congoleum Corporation et al.,
Debtors, Case No. 03-51524; and
WHEREAS, the Plan has been confirmed by the Bankruptcy Court; and
WHEREAS, the Plan provides, inter alia, for the creation of the Plan
Trust; and
WHEREAS, pursuant to the Plan, the Plan Trust is to use its assets and
income to satisfy all Plan Trust Asbestos Claims; and
WHEREAS, it is the intent of Congoleum, the Plan Trustees, the ACC, the
TAC, and the Futures Representative that the Plan Trust be administered,
maintained, and operated at all times through mechanisms that provide reasonable
assurance that the Plan Trust will satisfy all Plan Trust Asbestos Claims
pursuant to this Plan Trust Agreement and the TDP that is attached hereto as
Exhibit A in substantially the same manner, and in strict compliance with the
terms of this Plan Trust Agreement; and
WHEREAS, pursuant to the Plan, the Plan Trust is intended to qualify as a
"qualified settlement fund" within the meaning of section 1.468B-1 et seq. of
the Treasury Regulations promulgated under section 468B of the Internal Revenue
Code ("IRC"); and
EXHIBIT D TO THE PLAN
WHEREAS, the Bankruptcy Court has determined that the Plan Trust and the
Plan satisfy all the prerequisites for an injunction pursuant to section 524(g)
of the Bankruptcy Code, and such injunction has been entered in connection with
the Confirmation Order;
NOW, THEREFORE, it is hereby agreed as follows:
SECTION 1
AGREEMENT OF TRUST
1.1 Creation and Name. The Debtors as Settlors hereby create a trust known
as the "Congoleum Plan Trust," which is the Plan Trust provided for and referred
to in the Plan. The Plan Trustees may transact the business and affairs of the
Plan Trust in the name of the Plan Trust.
1.2 Purpose. The purpose of the Plan Trust is to assume the liabilities of
Congoleum, its predecessors and successors in interest, for all Plan Trust
Asbestos Claims, and to use the Plan Trust's assets and income to pay the
holders of all Plan Trust Asbestos Claims in accordance with this Plan Trust
Agreement and the TDP in such a way that such holders of Plan Trust Asbestos
Claims are treated fairly, equitably and reasonably in light of the limited
assets available to satisfy such claims, and to otherwise comply in all respects
with the requirements of a trust set forth in section 524(g)(2)(B) of the
Bankruptcy Code. All Plan Trust Asbestos Claims (other than the Asbestos
Property Damage Claims and the ABI Asbestos Personal Injury Indemnity Claims)
shall be determined, liquidated, and paid pursuant to this Plan Trust Agreement
and the TDP. Asbestos Property Damage Claims shall be determined pursuant to the
Plan and paid, if Allowed, pursuant to this Plan Trust Agreement. The ABI
Asbestos Personal Injury Indemnity Claims shall be determined and liquidated
pursuant to the Plan, and paid, if Allowed, pursuant to the Plan and the TDP. In
addition, the Plan Trust shall prosecute, settle and manage the disposition of
the Asbestos In-Place Insurance Coverage and prosecute, settle and manage
Asbestos Insurance Actions and Direct Actions.
1.3 Transfer of Assets. Pursuant to the Plan, the Plan Trust Assets have
been transferred and assigned to the Plan Trust to settle and discharge all Plan
Trust Asbestos Claims. Any insurance proceeds subject to the Security Agreement
and/or the Collateral Trust Agreement are transferred and assigned to and
assumed by the Plan Trust subject to any lien and/or security interests
reflected in such agreements, in the event that such Agreements are found valid,
enforceable and unavoidable by a final nonappealable order of a court of
competent jurisdiction, or by a settlement agreement approved by the Bankruptcy
Court. Pursuant to the Plan, Reorganized Congoleum and others may also transfer
and assign additional assets to the Plan Trust from time to time. In all events,
such assets will be transferred to the Plan Trust free and clear of any liens or
other claims by Congoleum, Reorganized Congoleum, any creditor, or other entity.
Congoleum, Reorganized Congoleum, and any other transferors shall also execute
and deliver such documents to the Plan Trust as the Plan Trustees reasonably
request to transfer and assign the Plan Trust Assets to the Plan Trust.
1.4 Acceptance of Assets and Assumption of Liabilities.
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(a) In furtherance of the purposes of the Plan Trust, the Plan Trustees,
on behalf of the Plan Trust, hereby expressly accept the transfer and assignment
to the Plan Trust of the Plan Trust Assets in the time and manner as
contemplated in the Plan Documents.
(b) In furtherance of the purposes of the Plan Trust, the Plan Trustees,
on behalf of the Plan Trust, expressly assume all liabilities, obligations and
responsibilities relating to all Plan Trust Asbestos Claims and Asbestos
Expenses. Except as otherwise provided in this Plan Trust Agreement and the TDP,
the Plan Trust shall have all defenses, cross-claims, offsets, and recoupments,
as well as rights of indemnification, contribution, subrogation, and similar
rights, regarding such claims that Congoleum or Reorganized Congoleum has or
would have had under applicable law. Regardless of the foregoing, however, a
claimant must meet otherwise applicable federal, state and foreign statutes of
limitations and repose, except that a claimant may establish that such statutes
were tolled pursuant to a pre-petition settlement agreement with Congoleum, or
otherwise by operation of law.
(c) No provision herein or in the TDP shall be construed to mandate
distributions on any claims or other actions that would contravene the Plan
Trust's compliance with the requirements of a qualified settlement fund within
the meaning of section 1.468B-1 et seq. of the Treasury Regulations promulgated
under section 468B of the IRC.
(d) The Plan Trust shall indemnify, defend and hold harmless each of the
Debtors, the Reorganized Debtors and their past, present and future
Representatives for any expenses, costs and fees (including reasonable
attorneys' fees and costs, but excluding any such expenses, costs and fees
incurred prior to the Effective Date), judgments, settlements or other
liabilities arising from or incurred in connection with, any Plan Trust Asbestos
Claim, including but not limited to indemnification or contribution for Plan
Trust Asbestos Claims prosecuted against the Reorganized Debtors after the
Effective Date but excluding (i) any amounts paid prior to or on the Effective
Date by the Debtors or their past or present Representatives, (ii) any amounts
paid or incurred by any Reorganized Debtor or its Representatives, whether
before or after the Effective Date, in connection with defending, objecting to,
or otherwise related to any proceedings to determine whether an Asbestos
Property Damage Claim is or should be Allowed and (iii) any amounts paid or
incurred by any Reorganized Debtor or its Representatives after the Effective
Date in connection with a proceeding under Section 7.5 of the Plan.
Notwithstanding anything in this Section 1.4 to the contrary, the Plan Trust
shall reimburse and pay promptly the Reorganized Debtors, from the proceeds of
Asbestos Insurance Action Recoveries, for Coverage Costs and the Claims Handling
Fee to the extent that such Coverage Costs and Claims Handling Fee have not been
reimbursed or paid to the Debtors or Reorganized Debtors, as applicable, from
Asbestos Insurance Action Recoveries received on or after the Petition Date. -
Asbestos Insurance Action Recoveries shall not be reserved for the payment of
Coverage Costs not yet incurred or not yet payable under the terms of this
Section 1.4(d). - Coverage Costs shall be paid out of any Asbestos Insurance
Action Recoveries after the date when such Coverage Costs are or become payable
hereunder.
(e) Nothing in this Plan Trust Agreement shall be construed in any way to
limit the scope, enforceability, or effectiveness of the Injunctions issued in
connection with the Plan or the Plan Trust's assumption of all liability for
Plan Trust Asbestos Claims, subject to the provisions of Section 1.4(b) above.
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SECTION 2
POWERS AND TRUST ADMINISTRATION
2.1 Powers.
(a) The Plan Trustees are and shall act as the fiduciaries to the Plan
Trust in accordance with the provisions of this Plan Trust Agreement and the
Plan. The Plan Trustees shall, at all times, administer the Plan Trust and the
Plan Trust Assets in accordance with the purposes set forth in Section 1.2
above. Subject to the limitations set forth in this Plan Trust Agreement, the
Plan Trustees shall have the power to take any and all actions that, in the
judgment of the Plan Trustees, are necessary or proper to fulfill the purposes
of the Plan Trust, including, without limitation, each power expressly granted
in this Section 2.1, any power reasonably incidental thereto, and any trust
power now or hereafter permitted under the laws of the State of New Jersey.
(b) Except as required by applicable law or otherwise specified herein,
the Plan Trustees need not obtain the order or approval of any court in the
exercise of any power or discretion conferred hereunder.
(c) Without limiting the generality of Section 2.1(a) above, and except as
limited below, the Plan Trustees shall have the power to:
(i) receive and hold the Plan Trust assets, vote the New Class A
Common Stock, and exercise all rights with respect to, and sell, any
securities issued by Reorganized Congoleum that are included in the Plan
Trust assets, subject to any restrictions set forth in the Amended and
Restated Certificate of Incorporation of Reorganized Congoleum;
(ii) invest the monies held from time to time by the Plan Trust;
(iii) sell, transfer, or exchange any or all of the Plan Trust
Assets at such prices and upon such terms as the Plan Trustees may
consider proper, consistent with the other terms of this Plan Trust
Agreement;
(iv) enter into leasing and financing agreements with third parties
to the extent such agreements are reasonably necessary to permit the Plan
Trust to operate;
(v) pay liabilities and expenses of the Plan Trust, including, but
not limited to, Plan Trust Expenses;
(vi) establish such funds, reserves and accounts within the Plan
Trust estate, as deemed by the Plan Trustees to be useful in carrying out
the purposes of the Plan Trust;
(vii) ▇▇▇ and be sued and participate, as a party or otherwise, in
any judicial, administrative, arbitrative, or other proceeding;
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(viii) establish, supervise and administer the Plan Trust in
accordance with the TDP and the terms thereof;
(ix) appoint such officers and hire such employees and engage such
legal, financial, accounting, investment, auditing and forecasting, and
other consultants and agents as the business of the Plan Trust requires,
and delegate to such persons such powers and authorities as the fiduciary
duties of the Plan Trustees permit and as the Plan Trustees, in their
discretion, deem advisable or necessary in order to carry out the terms of
the Plan Trust;
(x) pay employees, legal, financial, accounting, investment,
auditing, and forecasting, and other consultants, advisors, and agents,
including those engaged by the Plan Trust in connection with its
alternative dispute resolution activities, reasonable compensation;
(xi) compensate the Plan Trustees, the TAC members, and the Futures
Representative as provided below, and their employees, legal, financial,
accounting, investment and other advisors, consultants, independent
contractors, and agents, and reimburse the Plan Trustees, the TAC members
and the Futures Representative all reasonable out-of-pocket costs and
expenses incurred by such persons in connection with the performance of
their duties hereunder;
(xii) execute and deliver such instruments as the Plan Trustees
consider proper in administering the Plan Trust;
(xiii)enter into such other arrangements with third parties as are
deemed by the Plan Trustees to be useful in carrying out the purposes of
the Plan Trust, provided such arrangements do not conflict with any other
provision of this Plan Trust Agreement;
(xiv) in accordance with Section 4.6 below, defend, indemnify and
hold harmless (and purchase insurance indemnifying) (A) the Plan Trustees
and (B) the TAC, the Futures Representative, the officers and employees of
the Plan Trust, and any agents, advisors and consultants of the Plan
Trust, the TAC or the Futures Representative (the "Additional
Indemnitees"), to the fullest extent that a corporation or trust organized
under the law of the Plan Trust's situs is from time to time entitled to
indemnify and/or insure its directors, trustees, officers, employees,
agents, and representatives;
(xv) indemnify the Entities to be indemnified in accordance with
Section 1.4 and Section 4.6 and purchase insurance or make other such
arrangements for the Plan Trust and those Entities for whom the Plan Trust
has an indemnification obligation hereunder;
(xvi) delegate any or all of the authority herein conferred with
respect to the investment of all or any portion of the Plan Trust Assets
to any one or more reputable individuals or recognized institutional
investment advisors or investment managers without liability for any
action taken or omission made because of any such delegation, except as
provided in Section 4.4 below;
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(xvii)consult with Reorganized Congoleum, the TAC and the Futures
Representative at such times and with respect to such issues relating to
the conduct of the Plan Trust as the Plan Trustees consider desirable; and
(xviii) make, pursue (by litigation or otherwise), collect,
compromise or settle, in the name of the Plan Trust or the name of
Reorganized Congoleum, any claim, right, action, or cause of action
included in the Plan Trust Assets, including, but not limited to,
insurance recoveries, before any court of competent jurisdiction; provided
that settlement of actions before the Bankruptcy Court require the
approval of the Bankruptcy Court after notice to Reorganized Congoleum.
(d) The Plan Trustees shall not have the power to guarantee any debt of
other persons.
(e) The Plan Trustees shall give the TAC, the Futures Representative and
Reorganized Congoleum prompt notice of any act performed or taken pursuant to
Sections 2.1(c)(i), (iii), (vii), or (xv) above, and any act proposed to be
performed or taken pursuant to Section 2.2(f) below.
2.2 General Administration.
(a) The Plan Trustees shall adopt and act in accordance with the Plan
Trust Bylaws. To the extent not inconsistent with the terms of this Plan Trust
Agreement, the Plan Trust Bylaws shall govern the affairs of the Plan Trust. In
the event of an inconsistency between the Plan Trust Bylaws and this Plan Trust
Agreement, this Plan Trust Agreement shall govern.
(b) The Plan Trustees shall (i) timely file such income tax and other
returns and statements and shall timely pay all taxes required to be paid, (ii)
comply with all withholding obligations, as required under the applicable
provisions of the IRC and of any state law and the regulations promulgated
thereunder, (iii) meet without limitation all requirements necessary to qualify
and maintain qualification of the Plan Trust as a qualified settlement fund
within the meaning of section 1.468B-1 et seq. of the Treasury Regulations
promulgated under section 468B of the IRC, and (iv) take no action that could
cause the Plan Trust to fail to qualify as a qualified settlement fund within
the meaning of section 1.468B-1 et seq. of the Treasury Regulations promulgated
under section 468B of the IRC.
(c) The Plan Trustees shall timely account to the Bankruptcy Court as
follows:
(i) The Plan Trustees shall cause to be prepared and filed with the
Bankruptcy Court, as soon as available, and in any event within one
hundred and twenty (120) days following the end of each fiscal year, an
annual report containing financial statements of the Plan Trust
(including, without limitation, a balance sheet of the Plan Trust as of
the end of such fiscal year and a statement of operations for such fiscal
year) audited by a firm of independent certified public accountants
selected by the Plan Trustees and accompanied by an opinion of such firm
as to the fairness of the financial statements' presentation of the cash
and investments available for the payment of Plan Trust Asbestos Claims
and as to the conformity of the financial statements with generally
accepted accounting principles. The Plan Trustees shall provide a copy of
such report to the TAC, the Futures Representative, and Reorganized
Congoleum when such reports are filed with the Bankruptcy Court.
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(ii) Simultaneously with delivery of each set of financial
statements referred to in Section 2.2(c)(i) above, the Plan Trustees shall
cause to be prepared and filed with the Bankruptcy Court a report
containing a summary regarding the number and type of Plan Trust Asbestos
Claims disposed of during the period covered by the financial statements.
The Plan Trustees shall provide a copy of such report to the TAC, the
Futures Representative, and Reorganized Congoleum when such report is
filed.
(iii) All materials required to be filed with the Bankruptcy Court
by this Section 2.2(c) shall be available for inspection by the public in
accordance with procedures established by the Bankruptcy Court and shall
be filed with the Office of the United States Trustee for the District of
New Jersey.
(d) The Plan Trustees shall cause to be prepared as soon as practicable
prior to the commencement of each fiscal year a budget and cash flow projections
covering such fiscal year and the succeeding four fiscal years. The budget and
cash flow projections shall include determining the Maximum Annual Payment
pursuant to Section 2.5 of the TDP, and the Claims Payment Ratio pursuant to
Section 2.6 of the TDP. The Plan Trustees shall provide a copy of the budget and
cash flow projections to the TAC and the Futures Representative.
(e) The Plan Trustees shall consult with the TAC and the Futures
Representative (i) on the general implementation and administration of the Plan
Trust; (ii) on the general implementation and administration of the TDP; and
(iii) on such other matters as may be required under this Plan Trust Agreement
and the TDP.
(f) The Plan Trustees shall be required to obtain the consent of the TAC
and the Futures Representative pursuant to the Consent Process set forth in
Section 5.8(b) and 6.6(b) below, in addition to any other instances elsewhere
enumerated, in order:
(i) to redetermine the Payment Percentage described in Section 2.4
of the TDP as provided in Section 4.2 of the TDP;
(ii) to change the Claims Payment Ratio described in Section 2.6 of
the TDP in the event that the requirements for such a change as set forth
in said provision have been met;
(iii) to change the Disease Levels, Scheduled Values and/or
Medical/Exposure Criteria set forth in Section 5.3(a)(3) of the TDP,
and/or the Average Values and/or Maximum Values set forth in Section
5.3(b)(3) and Section 5.4(a) of the TDP;
(iv) to establish and/or to change the Claims Materials to be
provided holders of Plan Trust Asbestos Claims under Section 6.1 of the
TDP;
(v) to require that claimants provide additional kinds of medical
evidence pursuant to Section 7.1 of the TDP;
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(vi) to change the form of release to be provided pursuant to
Section 7.8 of the TDP;
(vii) to terminate the Plan Trust pursuant to Section 7.2 below;
(viii) to settle the liability of any insurer under any insurance
policy or legal action related thereto;
(ix) subject to Section 5.3 below, to settle either of the Avoidance
Actions or any other legal action relating to the validity, enforceability
or voidability of any Plan Trust Disputed Claim;
(x) to change the compensation and/or per diem of the members of the
TAC, the Futures Representative or Plan Trustees, other than to reflect
cost-of-living increases or changes approved by the Bankruptcy Court as
otherwise provided herein;
(xi) to take structural or other actions to minimize any tax on the
Plan Trust Assets;
(xii) to vote the stock of the Reorganized Debtor for purposes of
appointing members of the Board of Directors of the Reorganized Debtor; or
(xiii)to acquire an interest in or to merge any asbestos claims
resolution organization formed by the Plan Trust with another asbestos
claims resolution organization that is not specifically created by this
Plan Trust Agreement or the TDP, or to contract with another asbestos
claims resolution organization or other entity that is not specifically
created by this Plan Trust Agreement or the TDP, or permit any other party
to join in any asbestos claims resolution organization that is formed by
the Plan Trust pursuant to this Plan Trust Agreement or the TDP; provided
that such merger, acquisition, contract or joinder shall not (a) subject
Reorganized Congoleum, or any successors in interest thereto, to any risk
of having any Plan Trust Asbestos Claim asserted against it or them, or
(b) otherwise jeopardize the validity or enforceability of the section
524(g) injunction; and provided further that the terms of such merger will
require the surviving organization to make decisions about the
allowability and value of claims in accordance with Section 2.1 of the TDP
which requires that such decisions be based on the provisions of the TDP.
(g) The Plan Trustees shall meet with the TAC and the Futures
Representative no less often than quarterly. The Plan Trustees shall meet in the
interim with the TAC and the Futures Representative when so requested by either.
(h) The Plan Trustees, upon notice from either the TAC or the Futures
Representative, if practicable in view of pending business, shall at their next
meeting with the TAC or the Futures Representative consider issues submitted by
the TAC or the Futures Representative.
(i) Periodically, but not less often than once a year, the Plan Trustees
shall make available to claimants and other interested parties the number of
claims by disease levels that have been resolved both by individual review and
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by arbitration, as well as by trial, indicating the amounts of the awards and
the averages of the awards by jurisdiction pursuant to Section 7.10 of the TDP.
2.3 Claims Administration. The Plan Trustees shall promptly proceed to
implement the TDP.
SECTION 3
ACCOUNTS, INVESTMENTS, AND PAYMENTS
3.1 Accounts.
(a) The Plan Trustees may, from time to time, create such accounts and
reserves within the Plan Trust estate as they may deem necessary, prudent, or
useful in order to provide for the payment of Plan Trust Expenses and payment of
Plan Trust Asbestos Claims and may, with respect to any such account or reserve,
restrict the use of monies therein. In addition, the Plan Trustees shall
establish, as soon as practicable after the Effective Date, two separate and
distinct accounts (maintained in separate banking and/or other accounts
including accounts established by book entry) to be designated the "Asbestos
Personal Injury Claim Sub-Account" and the "Asbestos Property Damage Claim
Sub-Account," and none of the assets held in the Asbestos Personal Injury Claim
Sub-Account or the Asbestos Property Damage Claim Sub-Account shall be
commingled with assets held by the Plan Trust in any other account. In addition,
separate books and records shall be kept with respect to each of the Asbestos
Personal Injury Claim Sub-Account and the Asbestos Property Damage Claim
Sub-Account.
(b) All Plan Trust Assets and other property held by or received by the
Plan Trust (other than the Asbestos Property Damage Insurance Rights and all
proceeds thereof and earnings thereon), and all proceeds thereof and earnings
thereon, shall be held solely in the Asbestos Personal Injury Claim Sub-Account
and shall be used to pay Plan Trust PI Asbestos Claims, as well as Plan Trust
Expenses and indemnification costs or expenses, in either case related to Plan
Trust PI Asbestos Claims.
(c) All amounts received by the Plan Trust in respect of the Asbestos
Property Damage Insurance Rights, and all proceeds thereof and earnings thereon,
shall be held solely in the Asbestos Property Damage Claim Sub-Account and shall
be used to pay Allowed Asbestos Property Damage Claims, as well as Plan Trust
Expenses and indemnification costs or expenses, in either case related to
Asbestos Property Damage Claims. Notwithstanding the foregoing, the Plan
Trustees may transfer monies from the Asbestos Property Damage Claim Sub-Account
to the Asbestos Personal Injury Claim Sub-Account, from time to time, to the
extent that the funds in the Asbestos Property Damage Claim Sub-Account exceed
the aggregate of all unpaid Asbestos Property Damage Claims filed prior to the
Asbestos Property Damage Claim Bar Date and a reasonable reserve for Plan Trust
Expenses and indemnification costs or expenses, in either case related to
Asbestos Property Damage Claims.
3.2 Plan Trust Disputed Claims Reserve. Within six (6) months of the
Initial Claims Filing Date (as defined in the TDP), the Plan Trustees shall
create a reserve of funds for all Plan Trust Disputed Claims held by holders of
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Plan Trust PI Asbestos Claims that have not irrevocably consented or been deemed
to have irrevocably consented to the Forbearance of his, her or its rights under
the respective Pre-Petition Settlement Agreements or Claimant Agreement, as
applicable, if any, and his, her or its rights, if any, under the Collateral
Trust Agreement and the Security Agreement by failing to timely object to such
Forbearance upon notice thereof in accordance with procedures established by the
Bankruptcy Court pursuant to the Plan (the "Plan Trust Disputed Claims
Reserve").
In the event that any such Plan Trust Disputed Claims and/or any lien or
security interest with respect to such claims are determined by a final,
non-appealable order of a court of competent jurisdiction, or by a final and
binding settlement agreement approved by the Bankruptcy Court, to be valid,
enforceable and unavoidable, such claims shall be entitled to treatment by the
Plan Trust in accordance with the liquidated amount of such claims and any valid
lien or security interest therefor, and shall be paid by the Plan Trust from the
funds in the Plan Trust Disputed Claims Reserve.
In the event that any such Plan Trust Disputed Claims are determined by a
final, non-appealable order of a court of competent jurisdiction, or by a final
and binding settlement agreement approved by the Bankruptcy Court, to be valid,
enforceable and unavoidable, but any lien or security interest with respect to
such claims such claims is found to be invalid, unenforceable and avoidable, an
amount equal to the Payment Percentage times the liquidated amount of such
claims shall be paid by the Plan Trust from the Plan Trust Disputed Claims
Reserve. Any additional funds in the Plan Trust Disputed Claims Reserve
attributable to such claims shall be made available for distribution by the Plan
Trust in accordance with the terms of this Plan Trust Agreement.
In the event that any such Plan Trust Disputed Claims are determined by a
final, non-appealable order of a court of competent jurisdiction, or by a final
and binding settlement agreement approved by the Bankruptcy Court, to be to be
invalid, unenforceable or void, any funds in the Plan Trust Disputed Claims
Reserve attributable to such claims shall be made available for distribution by
the Plan Trust in accordance with the terms of this Plan Trust Agreement. As
provided in Section 2.3 of the TDP, the holders of such Plan Trust Disputed
Claims may file their claims with the Plan Trust for determination and treatment
under the TDP in a manner consistent with such settlement or order.
3.3 Investments. Investment of monies held in the Plan Trust shall be
administered in the manner in which individuals of ordinary prudence,
discretion, and judgment would act in the management of their own affairs,
subject to the following limitations and provisions:
(a) The Plan Trust shall not acquire, directly or indirectly, equity in
any entity (other than Reorganized Congoleum or any successor to Reorganized
Congoleum) or business enterprise if, immediately following such acquisition,
the Plan Trust would hold more than 5% of the equity in such entity or business
enterprise. The Plan Trust shall not hold, directly or indirectly, more than 10%
of the equity in any entity (other than Reorganized Congoleum or any successor
to Reorganized Congoleum) or business enterprise.
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EXHIBIT D TO THE PLAN
(b) The Plan Trust shall not acquire or hold any long-term debt securities
unless (i) such securities are Plan Trust Assets under the Plan, (ii) such
securities are rated "Baa" or higher by ▇▇▇▇▇'▇, "BBB" or higher by Standard &
Poor's ("S&P's"), or have been given an equivalent investment grade rating by
another nationally recognized statistical rating agency, or (iii) have been
issued or fully guaranteed as to principal and interest by the United States of
America or any agency or instrumentality thereof.
(c) The Plan Trust shall not acquire or hold for longer than ninety (90)
days any commercial paper unless such commercial paper is rated "Prime 1" or
higher by ▇▇▇▇▇'▇ or "A 1" or higher by S&P's, or has been given an equivalent
rating by another nationally recognized statistical rating agency.
(d) Excluding any securities issued by the Debtors or Reorganized
Congoleum, or transferred to the Plan Trust in accordance with the provisions of
the Plan, the Plan Trust shall not acquire or hold any common or preferred stock
or convertible securities unless such stock or securities are rated "A" or
higher by ▇▇▇▇▇'▇ or "A" or higher by S&P's, or have been given an equivalent
investment grade rating by another nationally recognized statistical rating
agency.
(e) The Plan Trust shall not acquire any debt securities or other
instruments issued by any entity (other than debt securities or other
instruments issued or fully guaranteed as to principal and interest by the
United States of America or any agency or instrumentality thereof and other than
debt securities or other instruments of Reorganized Congoleum or any successor
to Reorganized Congoleum) if, following such acquisition, the aggregate market
value of all debt securities and instruments issued by such entity held by the
Plan Trust would exceed 2% of the aggregate value of the Plan Trust's assets.
The Plan Trust shall not hold any debt securities or other instruments issued by
any entity (other than debt securities or other instruments issued or fully
guaranteed as to principal and interest by the United States of America or any
agency or instrumentality thereof and other than debt securities or other
instruments of Reorganized Congoleum or any successor to Reorganized Congoleum)
to the extent that the aggregate market value of all securities and instruments
issued by such entity held by the Plan Trust would exceed 5% of the aggregate
value of the Plan Trust's assets.
(f) The Plan Trust shall not acquire or hold any certificates of deposit
unless all publicly held, long-term debt securities, if any, of the financial
institution issuing the certificate of deposit and the holding company, if any,
of which such financial institution is a subsidiary, meet the standards set
forth in Section 3.3(b) above.
(g) The Plan Trust may acquire and hold any securities or instruments
issued by Reorganized Congoleum or any successor to Reorganized Congoleum, or
obtained as proceeds of litigation or otherwise to resolve disputes, without
regard to the limitations set forth in Subsections (a)-(f) above.
(h) The Plan Trust shall not acquire or hold any repurchase obligations
unless, in the opinion of the Plan Trustees, they are adequately collateralized.
(i) The Plan Trust shall not acquire or hold any options.
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EXHIBIT D TO THE PLAN
3.4 Source of Payments. All Plan Trust expenses and payments and all
liabilities with respect to claims shall be payable solely by the Plan Trustees
out of the Plan Trust Assets. Neither Congoleum, Reorganized Congoleum, their
subsidiaries, any successor in interest, the present or former directors,
officers, employees or agents of Congoleum, Reorganized Congoleum, nor the Plan
Trustees, the TAC or Futures Representative, or any of their officers, agents,
advisors, or employees shall be liable for the payment of any Plan Trust
Asbestos Claim, Plan Trust Expense or any other liability of the Plan Trust.
3.5 Payments of Allowed Asbestos Property Damage Claims.
(a) All Asbestos Property Damage Claims filed before the Asbestos Property
Damage Claim Bar Date shall be Allowed or Disallowed by a Final Order (whether
such Final Order resolves a contested matter or adversary proceeding, approves a
compromise or settlement or otherwise). The Plan Trust shall only be obligated
to pay Asbestos Property Damage Claims that (i) were filed prior to the Asbestos
Property Damage Claim Bar Date and (ii) have been Allowed (and the Plan Trust
shall only be obligated to pay such Asbestos Property Damage Claims to the
extent so Allowed) by a Final Order. The Plan Trust shall not make any
distributions with respect to Allowed Asbestos Property Damage Claims until all
Asbestos Property Damage Claims have been Allowed or Disallowed by Final Order.
Any Asbestos Property Damage Claims filed after the Asbestos Property Damage
Claim Bar Date shall, pursuant to the terms of the Plan, be automatically
Disallowed, with no further action of any Entity.
(b) Payments to holders of Allowed Asbestos Property Damage Claims shall
be made solely from the Asbestos Property Damage Claim Sub-Account.
(c) Subject to the terms and conditions of Section 3.5(d), with respect to
any distribution in respect of Allowed Asbestos Property Damage Claims, each
holder of an Allowed Asbestos Property Damage Claim shall be paid a pro rata
portion of such holder's Allowed Asbestos Property Damage Claim determined by
multiplying the aggregate amount of the distribution to be made by a fraction,
the numerator of which is the amount of such holder's Allowed Asbestos Property
Damage Claim and the denominator of which is the total of all Allowed Asbestos
Property Damage Claims until the assets in the Asbestos Property Damage Claim
Sub-Account are exhausted; provided that the aggregate of all distributions made
hereunder to a holder of an Allowed Asbestos Property Damage Claim shall not
exceed the Allowed Amount of such holder's Allowed Asbestos Property Damage
Claim; and provided further that once all of the assets in the Asbestos Property
Damage Claim Sub-Account have been exhausted, the Plan Trust shall have no
further obligation or liability in respect of Allowed Asbestos Property Damage
Claims.
(d) The Plan Trustees shall determine the timing and the appropriate
method for making payments in respect of Allowed Asbestos Property Damage
Claims, subject to the requirements and general principles of this Plan Trust
Agreement and the Plan. Methods for making payments in respect of Allowed
Asbestos Personal Damage Claims may include payment on an installment basis. In
the event that the Plan Trust faces periods of limited liquidity in the Asbestos
Property Damage Claim Sub-Account, the Plan Trustees may defer, delay, limit, or
suspend altogether, payments or a portion thereof in respect of Allowed Asbestos
Property Damage Claims.
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EXHIBIT D TO THE PLAN
3.6 Payment of Plan Trust Expenses.
(a) All Plan Trust Expenses and all liabilities of the Plan Trust with
respect to all Asbestos Personal Injury Claims, ABI Asbestos Personal Injury
Indemnity Claims, and Plan Trust Assets and earnings thereon (other than that
the Asbestos Property Damage Insurance Rights and proceeds thereof and earnings
thereon), shall be payable by the Plan Trust solely out of the Asbestos Personal
Injury Claim Sub-Account. All Plan Trust Expenses and all liabilities with
respect to Asbestos Property Damage Claims (and the Asbestos Property Damage
Insurance Rights and proceeds thereof and earnings thereon) shall be payable by
the Plan Trust solely out of the Asbestos Property Damage Claim Sub-Account. If
Plan Trust Expenses and liabilities relate to more than one of the categories
described in the preceding sentences, such Plan Trust Expenses and liabilities
shall be satisfied from one or more of the accounts as determined by the Plan
Trustees in their sole discretion. Notwithstanding any other provision of this
Plan Trust Agreement or the Plan, the Plan Trust shall have no further liability
or obligation for or in respect of Plan Trust Expenses or other liabilities
relating to Asbestos Property Damage Claims once all of the assets in the
Asbestos Property Damage Claim Sub-Account have been exhausted.
(b) Notwithstanding anything in this Plan Trust Agreement or the TDP to
the contrary, the Plan Trustees shall deduct from the Plan Trust Assets and
shall pay such amounts as are required to pay the Plan Trust Expenses after
receipt by the Plan Trustees of evidence satisfactory to them of the applicable
Plan Trust Expense and provided that the Plan Trustees do not contest the amount
of such Plan Trust Expense.
3.7 Indemnification Payments. Any claim for indemnification from the Plan
Trust and all costs and expenses associated therewith shall be satisfied as
follows:
(a) If an indemnification claim relates solely to or arises solely in
connection with a Plan Trust PI Asbestos Claim, such claim shall be satisfied
solely from assets held in the Asbestos Personal Injury Claim Sub-Account;
(b) If an indemnification claim relates solely to or arises solely in
connection with an Asbestos Property Damage Claim, such claim shall be satisfied
solely from assets held in the Asbestos Property Damage Claim Sub-Account;
(c) If an indemnification claim relates to or arises in connection with
both Plan Trust PI Asbestos Claims and Asbestos Property Damage Claims, or if
such indemnification claim does not clearly relate to or arise in connection
with Plan Trust PI Asbestos Claims or Asbestos Property Damage Claims, such
claim shall be satisfied from assets held in the Asbestos Personal Injury Claim
Sub-Account and the Asbestos Property Damage Claim Sub-Account in such relative
proportion as the Plan Trustees determine in their sole discretion.
Notwithstanding any other provision of this Plan Trust Agreement or the Plan,
the Plan Trust shall have no further liability or obligation for or in respect
of indemnification relating to or arising from Asbestos Property Damage Claims
and all costs and expenses associated therewith once all of the assets in the
Asbestos Property Damage Claim Sub-Account have been exhausted.
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EXHIBIT D TO THE PLAN
SECTION 4
PLAN TRUSTEES
4.1 Number. There shall be three (3) Plan Trustees who shall be initially
those persons named on the signature page hereof, namely ___________,
_____________ and ______________.
4.2 Term of Service.
(a) The initial Plan Trustees named pursuant to Section 4.1 above shall
serve staggered terms of three (3), four (4) and five (5) years, respectively.
Thereafter each term of service shall be five (5) years. The initial Plan
Trustees shall serve from the Effective Date until the earlier of (i) the end of
his or her term, (ii) his or her death, (iii) his or her resignation pursuant to
Section 4.2(b) below, (iv) his or her removal pursuant to Section 4.2(c) below,
or (v) the termination of the Plan Trust pursuant to Section 7.2 below.
(b) A Plan Trustee may resign at any time by written notice to the
remaining Plan Trustees, the TAC and the Futures Representative. Such notice
shall specify a date when such resignation shall take place, which shall not be
less than ninety (90) days after the date such notice is given, where
practicable.
(c) A Plan Trustee may be removed by unanimous vote of the remaining Plan
Trustees in the event that he or she becomes unable to discharge his or her
duties hereunder due to accident or physical or mental deterioration, or for
other good cause. Good cause shall be deemed to include, without limitation, any
substantial failure to comply with the general administration provisions of
Section 2.2 above, a consistent pattern of neglect and failure to perform or
participate in performing the duties of the Plan Trustees hereunder, or repeated
non-attendance at scheduled meetings. Such removal shall require the approval of
the Bankruptcy Court and shall take effect at such time as the Bankruptcy Court
shall determine.
4.3 Appointment of Successor Trustees.
(a) In the event of a vacancy in the position of a Plan Trustee, whether
by term expiration, resignation or removal, the remaining Plan Trustees shall
consult with the TAC and the Futures Representative concerning appointment of a
successor Plan Trustee. The vacancy shall be filled by the unanimous vote of the
remaining Plan Trustees unless a majority of the TAC or the Futures
Representative vetoes the appointment. In the event that the remaining Plan
Trustees cannot agree on a successor Plan Trustee, or a majority of the TAC or
the Futures Representative vetoes the appointment of a successor Plan Trustee,
the Bankruptcy Court shall make the appointment. Nothing shall prevent the
reappointment of a Plan Trustee for an additional term or terms.
(b) Immediately upon the appointment of any successor Plan Trustee, all
rights, titles, duties, powers and authority of the predecessor Plan Trustee
hereunder shall be vested in, and undertaken by, the successor Plan Trustee
without any further act. No successor Plan Trustee shall be liable personally
for any act or omission of his or her predecessor Plan Trustees.
14
(c) Each successor Plan Trustee shall serve until the earlier of (i) the
end of a full term of five (5) years if the predecessor Plan Trustee completed
his or her term, (ii) the end of the remainder of the term of the Plan Trustee
whom he or she is replacing if said predecessor Plan Trustee did not complete
said term, (iii) his or her death, (iv) his or her resignation pursuant to
Section 4.2(b) above, (v) his or her removal pursuant to Section 4.2(c) above,
or (vi) the termination of the Plan Trust pursuant to Section 7.2 below.
4.4 Liability of Plan Trustees, Officers and Employees. The Plan Trustees
and the individuals identified as Additional Indemnitees in Section 2.1(c)(xiv)
above shall not be liable to the Plan Trust, to any individual holding Plan
Trust Asbestos Claim, or to any other person, except for such individual's own
breach of trust committed in bad faith or willful misappropriation. In addition,
the Plan Trustees and the Additional Indemnitees shall not be liable for any act
or omission of any other Plan Trustee or Additional Indemnitee unless such
person acted with bad faith in the selection or retention of such other Plan
Trustee or Additional Indemnitee.
4.5 Compensation and Expenses of Plan Trustees.
(a) The Plan Trustees shall receive compensation from the Plan Trust for
their services as Plan Trustees in the amount of $60,000.00 per annum, plus a
per diem allowance for meetings or other Plan Trust business performed in the
amount of $1,500.00. For purposes of Section 7.4 below, the Plan Trustees shall
determine the scope and duration of activities that constitute a meeting and, if
the Plan Trustees elect to provide for payment for activities of less than a
full day's duration, may provide for partial payment of per diem amounts on a
proportional basis for activities of less than a full day's duration. The per
annum and per diem compensation payable to the Plan Trustees hereunder shall be
reviewed every three (3) years and appropriately adjusted for changes in the
cost of living. Any other changes in compensation of the Plan Trustees shall be
made subject to the approval of the Bankruptcy Court.
(b) The Plan Trust will promptly reimburse the Plan Trustees for all
reasonable out-of-pocket costs and expenses incurred by the Plan Trustees in
connection with the performance of their duties hereunder.
(c) The Plan Trust shall include a description of the amounts paid under
this Section 4.5 in the accounts to be filed with the Bankruptcy Court and
provided to the TAC, the Futures Representative, and Reorganized Congoleum
pursuant to Section 2.2(c)(i).
4.6 Indemnification of Plan Trustees and Additional Indemnitees.
(a) The Plan Trust shall indemnify and defend the Plan Trustees, as well
as the Additional Indemnitees in the performance of their duties hereunder to
the fullest extent that a corporation or trust organized under the laws of the
Plan Trust's situs is from time to time entitled to indemnify and defend such
persons against any and all liabilities, expenses, claims, damages or losses
incurred by them in the performance of their duties. Notwithstanding the
foregoing, the Plan Trustees and the Additional Indemnitees shall not be
indemnified or defended in any way for any liability, expense, claim, damage, or
loss for which he or she is ultimately liable under Section 4.4 above.
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EXHIBIT D TO THE PLAN
(b) Reasonable expenses, costs and fees (including attorneys' fees and
costs) incurred by or on behalf of a Plan Trustee or Additional Indemnitee in
connection with any action, suit, or proceeding, whether civil, administrative
or arbitrative, from which they are indemnified by the Plan Trust pursuant to
Section 4.6(a) above, shall be paid by the Plan Trust in advance of the final
disposition thereof upon receipt of an undertaking, by or on behalf of the Plan
Trustees or Additional Indemnitee, to repay such amount in the event that it
shall be determined ultimately by final order that such Plan Trustee or
Additional Indemnitee is not entitled to be indemnified by the Plan Trust.
(c) The Plan Trustees may purchase and maintain reasonable amounts and
types of insurance on behalf of an individual who is or was a Plan Trustee or
Additional Indemnitee, including against liability asserted against or incurred
by such individual in that capacity or arising from his or her status as a Plan
Trustee, TAC member, Futures Representative, officer, employee, agent or other
representative.
4.7 Plan Trustees' Lien. The Plan Trustees and the Additional Indemnitees
shall have a first priority lien upon the Plan Trust Assets to secure the
payment of any amounts payable to them pursuant to Section 4.6 above.
4.8 Plan Trustees' Employment of Experts. The Plan Trustees may, but shall
not be required to, retain and/or consult with counsel, accountants, appraisers,
auditors and forecasters, and other parties ("Professionals") deemed by the Plan
Trustees to be qualified as experts on the matters submitted to them, and the
written opinion of or information provided by any such parties on any matters
submitted to them by the Plan Trustees shall be full and complete authorization
and protection in respect of any action taken or not taken by the Plan Trustees
hereunder in good faith and in accordance with the written opinion of or
information provided by any such party.
4.9 Plan Trustees' Independence. The Plan Trustees shall not, during the
term of their service, hold a financial interest in, act as attorney or agent
for, or serve as any other professional for Reorganized Congoleum.
Notwithstanding the foregoing, any Plan Trustee may serve, without any
additional compensation other than the per diem compensation to be paid by the
Plan Trust pursuant to Section 4.5(a) above, as a director of Reorganized
Congoleum. No Plan Trustee shall act as an attorney for any person who holds an
asbestos claim.
4.10 Bond. The Plan Trustees shall not be required to post any bond or
other form of surety or security unless otherwise ordered by the Bankruptcy
Court.
SECTION 5
PLAN TRUST ADVISORY COMMITTEE
5.1 Members. The TAC shall consist of five (5) members, who shall
initially be the persons named on the signature page hereof, namely
_________________.
5.2 Duties. The members of the TAC shall serve in a fiduciary capacity
representing all holders of present Plan Trust Asbestos Claims. Subject to
Section 5.3, below, the Plan Trustees must consult with the TAC on matters
16
EXHIBIT D TO THE PLAN
identified in Section 2.2(e) above and in other provisions herein, and must
obtain the consent of the TAC on matters identified in Section 2.2(f) above.
Where provided in the TDP, certain other actions by the Plan Trustees are also
subject to the consent of the TAC.
5.3 Consent of TAC With Respect to Avoidance Actions, etc. If the Plan
Trustees seek the consent of the TAC with respect to a matter identified in
Section 2.2(f)(ix) above, a TAC member who is a Claimants' Counsel, as defined
in the Claimant Agreement, or who is a member, employee or associate of a firm
of such Claimants' Counsel, shall not take part in the decision of the TAC as to
whether to grant such consent, or in any decision of the TAC regarding the
resolution of any dispute concerning such matter pursuant to Section 7.13 below.
5.4 Term of Office.
(a) The initial members of the TAC appointed in accordance with Section
5.1 above shall serve staggered three-, four-, or five-year terms. Thereafter,
each term of service shall be five (5) years. A member of the TAC shall serve
until the earlier of (i) his or her death, (ii) his or her resignation pursuant
to Section 5.4(b) below, (iii) his or her removal pursuant to Section 5.4(c)
below, (iv) the end of his or her term as provided above, or (v) the termination
of the Plan Trust pursuant to Section 7.2 below.
(b) A member of the TAC may resign at any time by written notice to the
other members of the TAC, the Plan Trustees and the Futures Representative. Such
notice shall specify a date when such resignation shall take effect, which shall
not be less than ninety (90) days after the date such notice is given, where
practicable.
(c) A member of the TAC may be removed in the event that he or she becomes
unable to discharge his or her duties hereunder due to accident, physical
deterioration, mental incompetence, or a consistent pattern of neglect and
failure to perform or to participate in performing the duties of such member
hereunder, such as repeated non-attendance at scheduled meetings, or for other
good cause. Such removal shall be made at the recommendation of the remaining
members of the TAC with the approval of the Bankruptcy Court.
5.5 Appointment of Successor.
(a) In the event of a vacancy caused by the resignation, expiration of the
term, or death of a TAC member, his or her successor shall be pre-selected by
the TAC member whose has resigned, is deceased or whose term has expired, or by
his or her law firm in the event that such member has not pre-selected a
successor. Nothing shall prevent a TAC member or his or her law firm from
pre-selecting that TAC member to succeed himself or herself at the expiration of
his or her term, and there shall be no limit on the number of terms that a TAC
member may serve. If neither the member nor the law firm exercises the right to
make such a selection, the successor shall be chosen by a majority vote of the
remaining TAC members. If a majority of the remaining members cannot agree, the
Bankruptcy Court shall appoint the successor. In the event of a vacancy caused
by the removal of a TAC member, the remaining members of the TAC by majority
vote shall name the successor. If the majority of the remaining members of the
TAC cannot reach agreement, the Bankruptcy Court shall appoint the successor.
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EXHIBIT D TO THE PLAN
(b) Each successor TAC member shall serve until the earlier of (i) his or
her death, (ii) his or her resignation pursuant to Section 5.4(b) above, (iii)
his or her removal pursuant to Section 5.4(c) above, (iv) the expiration of his
or her term pursuant to Section 5.4(a) above, or (v) the termination of the Plan
Trust pursuant to Section 7.2 below.
5.6 TAC's Employment of Professionals.
(a) The TAC may, but is not required to, retain and/or consult
Professionals deemed by the TAC to be qualified as experts on matters submitted
to the TAC. The TAC and its Professionals shall at all times have complete
access to the Plan Trust's officers, employees and agents, as well as to the
Professionals retained by the Plan Trust, and shall also have complete access to
all information generated by them or otherwise available to the Plan Trust or
the Plan Trustees. In the absence of gross negligence, the written opinion of or
information provided by any Professional deemed by the TAC to be qualified as an
expert on the particular matter submitted to the TAC shall be full and complete
authorization and protection in support of any action taken or not taken by the
TAC in good faith and in accordance with the written opinion of or information
provided by the Professional.
(b) The Plan Trust shall promptly reimburse, or pay directly if so
instructed, the TAC for all reasonable fees and costs associated with the TAC's
employment of legal counsel pursuant to this provision in connection with the
TAC's performance of its duties hereunder. The Plan Trust shall also promptly
reimburse, or pay directly if so instructed, the TAC for all reasonable fees and
costs associated with the TAC's employment of any other Professional pursuant to
this provision in connection with the TAC's performance of its duties hereunder;
provided, however, that (i) the TAC has first submitted to the Plan Trust a
written request for such reimbursement setting forth the reasons (A) why the TAC
desires to employ such Professional, and (B) why the TAC cannot rely on
Professionals retained by the Plan Trust to meet the need of the TAC for such
expertise or advice, and (ii) the Plan Trust has approved the TAC's request for
reimbursement in writing. If the Plan Trust agrees to pay for the TAC
Professional, such reimbursement shall be treated as a Plan Trust Expense. If
the Plan Trust declines to pay for the TAC Professional, it must set forth its
reasons in writing. If the TAC still desires to employ such Professional at Plan
Trust expense, the TAC and/or the Plan Trustees shall resolve their dispute
pursuant to Section 7.13 below.
5.7 Compensation and Expenses of the TAC. The members of the TAC shall
receive compensation from the Plan Trust for their services as TAC members in
the form of a reasonable hourly rate set by the Plan Trustees for attendance at
meetings or other conduct of Plan Trust business. The members of the TAC shall
also be reimbursed promptly for all reasonable out-of-pocket costs and expenses
incurred in connection with the performance of their duties hereunder. Such
reimbursement or direct payment shall be deemed a Plan Trust Expense. The Plan
Trust shall include a description of the amounts paid under this Section 5.7 in
the accounts to be filed with the Bankruptcy Court and provided to the Plan
Trustees, the Futures Representative, and Reorganized Congoleum pursuant to
Section 2.2(c)(i).
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EXHIBIT D TO THE PLAN
5.8 Procedures for Consultation With and Obtaining the Consent of the TAC.
(a) Consultation Process.
(i) In the event the Plan Trustees are required to consult with the TAC
pursuant to Section 2.2(e) above or on other matters as provided herein, the
Plan Trustees shall provide the TAC with written advance notice of the matter
under consideration, and with all relevant information concerning the matter as
is reasonably practicable under the circumstances. The Plan Trustees shall also
provide the TAC with such reasonable access to the Professionals and other
experts retained by the Plan Trust and its staff (if any) as the TAC may
reasonably request during the time that the Plan Trustees are considering such
matter, and shall also provide the TAC the opportunity, at reasonable times and
for reasonable periods of time, to discuss and comment on such matter with the
Plan Trustees.
(ii) The Plan Trustees shall take into consideration the time required for
the TAC, if its members so wish, to engage and consult with its own independent
financial or investment advisors as to such matter.
(b) Consent Process.
(i) In the event the Plan Trustees are required to obtain the consent of
the TAC pursuant to Section 2.2(f) above, the Trustees shall provide the TAC
with a written notice stating that their consent is being sought pursuant to
that provision, describing in detail the nature and scope of the action the Plan
Trustees propose to take, and explaining in detail the reasons why the Plan
Trustees desire to take such action. The Plan Trustees shall provide the TAC as
much relevant additional information concerning the proposed action as is
reasonably practicable under the circumstances. The Plan Trustees shall also
provide the TAC with such reasonable access to the Professionals and other
experts retained by the Plan Trust and its staff (if any) as the TAC may
reasonably request during the time that the Plan Trustees are considering such
action, and shall also provide the TAC the opportunity, at reasonable times and
for reasonable periods of time, to discuss and comment on such action with the
Plan Trustees.
(ii) The TAC must consider in good faith and in a timely fashion any
request for its consent by the Plan Trustees, and must in any event advise the
Plan Trustees in writing of its consent or its objection to the proposed action
within 30 days of receiving the original request for consent from the Plan
Trustees. The TAC may not withhold its consent unreasonably. If the TAC decides
to withhold its consent, it must explain in detail its objections to the
proposed action. If the TAC does not advise the Plan Trustees in writing of its
consent or its objections to the action within thirty (30) days of receiving
notice regarding such request, the TAC's consent to the proposed actions shall
be deemed to have been affirmatively granted.
(iii) If, after following the procedures specified in this Section 5.8(b),
the TAC continues to object to the proposed action and to withhold its consent
to the proposed action, the Plan Trustees and/or the TAC shall resolve their
dispute pursuant to Section 7.13. However, the burden of proof with respect to
the validity of the TAC's objection and withholding of its consent shall be on
the TAC.
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EXHIBIT D TO THE PLAN
SECTION 6
THE FUTURES REPRESENTATIVE
6.1 Duties. The initial Futures Representative shall be the individual
identified on the signature pages hereto, namely R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esquire. He
shall serve in a fiduciary capacity, representing the interests of the holders
of future Plan Trust Asbestos Claims for the purpose of protecting the rights of
such persons. The Plan Trustees must consult with the Futures Representative on
matters identified in Section 2.2(e) above and on certain other matters provided
herein, and must obtain the consent of the Futures Representative on matters
identified in Section 2.2(f) above. Where provided in the TDP, certain other
actions by the Plan Trustees are also subject to the consent of the Futures
Representative.
6.2 Term of Office.
(a) The Futures Representative shall serve until the earlier of (i) his or
her death, (ii) his or her resignation pursuant to Section 6.2(b) below, (iii)
his or her removal pursuant to Section 6.2(c) below, or (iv) the termination of
the Plan Trust pursuant to Section 7.2 below.
(b) The Futures Representative may resign at any time by written notice to
the Plan Trustees. Such notice shall specify a date when such resignation shall
take effect, which shall not be less than ninety (90) days after the date such
notice is given, where practicable.
(c) The Futures Representative may be removed by the Bankruptcy Court in
the event he or she becomes unable to discharge his or her duties hereunder due
to accident, physical deterioration, mental incompetence, or a consistent
pattern of neglect and failure to perform or to participate in performing the
duties hereunder, such as repeated non-attendance at scheduled meetings, or for
other good cause.
6.3 Appointment of Successor. A vacancy caused by death or resignation
shall be filled with an individual nominated prior to the effective date of the
resignation or the death by the resigning or deceased Futures Representative,
and a vacancy caused by removal of the Futures Representative shall be filled
with an individual nominated by the Plan Trustees in consultation with the TAC,
subject to the approval of the Bankruptcy Court. In the event a majority of the
Plan Trustees cannot agree, or a nominee has not been pre-selected, the
successor shall be chosen by the Bankruptcy Court.
6.4 Futures Representative's Employment of Professionals.
(a) The Futures Representative may, but is not required to, retain and/or
consult Professionals deemed by the Futures Representative to be qualified as
experts on matters submitted to the Futures Representative. The Futures
Representative and his or her Professionals shall at all times have complete
access to the Plan Trust's officers, employees and agents, as well as to the
Professionals retained by the Plan Trust, and shall also have complete access to
all information generated by them or otherwise available to the Plan Trust or
the Plan Trustees. In the absence of gross negligence, the written opinion of or
20
EXHIBIT D TO THE PLAN
information provided by any Professional deemed by the Futures Representative to
be qualified as an expert on the particular matter submitted to the Futures
Representative shall be full and complete authorization and protection in
support of any action taken, or not taken, by the Futures Representative in good
faith and in accordance with the written opinion of or information provided by
the Professional.
(b) The Plan Trust shall promptly reimburse, or pay directly if so
instructed, the Futures Representative for all reasonable fees and costs
associated with the Futures Representative's employment of legal counsel
pursuant to this provision in connection with the Futures Representative's
performance of his or her duties hereunder. The Plan Trust shall also promptly
reimburse, or pay directly if so instructed, the Futures Representative for all
reasonable fees and costs associated with the Futures Representative's
employment of any other Professionals pursuant to this provision in connection
with the Futures Representative's performance of his or her duties hereunder;
provided, however, that (i) the Futures Representative has first submitted to
the Plan Trust a written request for such reimbursement setting forth the
reasons (A) why the Futures Representative desires to employ the Professional,
and (B) why the Futures Representative cannot rely on Professionals retained by
the Plan Trust to meet the need of the Futures Representative for such expertise
or advice, and (ii) the Plan Trust has approved the Futures Representative's
request for reimbursement in writing. If the Plan Trust agrees to pay for the
Futures Representative's Professional, such reimbursement shall be treated as a
Plan Trust Expense. If the Plan Trust declines to pay for the Futures
Representative's Professional, it must set forth its reasons in writing. If the
Futures Representative still desires to employ the Professional at Plan Trust
expense, the Futures Representative and/or the Plan Trustees shall resolve their
dispute pursuant to Section 7.13 below.
6.5 Compensation and Expenses of the Futures Representative. The Futures
Representative shall receive compensation from the Plan Trust in the form of
payment at the Futures Representative's normal hourly rate for services
performed. The Plan Trust will promptly reimburse the Futures Representative for
all reasonable out-of-pocket costs and expenses incurred by the Futures
Representative in connection with the performance of his or her duties
hereunder. Such reimbursement or direct payment shall be deemed a Plan Trust
Expense. The Plan Trust shall include a description of the amounts paid under
this Section 6.5 in the accounts to be filed with the Bankruptcy Court and
provided to the Plan Trustees, the Futures Representative, and Reorganized
Congoleum pursuant to Section 2.2(c)(i).
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EXHIBIT D TO THE PLAN
6.6 Procedures for Consultation with and Obtaining the Consent of the
Futures Representative.
(a) Consultation Process.
(i) In the event the Plan Trustees are required to consult with the
Futures Representative pursuant to Section 2.2(e) above or on any other
matters specified herein, the Plan Trustees shall provide the Futures
Representative with written advance notice of the matter under
consideration, and with all relevant information concerning the matter as
is reasonably practicable under the circumstances. The Plan Trustees shall
also provide the Futures Representative with such reasonable access to
Professionals and other experts retained by the Plan Trust and its staff
(if any) as the Futures Representative may reasonably request during the
time that the Plan Trustees are considering such matter, and shall also
provide the Futures Representative the opportunity, at reasonable times
and for reasonable periods of time, to discuss and comment on such matter
with the Plan Trustees.
(ii) The Plan Trustees shall take into consideration the time
required for the Futures Representative, if he or she so wishes, to engage
and consult with his or her own independent financial or investment
advisors as to such matter.
(b) Consent Process.
(i) In the event the Plan Trustees are required to obtain the
consent of the Futures Representative pursuant to Section 2.2(f) above,
the Plan Trustees shall provide the Futures Representative with a written
notice stating that his or her consent is being sought pursuant to that
provision, describing in detail the nature and scope of the action the
Plan Trustees propose to take, and explaining in detail the reasons why
the Plan Trustees desire to take such action. The Plan Trustees shall
provide the Futures Representative as much relevant additional information
concerning the proposed action as is reasonably practicable under the
circumstances. The Plan Trustees shall also provide the Futures
Representative with such reasonable access to the Professionals and other
experts retained by the Plan Trust and its staff (if any) as the Futures
Representative may reasonably request during the time that the Plan
Trustees are considering such action, and shall also provide the Futures
Representative the opportunity, at reasonable times and for reasonable
periods of time, to discuss and comment on such action with the Plan
Trustees.
(ii) The Futures Representative must consider in good faith and in a
timely fashion any request for his or her consent by the Plan Trustees,
and must in any event advise the Plan Trustees in writing of his or her
consent or objection to the proposed action within thirty (30) days of
receiving the original request for consent from the Plan Trustees. The
Futures Representative may not withhold his or her consent unreasonably.
If the Futures Representative decides to withhold consent, he or she must
explain in detail his or her objections to the proposed action. If the
Futures Representative does not advise the Plan Trustees in writing of his
or her consent or objections to the proposed action within thirty (30)
days of receiving the notice from the Plan Trustees regarding such
consent, the Futures Representative's consent shall be deemed to have been
affirmatively granted.
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EXHIBIT D TO THE PLAN
(iii) If, after following the procedures specified in this Section
6.6(b), the Futures Representative continues to object to the proposed
action and to withhold its consent to the proposed action, the Plan
Trustees and/or the Futures Representative shall resolve their dispute
pursuant to Section 7.13. However, the burden of proof with respect to the
validity of the Futures Representative's objection and withholding of his
or her consent shall be on the Futures Representative.
SECTION 7
GENERAL PROVISIONS
7.1 Irrevocability. The Plan Trust is irrevocable.
7.2 Termination.
(a) The Plan Trust shall automatically terminate on the date ninety (90)
days after the first to occur of the following events (the "Termination Date"):
(i) the Plan Trustees decide to terminate the Plan Trust because (A)
they deem it unlikely that new asbestos claims will be filed against the
Plan Trust, (B) all Plan Trust Asbestos Claims duly filed with the Plan
Trust have been liquidated and paid to the extent provided in this Plan
Trust Agreement and the TDP or have been disallowed by a final,
non-appealable order, to the extent possible based upon the funds
available through the Plan, and (C) twelve (12) consecutive months have
elapsed during which no new asbestos claim has been filed with the Plan
Trust; or
(ii) if the Plan Trustees have procured and have in place
irrevocable insurance policies and have established claims handling
agreements and other necessary arrangements with suitable third parties
adequate to discharge all expected remaining obligations and expenses of
the Plan Trust in a manner consistent with this Plan Trust Agreement and
the TDP, the date on which the Bankruptcy Court enters an order approving
such insurance and other arrangements and such order becomes a final
order; or
(iii) to the extent that any rule against perpetuities shall be
deemed applicable to the Plan Trust, twenty-one (21) years less ninety-one
(91) days pass after the death of the last survivor of all of the
descendants of the late ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., father of the late
President ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, living on the date hereof.
(b) On the Termination Date, after payment of all the Plan Trust's
liabilities have been provided for, all monies remaining in the Plan Trust
estate shall be given to such organization(s) exempt from federal income tax
under section 501(c)(3) of the Internal Revenue Code, which tax-exempt
organization(s) shall be selected by the Plan Trustees using their reasonable
discretion; provided, however, that (i) if practicable, the activities of the
selected tax-exempt organization(s) shall be related to the treatment of,
research on, or the relief of suffering of individuals suffering from asbestos
23
EXHIBIT D TO THE PLAN
related lung disorders, and (ii) the tax-exempt organization(s) shall not bear
any relationship to Reorganized Congoleum within the meaning of section
468B(d)(3) of the Internal Revenue Code. Notwithstanding any contrary provision
of the Plan and related documents, this Section 7.2(b) cannot be modified or
amended.
7.3 Amendments. The Plan Trustees, after consultation with the TAC and the
Futures Representative, and subject to the unanimous consent of the TAC and the
Futures Representative, may modify or amend this Plan Trust Agreement and the
Plan Trust By-laws. The Plan Trustees, after consultation with the TAC and the
Futures Representative, and subject to the consent of the TAC and the Futures
Representative, may modify or amend the TDP; provided, however, that no
amendment to the TDP shall be inconsistent with the provisions limiting
amendments to that document provided therein, and in particular the provisions
limiting amendment of the Claims Payment Ratio set forth in Section 2.6 of the
TDP and of the Payment Percentage set forth in Section 4.2 of the TDP. Any
modification or amendment made pursuant to this Section must be done in writing.
Notwithstanding anything contained in this Plan Trust Agreement to the contrary,
neither this Plan Trust Agreement, the Plan Trust Bylaws, the TDP, nor any
document annexed to the foregoing shall be modified or amended in any way that
could jeopardize, impair, or modify the applicability of section 524(g) of the
Bankruptcy Code, the efficacy or enforceability of the injunction entered
thereunder, or the Plan Trust's qualified settlement fund status under section
468B of the Internal Revenue Code.
7.4 Meetings. The Plan Trustees, the TAC, and the Futures Representative
shall be deemed to have attended a meeting in the event such person spends a
substantial portion of the day conferring, in person or by telephone conference
call, on Plan Trust matters with the TAC, the Futures Representative, or Plan
Trustees, as applicable. The Plan Trustees, the TAC and the Futures
Representative shall have complete discretion to determine whether a meeting, as
described herein, occurred for purposes of Sections 4.5, 5.7, and 6.5 above.
7.5 Severability. Should any provision in this Plan Trust Agreement be
determined to be unenforceable, such determination shall in no way limit or
affect the enforceability and operative effect of any and all other provisions
of this Plan Trust Agreement.
7.6 Notices. Notices to persons asserting claims shall be given by first
class mail, postage prepaid, at the address of such person, or, where
applicable, such person's legal representative, in each case as provided on such
person's claim form submitted to the Plan Trust with respect to his or her Plan
Trust Asbestos Claim.
(a) Any notices or other communications required or permitted hereunder to
the following parties shall be in writing and delivered at the addresses
designated below, or sent by electronic mail (email) or facsimile pursuant to
the instructions listed below, or mailed by registered or certified mail, return
receipt requested, postage prepaid, addressed as follows, or to such other
address or addresses as may hereafter be furnished in writing to each of the
other parties listed below in compliance with the terms hereof.
To the Plan Trust through the Plan Trustees:
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EXHIBIT D TO THE PLAN
To the TAC:
To the Futures Representative:
R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Young & Rediker, LLC
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Tower
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax:(▇▇▇) ▇▇▇-▇▇▇▇
To Debtors, Settlors, or Reorganized Debtors:
Congoleum Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Congoleum Sales, Inc.
c/o Congoleum Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Congoleum Fiscal, Inc.
c/o Congoleum Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to (which copy shall not constitute notice):
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Pillsbury ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
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EXHIBIT D TO THE PLAN
(b) All such notices and communications if mailed shall be effective when
physically delivered at the designated addresses or, if electronically
transmitted, when the communication is received at the designated addresses and
confirmed by the recipient by return transmission.
7.7 Successors and Assigns. The provisions of this Plan Trust Agreement
shall be binding upon and inure to the benefit of Congoleum, the Plan Trust, the
Plan Trustees and Reorganized Congoleum, and their respective successors and
assigns, except that neither Congoleum, the Plan Trust, the Plan nor Reorganized
Congoleum may assign or otherwise transfer any of its, or their, rights or
obligations under this Plan Trust Agreement except, in the case of the Plan
Trust and the Plan Trustees, as contemplated by Section 2.1 above.
7.8 Limitation on Claim Interests for Securities Laws Purposes. Plan Trust
Asbestos Claims, and any interests therein (a) shall not be assigned, conveyed,
hypothecated, pledged or otherwise transferred, voluntarily or involuntarily,
directly or indirectly, except by will or under the laws of descent and
distribution; (b) shall not be evidenced by a certificate or other instrument;
(c) shall not possess any voting rights; and (d) shall not be entitled to
receive any dividends or interest; provided, however, that clause (a) of this
Section 7.8 shall not apply to the holder of a claim that is subrogated to a
Plan Trust Asbestos Claim as a result of its satisfaction of such Plan Trust
Asbestos Claim.
7.9 Entire Agreement; No Waiver. The entire agreement of the parties
relating to the subject matter of this Plan Trust Agreement is contained herein
and in the documents referred to herein, and this Plan Trust Agreement and such
documents supersede any prior oral or written agreements concerning the subject
matter hereof. No failure to exercise or delay in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power or privilege hereunder preclude any further
exercise thereof or of any other right, power or privilege. The rights and
remedies herein provided are cumulative and are not exclusive of rights under
law or in equity.
7.10 Headings. The headings used in this Plan Trust Agreement are inserted
for convenience only and do not constitute a portion of this Plan Trust
Agreement, nor in any manner affect the construction of the provisions of this
Plan Trust Agreement.
7.11 Governing Law. This Plan Trust Agreement shall be governed by, and
construed in accordance with, the laws of the State of New Jersey without regard
to New Jersey conflict of law principles.
7.12 Settlor Representative and Cooperation. Congoleum is hereby
irrevocably designated as the Settlor, and it is hereby authorized to take any
action required of the Settlor in connection with the Plan Trust Agreement.
Congoleum agrees to cooperate in implementing the goals and objectives of this
Plan Trust.
7.13 Dispute Resolution. Any disputes that arise under this Plan Trust
Agreement or under the TDP shall be resolved by submission of the matter to an
alternative dispute resolution ("ADR") process mutually agreeable to the parties
involved. Should any party to the ADR process be dissatisfied with the decision
of the arbitrator(s), that party may apply to the Bankruptcy Court for a
judicial determination of the matter. In either case, if the dispute arose
26
EXHIBIT D TO THE PLAN
pursuant to the consent provision set forth in Section 5.8(b) (in the case of
the TAC) or Section 6.6(b) (in the case of the Futures Representative), the
burden of proof shall be on the party or parties who withheld consent to show
that the objection was valid. Should the dispute not be resolved by ADR process
within thirty (30) days after submission, the parties are relieved of the
requirement to pursue ADR prior to application to the Bankruptcy Court.
Notwithstanding anything else herein contained, to the extent any provision of
this Plan Trust Agreement is inconsistent with any provision of the Plan or the
TDP, the Plan or the TDP shall control.
7.14 Enforcement and Administration. The provisions of this Plan Trust
Agreement and the TDP attached hereto shall be enforced by the Bankruptcy Court
pursuant to the Plan. The parties hereby further acknowledge and agree that the
Bankruptcy Court shall have exclusive jurisdiction over the settlement of the
accounts of the Plan Trustees and over any disputes hereunder not resolved by
alternative dispute resolution in accordance with Section 7.13 above.
7.15 Effectiveness. This Plan Trust Agreement shall not become effective
until it has been executed and delivered by all the parties hereto.
7.16 Counterpart Signatures. This Plan Trust Agreement may be executed in
any number of counterparts, each of which shall constitute an original, but such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Plan Trust Agreement
this _____ day of ________________________, _______.
CONGOLEUM CORPORATION, SETTLOR, by
Name:
-------------------------------------
Title:
------------------------------------
CONGOLEUM SALES, INC., SETTLOR, by
Name:
------------------------------------
Title:
------------------------------------
CONGOLEUM FISCAL, INC., SETTLOR, by
Name:
------------------------------------
Title:
------------------------------------
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EXHIBIT D TO THE PLAN
PLAN TRUSTEES
------------------------------------------
------------------------------------------
------------------------------------------
ASBESTOS CLAIMANTS' COMMITTEE
------------------------------------------
TRUST ADVISORY COMMITTEE
------------------------------------------
------------------------------------------
------------------------------------------
------------------------------------------
------------------------------------------
FUTURES REPRESENTATIVE
------------------------------------------
R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
28