EXHIBIT 2.2
EXECUTION COPY
TAX MATTERS AND AMENDED
TRUST RELATIONSHIP AGREEMENT
THIS TAX MATTERS AND AMENDED TRUST RELATIONSHIP AGREEMENT (this
"Agreement"), dated as of June 22, 2000, between Xxxxx Xxxxxxxx
Corporation, a Delaware corporation (the "Company"), and Manville Personal
Injury Settlement Trust (the "Trust"), a New York trust.
WHEREAS, the Company is a party to the Amended and Restated
Manville Personal Injury Settlement Trust Agreement, dated as of April 29,
1997 (the "Trust Agreement"), among the Company and the Trustees named
therein;
WHEREAS, the Trust and the Company are parties to agreements
including the Second Amended and Restated Supplemental Agreement, dated as
of April 5, 1996, between the Trust and the Company (the "Supplemental
Agreement");
WHEREAS, pursuant to paragraph (ii) of Section 1807(a)(7)(C) of
the Tax Reform Act of 1986, the Company (or any successor thereof) is
liable for the tax imposed by Section 468B of the Code with respect to the
income of the Trust (the "Statutory Tax Provision"); and
WHEREAS, the Company and the Trust desire to amend the
Supplemental Agreement and the Trust Agreement to be effective as of the
Closing.
NOW, THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the adequacy and receipt of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Terms Defined. The following terms used
herein shall have the meanings ascribed to them in this Article I.
"Agreement" shall have the meaning set forth in the recitals.
"Amended Supplemental Agreement" shall have the meaning set
forth in Section 3.1 hereof.
"Closing" shall have the meaning set forth in Section 4.3
hereof.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" shall have the meaning set forth in the recitals.
"Company Amount" shall have the meaning set forth in Section
2.1 hereof.
"Court" shall mean the United States Bankruptcy Court for the
Southern District of New York (or such other court as may be administering
the Cases (as defined in the Supplemental Agreement)) and, with respect to
any particular proceeding within a Case, any other court which may be
exercising jurisdiction over such proceeding.
"Designated Settlement Fund" shall mean the non-grantor trust
portion of the settlement fund established for claimants against the
Company which filed a petition for reorganization under Chapter 11 of Title
11, United States Code on August 26, 1982, pursuant to Section 1807(a)(7)
(C) (i) of the Tax Reform Act of 1986.
"Final Order" means (a) a judgment, order or other decree
issued and entered by the Court or by any state or other federal court or
other tribunal located in one of the states, territories or possessions of
the United States or the District of Columbia, which judgment, order or
decree (x) has not been reversed or stayed and as to which the time to
appeal has expired and as to which no appeal or petition for review,
rehearing or certiorari is pending or (y) with respect to which any appeal
has been finally decided and no further appeal or petition for certiorari
can be taken or granted; or (b) stipulation or other agreement entered into
which has the effect of any such judgment, order or other decree.
"Futures Representative" shall mean Xxxxxx Xxxxxx Xxxxx, the
successor to the Legal Representative of the Future Claimants against the
Trust appointed pursuant to the Second Amended and Restated Plan of
Reorganization of the Company or any of his successors in such capacity.
"Governmental Agency" shall mean any domestic, foreign,
supranational, national, federal, state, regional or local government and
any department, bureau, agency, authority, commission, board, court,
tribunal, or other legislative, executive, judicial, regulatory or
administrative body or instrumentality of any such government or any
official empowered to act on behalf of any of the foregoing, or any
arbitral tribunal acting within the proper scope of its jurisdiction.
"Indemnified Parties" shall have the meaning set forth in
Section 2.2 hereof.
"Merger" shall mean the merger contemplated by the Merger
Agreement.
"Merger Agreement" shall mean the Agreement and Plan of Merger
among HB Merger LLC, a Delaware limited liability company, HB Finance LLC,
a Delaware limited liability company, and the Company, dated as of the date
hereof.
"Order" shall have the meaning set forth in Section 6.1(c).
"SCB" shall mean the Selected Counsel for the Beneficiaries
appointed pursuant to the Second Amended and Restated Plan of
Reorganization of the Company.
"Statutory Tax Provision" shall have the meaning set forth in
the recitals.
"Supplemental Agreement" shall have the meaning set forth in
the recitals.
"TM Exchange Agreement" shall have the meaning set forth in the
Merger Agreement.
"Tax" or "Taxes" shall mean all federal, state, local, or
foreign taxes, assessments, duties, levies or similar charges of any kind
imposed on the income of the Designated Settlement Fund (including, without
limitation, any Tax imposed pursuant to the Statutory Tax Provision) and
including any interest, fines, penalties, assessments or additions to Tax
resulting from, attributable to or incurred in connection with any such Tax
or any contest or dispute thereof.
"Tax Return" shall mean any return, declaration, report, claim
for refund, or information return or statement relating to Taxes of the
Designated Settlement Fund or any amendment thereto, and including any
schedule or attachment thereto.
"Trust" shall have the meaning set forth in the recitals.
"Trust Agreement" shall have the meaning set forth in the
recitals.
"Trust Amendment" shall have the meaning set forth in Section
3.2.
"Trustees" shall have the meaning set forth in the Supplemental
Agreement.
"Trust Voting Agreement" shall have the meaning set forth in
the Merger Agreement.
ARTICLE II
LIMITATION OF TAX LIABILITY
Section 2.1 Satisfaction of Tax Liability. At the Closing
provided for in Section 4.3 hereof and in accordance with the provisions of
this Agreement, the Company shall pay to the Trust by wire transfer of
immediately available funds to an account designated by the Trust an amount
in cash equal to $90,000,000 (the "Company Amount").
Section 2.2 Trust Payment and Indemnity. (a) The Trust hereby
covenants and agrees, from and after the Closing, to (i) duly and timely
(taking into account any applicable extensions) file all Tax Returns
required to be filed by the Trust with the appropriate taxing authority and
pay any and all Taxes as and when due and payable and (ii) indemnify,
defend and hold harmless the Company and any of its successors, affiliates
and subsidiaries and each of the officers, directors and employees of the
Company or such successors, affiliates or subsidiaries (the "Indemnified
Parties") in respect of (A) the Taxes referred to in clause (i) above, (B)
any costs, expenses, losses, penalties and damages (other than
consequential damages and lost profits) arising from such Taxes (including
reasonable fees and expenses of counsel and other litigation and settlement
costs, but excluding any taxes imposed on the Indemnified Parties in
respect of the payment for any Taxes imposed with respect to income
attributable to the Trust) which an Indemnified Party shall have suffered
or incurred, and (C) until the expiration of the applicable statute of
limitations any taxes and costs, expenses (including reasonable fees and
expenses of counsel and other litigation and settlement costs), losses,
penalties and damages (other than consequential damages and lost profits)
relating thereto (collectively "Losses") suffered or incurred by any
Indemnified Party resulting from or arising out of the breach of any
representations contained in Section 5.1(e) hereof, provided, however, that
the foregoing shall not relieve the Company of liability for (and the Trust
shall not be obligated to indemnify, defend or hold harmless the
Indemnified Parties for) its obligation to pay the amount required to be
paid by the Company pursuant to Section 2.2(b), and provided further, that
the Trust shall have no responsibility to indemnify, defend or hold
harmless any Indemnified Party for any Losses which result from the gross
negligence or willful misconduct of any Indemnified Party.
(b) Within 30 days following the end of the month in
which the Closing occurs, the Trust will provide to the Company a
certificate of an authorized representative of the Trust certifying the
taxable income of the Trust for the portion of the taxable year or period
ending on the date of the Closing, together with a schedule showing in
reasonable detail the calculation of taxable income of the Trust. Such
certificate shall state that the Trust will pay to the Internal Revenue
Service or other applicable taxing authority the amount of Tax payment
being sought from the Company pursuant to this Section 2.2(b) following
remittance of such payment from the Company to the Trust. The Trust will
calculate the taxable income of the Trust for the portion of the taxable
year or period ending on the date of the Closing by adding (i) the taxable
income attributable to the Designated Settlement Fund (including any
capital gains or losses) through the month ending prior to the date of the
Closing, (ii) the taxable income attributable to the Designated Settlement
Fund (excluding any capital gains or losses) for the month including the
date of the Closing, multiplied by a fraction equal to (x) the total number
of days in such month up to and including the date of the Effective Time,
divided by (y) the total number of days in such month, and (iii) the amount
of any capital gains and losses incurred by the Designated Settlement Fund
during the month of the Closing, to the extent that the asset generating
such capital gain or loss is sold on or before the date of the Closing. The
Company will remit to the Trust by wire transfer of immediately available
funds an amount equal to (i)(a) the taxable income of the Trust calculated
as set forth in the immediately preceding sentence, multiplied by (b) the
applicable tax rate of the Trust, minus (ii) any estimated Tax payments
previously paid to the Trust for the portion of the taxable year or period
of the Trust ending on the date of the Closing net of Taxes paid by the
Trust not yet reimbursed by the Company to the extent the Company is
obligated to reimburse the Trust for such Taxes, not later than five
business days before the due date for payment of such Taxes.
(c) Following the date hereof until and including the
date of the Closing, the Trust will manage its investments in and the
expenses of the Designated Settlement Fund consistent with past practice;
provided, that the foregoing shall not prevent the Trustees from being
entitled at all times to act as required by their fiduciary duties under
applicable law.
Section 2.3 Notice of Payments; Information.
(a) At least ten (10) days prior to the due date for
filing a Tax Return (including applicable extensions), the Trust shall
provide the Company with draft copies of such Tax Return. In no event shall
the Trust be required to provide any work papers underlying its Tax
Returns. The Company shall only have the right to review and comment on
such Tax Returns, and in the event the Company disagrees with any
information contained in such Tax Return, the Company shall not have the
right to institute the dispute procedures provided in Section 2.7 hereof.
(b) Within 10 business days after filing any Tax Return
the Trust shall deliver to the Company a copy of such Tax Return and, with
respect to any Tax Return filed on an annual basis, a notice setting forth
the amount of Taxes paid during the twelve months preceding such Tax
Return.
(c) The Company shall have the right to review the
accounts of the Trust and to discuss the affairs, finances and accounts of
the Trust with the Trustees and the officers of the Trust to the extent
that such affairs, finances and accounts may reasonably be related to
calculating the Trust's Tax liability or reviewing the Tax Returns of the
Trust, all at such reasonable times and intervals as the Company may
reasonably request and at the expense of the Company and, in any event,
only during normal business hours.
(d) The Company shall retain in strict confidence all
information supplied to it by the Trust pursuant to this Agreement, except
to the extent that (i) the Company is compelled to disclose such
information as a result of court order, subpoena or similar legal duress
or, in the opinion of counsel to the Company, is otherwise required to
disclose such information to any governmental department, agency,
authority, commission or other body, it being understood that the Company
shall consult with the Trust upon receiving such an order or subpoena or in
connection with obtaining such an opinion as part of its good faith
determination as to whether disclosure is required or (ii) any such
information is or becomes generally available to the public other than as a
result of a disclosure by the Company or its subsidiaries or any of their
employees, representatives or agents.
Section 2.4 Indemnification Procedures. Each Indemnified Party
shall, upon receipt of written notice of any claim or the service of any
summons or other initial legal process upon it in any action instituted
against it, in respect of which indemnity may be sought on account of the
indemnity agreement contained in Section 2.2 hereof, promptly give written
notice of such claim, but in any event within 10 business days after
receipt of such notice by the Indemnified Party, or the commencement of
such action to the Trust; provided, however, that the failure to promptly
provide such notice within such time period shall not affect the rights of
such Indemnified Party to indemnification hereunder except to the extent
the Trust is prejudiced thereby. The Trust shall assume the defense of such
claim or action, and (i) such defense shall be conducted by counsel chosen
by the Trust, which counsel shall be reasonably satisfactory to the
Indemnified Party against whom the claim is asserted or who is the
defendant in such action, and (ii) such Indemnified Party may retain
additional counsel; provided, however, that such Indemnified Party shall
bear all of the fees and expenses of any counsel retained by it, except
that if an actual conflict of interest exists between the Trust and an
Indemnified Party, the Trust will pay the reasonable fees and expenses of
any counsel reasonably satisfactory to the Trust retained by such
Indemnified Party. The Trust shall not be entitled to settle or compromise
any such claim or action unless at the time of such settlement and
compromise such liability is fully satisfied by the Trust.
Section 2.5 No Further Taxes. Except as provided in Section
2.2(b), from and after the Closing, the Company shall have no further
obligation to indemnify and pay the Trust in respect of any Taxes,
non-income taxes of the Designated Settlement Fund, costs, expenses, losses
and damages (including fees and expenses of counsel and other litigation
and settlement costs), regardless of when incurred, in connection with any
Taxes and non-income taxes of the Designated Settlement Fund, imposed upon
the Trust at any time.
Section 2.6 Transfers to Designated Settlement Fund. Following
the Effective Time (as defined in the Merger Agreement), the Trust shall
transfer to the Designated Settlement Fund all assets received by the
grantor trust portion of the Trust that would constitute Qualified Payments
(as defined in section 468B(d) of the Code) immediately following receipt
of such assets.
Section 2.7 Dispute Procedures. Except as otherwise provided in
Section 2.3(a) hereof, any dispute between the Trust and the Company as to
any matter in Section 2.2 or 2.3 hereof shall be resolved by a mutually
acceptable independent nationally recognized accounting firm. The Trust and
the Company will instruct such accounting firm to reach its conclusion
regarding any such dispute and to name the party to such dispute that has
lost such dispute within twenty (20) days after its appointment. The report
of such accounting firm shall be final, binding and conclusive on the
parties. The fees and expenses of such accounting firm shall be borne by
the party to such dispute that such accounting firm determines has lost
such dispute.
ARTICLE III
OTHER MATTERS
Section 3.1 Supplemental Agreement. At the Closing, the parties
hereto shall enter into the Third Amended and Restated Supplemental
Agreement in the form attached as Exhibit A hereto (the "Amended
Supplemental Agreement"), whereupon the Supplemental Agreement shall be
amended and restated as set forth in the Amended Supplemental Agreement,
and shall thereafter continue in full force and effect as so amended and
restated.
Section 3.2 Trust Agreement. At the Closing, the Company shall,
and the Trust shall cause the Trustees to, enter into the Amendment to the
Trust Agreement in the form attached as Exhibit B hereto (the "Trust
Amendment") whereupon the Trust Agreement shall be amended as set forth in
the Trust Amendment, and shall thereafter continue in full force and effect
as so amended.
Section 3.3 Escrow Agreement. At the Closing, the Company and
the Trust shall enter into the Escrow Agreement in the form attached as
Exhibit C hereto (the "Escrow Agreement").
ARTICLE IV
OTHER DELIVERIES AND AGREEMENTS
Section 4.1 Company Deliveries at Closing. At the Closing,
the Company shall deliver to the Trust:
(a) the Company Amount;
(b) the Amended Supplemental Agreement executed by
the Company;
(c) the Trust Amendment executed by the Company;
(d) the Escrow Agreement executed by the Company;
and
(e) a certificate delivered by an officer of the
Company confirming the accuracy of the matters set forth in
Section 6.1(a).
Section 4.2 Trust Deliveries at Closing. At the Closing,
the Trust shall deliver or cause to be delivered to the Company:
(a) the Amended Supplemental Agreement executed by
the Trust;
(b) the Trust Amendment executed by the Trustees;
(c) the Escrow Agreement executed by the Trust; and
(d) certificate delivered by an officer of the Trust
confirming the accuracy of the matters set forth in Section 6.2(a).
Section 4.3 Closing. The consummation of the transactions
contemplated by this Agreement (the "Closing") will take place at the
offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Four Times Square, New
York, New York concurrently with the satisfaction or waiver of the last to
be satisfied or waived of the conditions set forth in Article 6 or at such
other time and place as the parties hereto may agree.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.1 Representations and Warranties of the Trust. The
Trust represents and warrants to the Company as of the date of this
Agreement and as of the Closing that:
(a) The Trust has been duly organized and is validly
existing as a trust under the laws of the State of New York. The Trust has
all requisite power and authority to execute and deliver this Agreement,
the TM Exchange Agreement, the Stockholders' Agreement, the Escrow
Agreement and the Amended Supplemental Agreement and to consummate the
transactions contemplated hereby and thereby. The Trustees have all
requisite power and authority to execute and deliver the Trust Amendment.
The execution and delivery of this Agreement, the Amended Supplemental
Agreement, the TM Exchange Agreement, the Stockholders' Agreement, the
Escrow Agreement and the Trust Amendment, and the consummation of the
transactions contemplated hereby and thereby, have been duly and validly
authorized by the Trust or the Trustees, as the case may be, and no other
proceedings on the part of the Trust or the Trustees, as the case may be,
are necessary to authorize the execution and delivery of such agreements
or, except for obtaining the concurrence of the SCB and the Futures
Representative as provided in Sections 6.1(b) and 6.2(b) and the issuance
and effectiveness of the Order as provided in Sections 6.1(c) and 6.2(c),
the consummation of the transactions contemplated hereby and thereby.
(b) This Agreement and the TM Exchange Agreement have
been (and the Stockholders' Agreement, the Amended Supplemental Agreement,
the Escrow Agreement and the Trust Amendment when delivered will have been)
duly executed and delivered by the Trust or the Trustees, as the case may
be, and this Agreement and the TM Exchange Agreement constitute (and the
Stockholders' Agreement, the Amended Supplemental Agreement, the Escrow
Agreement and Trust Amendment when executed and delivered will constitute)
a valid and legally binding obligation of the Trust or the Trustees, as the
case may be, enforceable against the Trust or the Trustees, as the case may
be, in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors rights and to general
equity principles.
(c) None of the execution and delivery by the Trust of
this Agreement, the Amended Supplemental Agreement, the TM Exchange
Agreement, the Stockholders' Agreement or the Escrow Agreement, the
execution and delivery by the Trustees of the Trust Amendment, the
consummation by the Trust or the Trustees, as the case may be, of the
transactions contemplated hereby and thereby nor compliance by the Trust
with the terms and conditions of such agreements will (A) conflict with or
result in a breach of, or constitute a default under, or require any
consent or waiver under, any of the terms, obligations, covenants,
conditions or provisions of (i) any indenture, mortgage, deed of trust,
pledge, bank loan or credit agreement, or other agreement or instrument to
which the Trust is a party or by which it or its assets may be bound (other
than the Trust Agreement) or (ii) the Trust Agreement or (B) conflict with
or result in a breach of, or require any consent or waiver under any of the
terms, conditions or provisions of any statute, judgment, order, writ,
injunction, decree, rule or regulation of any Governmental Agency subject
to the Trust's obtaining the concurrence of the SCB and the Futures
Representative as provided in Sections 6.1(b) and 6.2(b), the issuance and
effectiveness of the Order as provided by Sections 6.1(c) and 6.2(c); and
except in the case of (A)(i) or (B) for any such conflict, breach or
default that would not prevent or materially delay the consummation of the
transactions contemplated hereby and would not be reasonably expected to,
individually or in the aggregate, have a material adverse effect on the
Trust.
(d) All necessary licenses, permits, consents, approvals,
authorizations, qualifications and orders of Governmental Agencies (if any)
and other persons required to be received by the Trust in order to
consummate the transactions contemplated hereby have been received by the
Trust, except those listed on Schedule 5.1(d) and except for those which
the failure to receive would not prevent or materially delay the
consummation of the transactions contemplated hereby.
(e) Except as set forth on Schedule 5.1(e), (i) the Trust
has filed all material Tax Returns required to be filed with any taxing
authority in accordance with all applicable laws, has timely paid all Taxes
required to be paid with respect to such Tax Returns and all such Tax
Returns were true, correct and complete in all material respects; (ii) to
the knowledge of the Trust there is no action, suit, proceeding,
investigation, audit or claim pending or threatened, against or with
respect to the Trust in respect of any Tax; (iii) no material deficiencies
for any Taxes have been proposed, asserted or assessed against the Trust
that have not been fully paid; (iv) the Trust has not (A) waived any
statute of limitations with respect to Taxes or (B) agreed to any extension
of time within which to file any Tax Return since January 1, 1998; (v)
since January 1, 1995, the Trust has not entered into any closing agreement
with respect to Taxes pursuant to Section 7121 of the Code or any
predecessor provision or any similar provision of state, local or foreign
Tax law; (vi) no claim has been made in writing and provided to the Trust
by a taxing authority in a jurisdiction where the Trust does not file Tax
Returns to the effect that the Trust is or may be subject to Taxation by
that jurisdiction; and (vii) none of the trustees of the Trust (a) has ever
been employed by the Company or any of its affiliates in any capacity,
except that one or more Trustees serve or have served on the Board of
Directors of the Company from time to time, (b) is affiliated with a
significant customer of, or supplier to, the Company or any of its
affiliates, or (c) except for shares of Company Common Stock (as defined in
the Merger Agreement) owned of record by the Trust or stock owned
indirectly through mutual funds, owns, or has owned during the period such
Trustee has been a Trustee of the Trust, any stock or securities in the
Company or any of its affiliates.
Section 5.2 Representations and Warranties of the Company. The
Company represents and warrants to the Trust as of the date of this
Agreement and as of the Closing that:
(a) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware. The Company has all corporate power and authority to execute and
deliver this Agreement, the Amended Supplemental Agreement, the Trust
Amendment, the Stockholders' Agreement, the Escrow Agreement and the TM
Exchange Agreement, and to consummate the transactions contemplated hereby
and thereby. The execution and delivery by the Company of this Agreement,
the Amended Supplemental Agreement, the Trust Agreement, the Stockholders'
Agreement, the Escrow Agreement and the TM Exchange Agreement, and the
consummation of the transactions contemplated hereby and thereby, have been
duly and validly authorized by the Company, and no other proceedings on the
part of the Company are necessary to authorize the execution and delivery
of this Agreement, the Amended Supplemental Agreement, the Stockholders'
Agreement, the Escrow Agreement, the TM Exchange Agreement or the Trust
Amendment, or the consummation of the transactions contemplated hereby and
thereby.
(b) This Agreement and the TM Exchange Agreement have
been (and the Amended Supplemental Agreement, the Trust Amendment, the
Stockholders' Agreement and the Escrow Agreement when delivered will have
been) duly executed and delivered by the Company, and this Agreement and
the TM Exchange Agreement constitute (and the Amended Supplemental
Agreement, the Stockholders' Agreement, the Escrow Agreement and the Trust
Amendment when executed and delivered will constitute) a valid and legally
binding obligation of the Company, enforceable against the Company in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditor rights and to general
equity principles.
(c) None of the execution and delivery by the Company of
this Agreement, the Amended Supplemental Agreement, the Trust Amendment,
the Stockholders' Agreement, the Escrow Agreement and the TM Exchange
Agreement, the consummation by the Company of the transactions contemplated
hereby and thereby nor compliance by the Company with the terms and
conditions of such agreements will (A) conflict with or result in a breach
of, or constitute a default under, or require any consent or waiver under,
any of the terms, obligations, covenants, conditions or provisions of (i)
any indenture, mortgage, deed of trust, pledge, bank loan or credit
agreement, or other agreement or instrument to which the Company is a party
or by which it or its assets may be bound (other than the certificate of
incorporation and by-laws of the Company) or (ii) the certificate of
incorporation or by-laws of the Company or (B) conflict with or result in a
breach of any of the terms, conditions or provisions of any statute,
judgment, order, writ, injunction, decree, rule or regulation of any
Governmental Agency; except in the case of (A)(i) or (B) for any such
conflict, breach or default that would not prevent or materially delay the
consummation of the transactions contemplated hereby and would not be
reasonably expected to, individually or in the aggregate, have a material
adverse effect on the Company.
(d) All necessary licenses, permits, consents, approvals,
authorizations, qualifications and order of Governmental Agencies (if any)
and other persons required to be received by the Company in order to
consummate the transactions contemplated hereby have been received by the
Company, except for those which the failure to receive would not prevent or
materially delay the consummation of the transactions contemplated hereby.
ARTICLE VI
CONDITIONS
Section 6.1 Conditions Precedent to the Obligations of the
Trust. The obligation of the Trust to effect the Closing is subject to the
satisfaction, or waiver by the Trust, of the following conditions:
(a) The representations and warranties of the Company
contained in this Agreement shall be true and correct in all material
respects as of the date when made and as of the Closing and all agreements
contained in this Agreement to be performed by the Company prior to or at
the Closing shall have been performed.
(b) The Trust shall have obtained the respective
concurrences of the SCB and the Futures Representative to the Amended
Supplemental Agreement and the Trust Amendment in a form reasonably
acceptable to the Trust.
(c) An order (the "Order") of the Court shall have been
issued granting the application of the Trustees to (i) approve the Trust's
execution and performance of the TM Exchange Agreement, the Stockholders'
Agreement, the Escrow Agreement (provided that the Order shall not be
deemed to not have been obtained if the provisions therein regarding the
separate order referred to therein shall not have been obtained) and this
Agreement and the transactions contemplated hereby and thereby, including,
without limitation, the Merger and the execution and performance of the
Amended Supplemental Agreement and the Trust Amendment; (ii) approve the
Trusts's execution and performance of the Trust Voting Agreement and the
transactions contemplated thereby (the TM Exchange Agreement, the
Stockholders' Agreement, the Escrow Agreement, this Agreement, the Amended
Supplemental Agreement, the Trust Amendment and the Trust Voting Agreement
are referred to herein as the "Trust Merger Agreements"); (iii) discharge
fully the Trustees from any and all liabilities relating to or arising from
the execution and delivery of and performance of its obligations under the
Trust Merger Agreements and discharge fully the Trustees from any and all
liabilities relating to or arising from the consummation of the
transactions contemplated by the Trust Merger Agreements (other than the
Trustees' obligations to the other parties under the Trust Merger
Agreements), and (iv) approve the transfer of all assets of the grantor
trust portion of the Trust that would constitute Qualified Payments (as
defined in Section 468B(d) of the Code) to the Designated Settlement Fund
immediately following the receipt of such amount (and from time to time
thereafter following receipt as provided in Section 2.6), after notice to
all beneficiaries of the Trust (by notice to the appropriate class and
subclass representatives' counsel), the SCB and the Future Representatives,
all in a form reasonably acceptable to the Trust, which Order shall be in
full force and effect but may be subject to appeal or discretionary review
by another court; provided, however, that if upon its review of objections
raised to the issuance of the Order, the Trust believes in good faith after
consultation with the Company that, as a condition to the Trust's
obligations under this Agreement, the Order should be a Final Order, then
for purposes of this condition the Trust may require that the Order be a
Final Order.
(d) (i) The Trust shall have received all necessary
licenses, permits, consents, approvals, authorizations, qualifications and
orders contained on Schedule 5.1(d) and (ii) there shall not be any
effective injunction, writ, preliminary restraining order or other order of
any nature issued by a court of competent jurisdiction, and no person shall
have commenced any proceeding which would be reasonably likely to result in
the issuance of any such injunction, writ, preliminary restraining order or
other order, in each case prohibiting the consummation of the transactions
contemplated hereby.
(e) The Merger shall have been consummated.
Section 6.2 Conditions Precedent to the Obligations of the
Company. The obligation of the Company to effect the Closing is subject to
the satisfaction, or waiver by the Company, of the following conditions:
(a) The representations and warranties of the Trust
contained in this Agreement shall be true and correct in all material
respects as of the date when made and as of the Closing and all agreements
contained in this Agreement to be performed by the Trust prior to or at the
Closing shall have been performed.
(b) The Trust shall have obtained the respective
concurrences of the SCB and the Futures Representative to the Amended
Supplemental Agreement and the Trust Amendment in a form reasonably
acceptable to the Company.
(c) The Order shall have been issued and be in a form
reasonably acceptable to the Company, which Order shall be in full force
and effect but may be subject to appeal or discretionary review by another
court; provided, however, that if upon its review of objections raised to
the issuance of the Order, the Company believes in good faith after
consultation with the Trust that, as a condition to the Company's
obligations under this Agreement, the Order should be a Final Order, then
for purposes of this condition the Company may require that the Order be a
Final Order.
(d) There shall not be any effective injunction, writ,
preliminary restraining order or other order of any nature issued by a
court of competent jurisdiction, and no person shall have commenced any
proceeding which would be reasonably likely to result in the issuance of
any such injunction, writ, preliminary restraining order or other order, in
each case prohibiting the consummation of the transaction contemplated
hereby.
(e) The Merger shall have been consummated.
(f) The Trust shall have irrevocably instructed its
relevant banking institution(s) that (1) the Company Amount and (2) all of
the cash proceeds paid to the Trust as a result of the conversion of its
shares of Company Common Stock pursuant to the Merger, upon receipt, shall
be immediately transferred to the Designated Settlement Fund portion of the
Trust by transfer of immediately available funds.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Commercially Reasonable Efforts by the Trust. The
Trust agrees to use its commercially reasonable efforts to (i) obtain as
soon as reasonably possible after the date hereof all consents necessary
for it to perform its obligations under this Agreement, the Amended
Supplemental Agreement and the Trust Amendment and to consummate the
transactions contemplated hereby, including, without limitation, the
concurrence of the SCB and the Futures Representative as contemplated in
Sections 6.1(b) and 6.2(b) and (ii) take, or cause to be taken, all action
and to do, or cause to be done all things reasonably necessary, proper or
advisable under applicable laws and regulations to obtain the Order;
provided, however that nothing contained in this Agreement shall be deemed
to require the Trust to consummate the Merger other than as required in
accordance with the Voting Agreement, subject to the terms and conditions
thereof. The Trust shall furnish to the Company copies of all motions and
filings made by the Trust with the Court in connection with any other
information supplied by the Trust to a Governmental Agency in connection
with the Order.
Section 7.2 Commercially Reasonable Efforts by the Company. The
Company shall use its commercially reasonable efforts to obtain as soon as
reasonably possible after the date hereof all consents necessary for it to
perform its obligations under this Agreement, the Amended Supplemental
Agreement and the Trust Amendment, and to consummate the transactions
contemplated hereby; provided, however, that nothing contained in this
Agreement shall be deemed to require the Company to consummate the Merger
other than as required in accordance with the Merger Agreement, subject to
the terms and conditions thereof.
Section 7.3 Termination. If (i) the Merger shall not have
occurred on or prior to November 30, 2000; provided, however, that such
date shall be automatically be extended to December 28, 2000 if the Special
Meeting (as defined in the Merger Agreement) shall not have been held on or
prior to November 1, 2000; and provided further that if the Special Meeting
shall not have been held on or prior to December 1, 2000 such date shall
automatically be extended to the later of December 28, 2000 or that date
which is 15 Business Days (as defined in the Merger Agreement) after the
Special Meeting is held but in no event shall such date extend beyond
January 31, 2001, or such other date, if any, as the Trust and the Company
shall agree in writing, or (ii) the Merger Agreement shall have been
terminated, then either party shall have the right to terminate this
Agreement by giving written notice to the other party hereto. If the Order
is denied by the Court, or if prior to the Effective Time, the Order is
vacated, reversed, modified or amended, in whole or in part, so as to
materially limit the Court's approval of the Trust's execution and
performance of its obligations under the Trust Merger Agreements and the
transactions contemplated hereby and thereby, including, without
limitation, the Merger, either party shall have the right to terminate this
Agreement, by giving written notice of termination to the other party. Upon
the termination of the Trust in accordance with the terms of the Trust
Agreement, this Agreement shall terminate without notice to the Company,
provided that the Trust shall have made adequate provision for any accrued,
but unpaid Taxes reflected, or that should have been reflected in
accordance with United States generally accepted accounting principles, on
the books and records of the Trust and any other liabilities under this
Agreement.
Section 7.4 Effect of Termination. In the event of termination
of this Agreement pursuant to this Article VII, this Agreement shall become
void and of no effect with no liability hereunder on the part of any party
hereto (or of any of its directors, trustees, officers, employees, agents,
legal and financial advisors or other representatives); provided that
termination shall not relieve any party from liability for any willful
breach of this Agreement prior to the termination hereof.
Section 7.5 Amendments. This Agreement may be modified,
supplemented or amended at any time and from time to time only by a writing
signed by each party hereto.
Section 7.6 Trust Deposit. Immediately following the Closing,
the Trust shall have deposited into the Escrow Account (as defined in the
Escrow Agreement) the amounts required under Section 1.1 of the Escrow
Agreement.
Section 7.7 Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including
facsimile transmission or similar writing) and shall be given:
if to the Trust, to:
Manville Personal Injury Settlement Trust
000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Chairman and Managing Trustee
with a copy to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxxxx, Esq.
if to the Company, to:
Xxxxx Xxxxxxxx Corporation
000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: Corporate Secretary
with copies to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Fax: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxx, Esq.
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: L. Xxxxxx Xxxxxxx, Esq.
and, after the Closing
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxx, Esq.
Section 7.8 Counterparts; Integration. This Agreement may be
signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the
same instrument. This Agreement together with the Amended Supplemental
Agreement, the Exhibits hereto and the Schedules hereto constitutes the
entire agreement and understanding between the parties hereto relating to
the subject matter hereof and supersedes any and all prior agreements and
understandings, oral and written, relating to the subject matter hereof.
Section 7.9 Headings. The headings used in this Agreement are
inserted for convenience only, and neither constitute a portion of this
Agreement nor in any manner affect the construction of the provisions of
this Agreement.
Section 7.10 Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors. Except for the right of the Company
to assign its rights and delegate its obligations to its successors,
neither the Company nor the Trust may assign or otherwise transfer any of
its rights or delegate any of its obligations under this Agreement.
Section 7.11 Survival of Representations and Warranties. The
representations and warranties of the parties contained in this Agreement
shall survive the Closing indefinitely.
Section 7.12 Specific Performance. Each of the Company and the
Trust agrees that the other party would be irreparably damaged if for any
reason the Company or the Trust, as the case may be, failed to perform its
obligations under this Agreement and that such other party would not have
an adequate remedy at law for money damages in such event. Accordingly, the
Company and the Trust each agrees that the other party shall, to the
maximum extent permitted, be entitled to specific performance and
injunctive and other relief to enforce the performance of this Agreement.
This provision is without prejudice to any other rights that the Company or
the Trust may have against the other party for any failure of such other
party to perform its obligations hereunder.
Section 7.13 Third Parties. This Agreement constitutes an
agreement solely between the parties hereto, and is not intended to and
shall not confer any rights, remedies, obligations or liabilities, legal or
equitable, on any person or entity other than the parties hereto and their
respective successors and assigns, or otherwise constitute any person or
entity a third-party beneficiary under or by reason of this Agreement;
provided that the foregoing shall not be deemed to impermissibly diminish
the equitable interest, if any, that the Trust beneficiaries may otherwise
have herein by reason of their status.
Section 7.14 GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK, INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK
GENERAL OBLIGATIONS LAW. SUBJECT TO SECTION 2.7 HEREOF, THE COMPANY AND THE
TRUST HEREBY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES
BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR PURPOSES OF ALL
LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE COMPANY AND THE TRUST
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, (I) ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF
ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH
PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM AND (II) ALL RIGHTS TO TRIAL BY JURY IN ANY SUCH PROCEEDING.
Section 7.15 Further Assurances. From time to time after the
Closing, at the request of one of the parties hereto, the Trust and the
Company shall execute and deliver to such requesting party such documents
and take such other action as such requesting party may reasonably request
in order to consummate more effectively the transactions contemplated
hereby.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and
year first above written.
XXXXX XXXXXXXX CORPORATION
By: /s/ Xxxx Xxxxxxx
--------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President, Assistant
General Counsel and
Secretary
MANVILLE PERSONAL INJURY SETTLEMENT
TRUST
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer
EXHIBIT A
FORM OF
MANVILLE PERSONAL INJURY
SETTLEMENT TRUST
THIRD AMENDED AND RESTATED
SUPPLEMENTAL AGREEMENT
DATED AS OF ____________, 2000
THIRD AMENDED AND RESTATED SUPPLEMENTAL AGREEMENT
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS...........................................................3
ARTICLE II
PAYMENTS..............................................................4
2.01 Reimbursement Obligations. ...........................4
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.........................5
3.01 Organization, Etc. ...................................5
3.02 Authorization. .......................................5
ARTICLE IV
MISCELLANEOUS.........................................................5
4.01 Termination. .........................................5
4.02 Amendments; Waiver. ..................................5
4.03 Severability. ........................................5
4.04 Notices. .............................................6
4.05 Counterparts. ........................................7
4.06 Successors and Assigns. ..............................7
4.07 Entire Agreement; No Waiver. .........................7
4.08 Headings. ............................................7
4.09 Governing Law. .......................................7
4.10 Third Parties. .......................................7
4.11 Survival of Covenants and Agreements. ................8
4.12 Confidentiality. .....................................8
4.13 [Reserved].............................................8
4.14 Effective Date. ......................................8
Exhibit A - Glossary
THIRD AMENDED AND RESTATED SUPPLEMENTAL AGREEMENT
Agreement dated as of ______________, 2000 between Manville
Personal Injury Settlement Trust (the "Trust") and Xxxxx Xxxxxxxx
Corporation (the "Company").
WHEREAS, the Company and the Trust have heretofore entered
into the Supplemental Agreement dated November 28, 1988, which was amended
and restated as of November 15, 1990 and further amended on August 25, 1993
and September 22, 1994 and further amended and restated on April 5, 1996
(as so amended and restated, the "Supplemental Agreement");
WHEREAS, the Company and the Trust are parties to a Tax
Matters and Amended Trust Relations Agreement, dated as of June 22, 2000
("the Tax Matters Agreement"), which, inter alia, contemplates the
execution and delivery of this Third Amended and Restated Supplemental
Agreement; and
WHEREAS, pursuant to Section 6.02 of the Supplemental
Agreement (as in effect prior to the date hereof) the Company and the Trust
are empowered to modify, supplement or amend the Supplemental Agreement.
NOW, THEREFORE, the parties hereto agree to amend and
restate the Supplemental Agreement in its entirety as follows:
ARTICLE I
DEFINITIONS
Unless the context requires otherwise, all capitalized terms
not otherwise defined herein have the meanings assigned to them in Exhibit
A hereto. Terms defined in Exhibit A hereto are not intended to change any
of the definitions used in the Plan. All references to the Supplemental
Agreement hereinafter made or made in any other document or instrument
shall refer to the Supplemental Agreement as amended and restated hereby.
ARTICLE II
PAYMENTS
2.01 Reimbursement Obligations. (a) The Trust shall
indemnify the Company in respect of all costs, expenses, losses and damages
(including, except as limited by Paragraph (c) below, fees and expenses of
counsel and other litigation and settlement costs) when and as incurred by
the Company in connection with any Trust Claim or Indemnification Liability
asserted against the Company, provided that the Company shall use its best
efforts to cause such Trust Claim or Indemnification Liability to be
redirected against the Trust, as contemplated by and in accordance with the
Plan and the Trust Agreement.
(b) The Company shall indemnify the Trust in respect of all
costs, expenses, losses and damages (including, except as limited by
Paragraph (c) below, fees and expenses of counsel and other litigation and
settlement costs) when and as incurred by the Trust in connection with any
obligations or liabilities of the Debtors not assumed by the Trust pursuant
to the Trust Agreement, any obligations or liabilities imposed upon the
Company by the terms of the Plan, or any challenge to the Plan. Except as
provided in Section 2.2 of the Tax Matters Agreement, from and after the
consummation of the closing under the Tax Matters Agreement, the Company
shall have no further obligation to indemnify the Trust in respect of any
Taxes, non-income taxes of the Designated Settlement Fund, costs, expenses,
losses and damages (including fees and expenses of counsel and other
litigation and settlement costs), regardless of when incurred, in
connection with any Taxes and non-income taxes of the Designated Settlement
Fund imposed upon the Trust at any time.
(c) Each party indemnified under the provisions of this
Section 2.01, upon receipt of written notice of any claim or the service of
summons or other initial legal process upon it in any action instituted
against it, in respect of which indemnity may be sought on account of any
indemnity agreement contained in this Section 2.01, shall promptly give
written notice of such claim, or the commencement of such action, or threat
thereof, to the party from whom indemnity shall be sought hereunder. Such
indemnifying party shall be entitled at its own expense to participate in
the defense of such claim or action, or, if it shall elect, to assume such
defense, in which event (i) such defense shall be conducted by counsel
chosen by such indemnifying party, which counsel shall be satisfactory to
the indemnified party against whom such claim is asserted or who is the
defendant in such action, and (ii) such indemnified party may retain
additional counsel provided that such indemnified party shall bear the fees
and expenses of any additional counsel retained by it. If the indemnifying
party shall elect not to assume the defense of such claim or action, such
indemnifying party will reimburse such indemnified party for the reasonable
fees and expenses of any counsel retained by it, and shall be bound by the
results obtained by the indemnified party; provided that no such claim or
action shall be settled without the written consent of the indemnifying
party.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.01 Representations and Warranties of the Company. The
Company represents and warrants to the Trust that:
(a) The Company and each of its Subsidiaries is a
corporation or partnership duly organized, validly existing and in good
standing under the laws of its respective jurisdiction of incorporation or
organization. The Company has all corporate power and authority to execute
and deliver this Agreement. The execution and delivery of this Agreement
has been duly and validly authorized by the Company, and no other
proceedings on the part of the Company are necessary to authorize the
execution and delivery of this Agreement.
(b) This Agreement has been duly executed and delivered by
the Company and constitutes a valid and legally binding obligation of the
Company enforceable against the Company in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditor rights and to general equity principles.
3.02 Representations and Warranties of the Trust. The Trust
represents and warrants to the Company that:
(a) The Trust has been duly organized and is validly
existing as a trust under the laws of the State of New York. The Trust has
all requisite power and authority to execute and deliver this Supplemental
Agreement. The execution and delivery of this Agreement has been duly and
validly authorized by the Trust, and no other proceedings on the part of
the Trust are necessary to authorize the execution and delivery of this
Agreement.
(b) This Agreement has been duly executed and delivered by
the Trust and constitutes a valid and legally binding obligation of the
Trust enforceable against the Trust in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors rights and to general equity principles.
ARTICLE IV
MISCELLANEOUS
4.01 Termination. This Agreement shall terminate and the
provisions hereof be of no further force and effect as of the Termination
Date; provided that this Agreement may be terminated at any time, and the
provisions hereof be thereupon of no further force and effect, if the
Company and the Trust so agree in writing.
4.02 Amendments; Waiver. This Agreement may be modified,
supplemented or amended, or the provisions hereof waived, at any time and
from time to time in writing signed by each party hereto.
4.03 Severability. Should any provision in this Agreement be
determined to be invalid or unenforceable in any jurisdiction, such
determination shall in no way limit or affect the validity or
enforceability and operative effect of any other provisions of this
Agreement or affect the validity or enforceability of any of the provisions
of this Agreement in any other jurisdiction.
4.04 Notices. Any notices or other communications required
or permitted in connection with this Agreement shall be in writing and
delivered at the addresses designated below, or sent by telex or telecopy
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 by one party to the other in compliance with the terms hereof.
If to the Trust, to:
Manville Personal Injury Settlement Trust
000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Chairman and Managing Trustee
with a copy to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxxxx, Esq.
If to the Company, to:
Xxxxx Xxxxxxxx Corporation
000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: Corporate Secretary
with copies to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxx, Esq.
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: L. Xxxxxx Xxxxxxx, Esq.
and
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxx, Esq.
All such notices and communications shall be effective when
delivered at the designated addresses or when the telex or telecopy
communication is received at the designated addresses and confirmed by the
recipient by return telex or telecopy in conformity with the provisions
hereof.
4.05 Counterparts. This 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.
4.06 Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, except that neither the
Trust nor the Company may assign or otherwise transfer any of its rights or
obligations under this Agreement.
4.07 Entire Agreement; No Waiver. The entire agreement of
the parties relating to the subject matter of this Agreement and the Tax
Matters Agreement is contained herein and therein, and this Agreement and
the Tax Matters Agreement supersede any other prior oral or written
agreements concerning the subject matter hereof and thereof. No failure or
delay to exercise any right, power or privilege hereunder or thereunder
shall operate as a waiver thereof, nor shall any single or partial exercise
of any right, power or privilege hereunder or thereunder preclude any
further exercise thereof or of any other right, power or privilege. The
rights and remedies herein and therein provided are cumulative and not
exclusive of rights under law or in equity.
4.08 Headings. The headings used in this Agreement are
inserted for convenience only and neither constitute a portion of this
Agreement nor in any manner affect the construction of the provisions of
this Agreement.
4.09 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
4.10 Third Parties. This Agreement constitutes an agreement
solely between the parties hereto, and is not intended to and shall not
confer any rights, remedies, obligations or liabilities, legal or
equitable, on any person other than the parties hereto and their respective
successors or assigns, or otherwise constitute any Person a third party
beneficiary under or by reason of this Agreement.
4.11 Survival of Covenants and Agreements. All
representations, warranties, covenants and agreements made in this
Agreement shall be deemed to have been relied upon by the party to whom
made, notwithstanding any investigations heretofore or hereafter made by
such party or on such party's behalf. Unless clearly worded otherwise, all
such representations, warranties, covenants and agreements shall continue
in full force and effect so long as this Agreement is in effect.
4.12 Confidentiality. The Company shall retain in strict
confidence all information previously supplied to it by the Trust pursuant
to this Agreement or any predecessor supplemental agreement, except to the
extent that (i) the Company is compelled to disclose such information as a
result of court order, subpoena or similar legal duress or, in the opinion
of counsel to the Company, is otherwise required to disclose such
information to any governmental department, agency, authority, commission
or other body, it being understood that the Company shall consult with the
Trust upon receiving such an order or subpoena or in connection with
obtaining such an opinion as part of its good faith determination as to
whether disclosure is required, (ii) any such information is or becomes
generally available to the public other than as a result of a disclosure by
the Company or its Subsidiaries or any of their employees, representatives
or agents or (iii) any such information is obtained or developed by the
employees, representatives or agents of the Company or any of its
Subsidiaries independently of, and without reference to or use of,
information previously supplied by the Trust to the Company.
4.13 [Reserved]
4.14 Effective Date. The amendment and restatement of the
Supplemental Agreement pursuant to this Agreement shall be effective as of
the date first above written, and from and after said date the Supplemental
Agreement shall continue in full force and effect as amended and restated
hereby.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective duly authorized officers as of
the day and year first above written.
XXXXX XXXXXXXX CORPORATION
By:_____________________________
Name:
Title:
MANVILLE PERSONAL INJURY
SETTLEMENT TRUST
By:_____________________________
Name:
Title:
EXHIBIT A
TO
THIRD AMENDED AND RESTATED SUPPLEMENTAL AGREEMENT
GLOSSARY OF DEFINED TERMS1
ADJUSTED CONSOLIDATED NET EARNINGS for any Fiscal Year means
Consolidated Net Earnings of the Company computed without giving effect to
any accretion of, or dividend payment on, the Series B Preference Stock and
before giving effect to any payments made pursuant to Section 2.03 of the
Supplemental Agreement, in each case whether or not in accordance with
generally accepted accounting principles.
AFFILIATE of a Person means (i) a Subsidiary of such Person, (ii)
a Person which owns, either alone or with or through one or more
Affiliates, directly or indirectly, securities or other ownership interests
having ordinary voting power to elect a majority of the board of directors
or other persons performing similar functions of such Person and (iii) a
Subsidiary of any Affiliate of such Person; provided that neither the Trust
nor the PD Trust shall be deemed an Affiliate of any of the Debtors.
AGGREGATE VALUE OF THE PD TRUST ESTATE as of any date, shall
be equal to the sum, on such date, of (i) all cash then held in the PD
Trust Estate, (ii) all Cash Settlement Proceeds payable to the PD Trust
with respect to all Settlement Agreements then in effect, (iii) the amount
specified in clause (iv)(y) of the definition of Aggregate Value of the
Trust Estate, (iv) the excess of (x) the aggregate value of the PD
Insurance Coverage equal to the maximum amount of Non-Cash Settlement
Proceeds available with respect thereto (less any portion thereof already
utilized) to pay Property Claims and PD Trust Expenses as determined by a
Settlement Agreement or by Final Order, or, if there is no Settlement
Agreement or Final Order with respect to such PD Insurance Coverage, to the
amount of Non-Cash Settlement Proceeds estimated by agreement of the PD
Trustees and the Chief Financial Officer of the Company to be collectible
from the insurer with respect to such PD Insurance Coverage to pay Property
Claims under such Policy in respect of Property Claims and PD Trust
Expenses, over (y) any amount, which would be payable to the Trust pursuant
to Section 2.06(e) of the PD Supplemental Agreement with respect to such PD
Insurance Coverage, as so valued, (v) the aggregate Market Value of any
securities then held by the PD Trustees and (vi) the fair market value, as
determined by the PD Trustees on any reasonable basis, of all other assets
then held by the PD Trust (which assets shall not be deemed to include the
Second Bond or amounts payable under the PD Supplemental Agreement). In
valuing Cash Settlement Proceeds and Non-Cash Settlement Proceeds under
Clauses (ii) and (iv) above, no value shall be assigned to any amount that
is or may be payable by an insurance company whose rating at the time of
valuation by Best's Insurance Reports is lower than "A" for any reason,
unless such payment is secured by an irrevocable letter of credit or
comparable security arrangement acceptable to the PD Trust.
--------
1 Unless the context requires otherwise, all capitalized terms used
within these definitions have the meanings assigned to them
elsewhere in this Glossary.
AGGREGATE VALUE OF THE TRUST ESTATE as of any date shall be equal
to the sum, on such date, of (i) all cash then held in the Trust Estate,
(ii) all Cash Settlement Proceeds payable to the Trust with respect to all
Settlement Agreements then in effect, (iii) the amount specified in clause
(iv)(y) of the definition of Aggregate Value of the PD Trust Estate, (iv)
the excess of (x) the aggregate value of Insurance Coverage equal to the
maximum amount of Non-Cash Settlement Proceeds available with respect
thereto (less any portion thereof already utilized) to pay Trust Claims and
Trust Expenses, as determined by a Settlement Agreement or by Final Order,
or if there is no Settlement Agreement or Final Order with respect to such
Insurance Coverage, to the amount of Non-Cash Settlement Proceeds estimated
by agreement of the Trustees and the Chief Financial Officer of the Company
to be collectible from the insurer with respect to such Insurance Coverage
to pay Trust Claims and Trust Expenses, over (y) any amount which would be
payable to the PD Trust pursuant to Section 2.06(d) of the PD Supplemental
Agreement with respect to such Insurance Coverage, as so valued, (v) the
aggregate Market Value of any securities then held by the Trust and (vi)
the fair market value, as determined by the Trustees on any reasonable
basis, of all other assets then held by the Trust (which assets shall not
be deemed to include the Second Bond or amounts payable under the
Supplemental Agreement). In valuing Cash Settlement Proceeds and Non-Cash
Settlement Proceeds under Clauses (ii) and (iv) above, no value shall be
assigned to any amount that is or may be payable by an insurance company
whose rating at time of valuation by Best's Insurance Reports is lower than
"A" for any reason, unless such payment is secured by an irrevocable letter
of credit or comparable security arrangement acceptable to the Trust. The
Aggregate Value of the Trust Estate shall include the value of any assets
held in escrow pursuant to Section 3.05 of the PD Supplemental Agreement.
AH CLAIMS means (a) all Claims (under any theory of law, equity or
admiralty) for death, personal injuries or personal damages (whether
physical, emotional or otherwise) to the extent caused or allegedly caused,
directly or indirectly, by exposure to asbestos (alone or as contained in
asbestos-containing products) and arising or allegedly arising, directly or
indirectly, from acts or omissions prior to the Confirmation Date of one or
more of the Debtors or the Canadian Companies including, without
limitation, all Claims for compensatory damages (such as loss of
consortium, wrongful death, survivorship, proximate, consequential, general
and special damages) and punitive damages and (b) all warranty, guarantee,
indemnification or contribution liabilities or obligations of any of the
Debtors or Canadian Companies to any other Person to the extent that such
warranties, guarantees, indemnifications or contribution responsibilities
cover claims against such other Person that would, if such claims had been
made directly against any of the Debtors or Canadian Companies, constitute
AH Claims under Clause (a) above.
With respect to Claims for compensatory damages only, the
substantive law applicable to the settlement or trial of AH Claims against
the Claims Resolution Facility shall be the law which would have been
applicable but for the pendency of the Cases. In determining the applicable
law, it will be assumed that the action against the Claims Resolution
Facility was (1) filed or commenced (if not actually filed or commenced
against any of the Debtors) at the same time as an action by the
Beneficiary asserting a claim that would have been an AH Claim if asserted
against any of the Debtors was filed against any other Person and (2) tried
or settled at the same time as the Beneficiary's action was tried or
settled (if actually tried or settled) with substantially all defendants
thereto, so that the law applicable will be the same as the law applicable
to the action against such other defendants. If the claim is against any of
the Debtors (or the Claims Resolution Facility) alone, it will be assumed
that the action against the Claims Resolution Facility was filed or
commenced (if not actually filed or commenced against any of the Debtors)
at the earliest time when the cause of action accrued and would have been
reached for trial when a similar action in the same venue on the same
calendar would have been reached for trial. All claims actually filed or
commenced against any of the Debtors shall be deemed to have been filed or
commenced on such actual date of filing or commencement. Notwithstanding
and supplementing the foregoing, the Beneficiary shall have the benefit of
any revival statute enacted in any jurisdiction where venue is proper which
has the effect of removing or tolling the bar or extending the period of
the statute of limitations, irrespective of whether the statute is deemed
substantive or procedural.
ALLOWED means:
(a) With respect to a Claim or that portion of a Claim that is
liquidated as to amount on the Consummation Date, a Claim or such a portion
of a Claim (1) that has been timely filed with the Clerk of the Court or
such other party as the Court may direct (or may have directed) and which
has not been objected to or which is listed by the Debtors as not
contingent, unliquidated or disputed in the Schedules, in each case within
such time as may be prescribed by the Bankruptcy Rules promulgated by the
Supreme Court of the United States which became effective on August 1,
1983, as heretofore or hereafter amended, or by a Final Order of the Court
or (2) that has been allowed by a Final Order of the Court;
(b) With respect to a Claim or that portion of a Claim (other than
a Claim for contribution or indemnity which constitutes an AH Claim or
Property Claim) that is disputed, unliquidated as to amount or contingent
on the Consummation Date, a Claim or such portion of a Claim (1) that has
been timely filed with the Clerk of the Court or such other party as the
Court may direct (or may have directed) pursuant to a Final Order of the
Court and (2)(a) has been liquidated and fixed as to amount in accordance
with the terms of the Trust Agreement or the PD Trust Agreement, as the
case may be, or (b) with respect to Claims or portions of Claims other than
AH Claims and Property Claims, has been allowed by a Final Order of the
Court; or
(c) With respect to a Claim for contribution or indemnity which
constitutes an AH Claim or Property Claim and that is disputed,
unliquidated as to amount or contingent on the Consummation Date, a Claim
which has been allowed and the amount of which has been determined (1) if a
Contribution Claim or an Indemnity Claim, in accordance with the
Co-Defendants Procedures, (2) if a Property Claim, in accordance with the
terms of the PD Trust Agreement and (3) otherwise, by a Final Order of the
Court or by a binding settlement agreement.
AMENDED AND RESTATED PD SUPPLEMENTAL AGREEMENT means the agreement
dated as of November 15, 1990, among the Company, the Trust and the PD
Trust, as the same may be amended from time to time in accordance with
Section 6.02 thereof.
ANNUAL BOND CONTINGENT AMOUNT with respect to any Fiscal
Year commencing with Fiscal Year 2000 means (a) the aggregate dollar amount
of Trust Claims which became Liquidated during such Fiscal Year (whether or
not actually paid during such Fiscal Year) and all Trust Expenses other
than Insurance Indemnification Expenses paid by the Trust during such
Fiscal Year plus (b) the Bond Carryforward, if any, from the Prior Fiscal
Year.
ANNUAL CONTINGENT AMOUNT means, for each Fiscal Year commencing
with Fiscal Year 1991 (i) the aggregate amount of Trust Claims which became
Liquidated during such Fiscal Year (whether or not actually paid during
such Fiscal Year) and all Trust Expenses, other than Insurance
Indemnification Expenses, paid by the Trust during such Fiscal Year plus
(ii) the Carryforward, if any, from the prior Fiscal Year minus (iii) (x)
the amount, if any, required to be paid in such Fiscal Year under the
Second Bond and (y) with respect to Fiscal Year 1991 through Fiscal Year
2014 the Aggregate Value of the Trust Estate as of the end of such Fiscal
Year, divided by the number of Fiscal Years, if any, remaining from the
beginning of such Fiscal Year until the end of Fiscal Year 2014 (e.g., 24
with respect to Fiscal Year 1991; one with respect to the Fiscal Year
2014).
ANNUAL XX XXXX CONTINGENT AMOUNT with respect to any Fiscal Year
commencing with the later of 2000 or the Fiscal Year immediately prior to
the First PD Fiscal Year means (a) the aggregate dollar amount of Property
Claims which became Liquidated during such Fiscal Year (whether or not
actually paid during such Fiscal Year) and all PD Trust Expenses paid by
the PD Trust during such Fiscal Year plus (b) the XX Xxxx Carryforward, if
any, from the prior Fiscal Year.
ANNUAL PD CONTINGENT AMOUNT means, for each Fiscal Year commencing
with Fiscal Year 1991, (i) the aggregate amount of Property Claims which
became Liquidated during such Fiscal Year (whether or not actually paid
during such Fiscal Year) and all PD Trust Expenses paid by the PD Trust
during such Fiscal Year (less the amount of any payments to the PD Trust
pursuant to Section 2.07 of the PD Supplemental Agreement) plus (ii) the PD
Carryforward, if any, from the prior Fiscal Year minus (iii) (x) the
amount, if any, required to be paid to the PD Trust in such Fiscal Year
under the Second Bond and (y) with respect to Fiscal Year 1991 through
Fiscal Year 2014, the Aggregate Value of the PD Trust Estate as of the end
of such Fiscal Year, divided by the number of Fiscal Years, if any,
remaining from the beginning of such Fiscal Year until the end of Fiscal
Year 2014 (e.g., 24 with respect to Fiscal Year 1991; one with respect to
the Fiscal Year 2014).
ASBESTOS COMMITTEE means the "Official Committee of
Asbestos-Health Related Litigants and/or Creditors" appointed in the Cases
by the Acting United States Trustee for the Southern District of New York
pursuant to an Order of the Court dated October 8, 1982, as amended.
BASIC PD TRUST FUND has the meaning assigned to it in Section 4.01
of the FD Trust Agreement.
BASIC TRUST FUND has the meaning assigned to it in Section 4.01 of
the Trust Agreement.
BENEFICIARY means any Person holding a Trust Claim.
BOND CARRYFORWARD from any Fiscal Year commencing with Fiscal Year
2000 means the excess, if any, of the Annual Bond Contingent Amount for
such Fiscal Year (including the component thereof representing the Bond
Carryforward from the prior Fiscal Year) over the aggregate amount actually
paid by the Company in such Fiscal Year pursuant to Subsection 2.03(a) of
the Supplemental Agreement as in effect prior to April 5, 1996, and the
Second Bond, as the case may be.
BONDS REPURCHASE AGREEMENT means the Bonds Repurchase Agreement
dated September 22, 1994 between the Company and the Trust, as amended from
time to time in accordance with the terms thereof.
BUSINESS DAY means any day except a Saturday, Sunday or other day
on which commercial banks in New York, New York are authorized or required
by law to close.
BYLAWS means the Bylaws of the Trust, substantially in the form of
Annex A to the Trust Agreement, as they may be amended from time to time.
CANADIAN COMPANIES means Xxxxx-Xxxxxxxx Canada, Inc. and Xxxxx-
Xxxxxxxx Amiante Canada, Inc.
CARRYFORWARD from any Fiscal Year commencing with Fiscal Year 1991
means the excess, if any, of the Annual Contingent Amount for such Fiscal
Year (including the component thereof representing the Carryforward from
the prior Fiscal Year) over the amount actually paid by the Company with
respect to such Fiscal Year pursuant to Subsection 2.03(a) of the
Supplemental Agreement as in effect prior to April 5, 1996.
CASES means the reorganization cases under Chapter 11 of the
Code of the Debtors, collectively, jointly administered pursuant to order
of the Court dated August 26, 1982 and presently captioned "In re
Xxxxx-Xxxxxxxx Corporation, ET AL., Debtors" (Case Nos. 82 B 11656 through
82 B 11658, inclusive, 82 B 11660 through 82 B 11662, inclusive, and 82 B
11665 through 11676, inclusive).
CASH SETTLEMENT PROCEEDS means any and all amounts payable by the
Settling Insurance Company under any Settlement Agreement, other than
amounts payable pursuant to coverage in place provisions contained in such
Settlement Agreement, i.e., on the claims as made or expenses as incurred
basis, and includes cash, cash proceeds pursuant to a letter of credit or
other security device or other cash equivalent.
CHARTER means the Company's Restated Certificate of Incorporation
as the same may be amended from time to time in accordance with the
provisions thereof and the General Corporation Law of the State of
Delaware.
CLAIM means a claim against one or more of the Debtors within the
meaning of Section 101(4) of the Code that arose prior to the Confirmation
Date, excluding current commercial payables incurred in the ordinary course
of business existing on the Confirmation Date.
CLAIMS RESOLUTION FACILITY means the Claims Resolution Facility
set forth in Annex B to the Trust Agreement.
CLASS ACTION LAWSUIT means an action to be commenced in United
States District Court, on behalf of all present and future beneficiaries of
the Trust, against each of the Trustees of the Trust, in their capacity as
Trustees, seeking an equitable distribution of the assets of the Trust
among all the beneficiaries of the Trust and seeking entry of an order
determining that the present and anticipated liabilities of the Trust to
its beneficiaries exceed the present and expected future assets of the
Trust, and declaring the beneficiaries' rights and priorities with respect
to those assets, and in which certification as a class action on behalf of
all beneficiaries of the Trust (who shall be deemed members of the class
with no right to opt out of the class) will be sought pursuant to Rule
23(b)(1)(B) of the Federal Rules of Civil Procedure and in respect of
which, the Limited Fund Proceeding, the Trust is seeking a determination,
inter alia, as to whether the Trust constitutes a limited fund for purposes
of Rule 23(b)(1)(B) of the Federal Rules of Civil Procedure.
CLASS 6 INDENTURE means the indenture dated as of the
Consummation Date between the Company and the trustee thereunder,
substantially in the form of Exhibit E to the Plan (subject to reasonable
modifications requested by the trustee thereunder that do not adversely
affect any other party thereto, the holders of the Class 6 Notes, the Trust
or the PD Trust), as it may be modified or amended from time to time.
CLASS 6 INTEREST DEBENTURES means the debentures evidencing
indebtedness of the Debtors to the holders of Class 6 Claims issued from
time to time on or after the Consummation Date in accordance with the
Provisions of Subparagraph 3.6.B of the Plan, which are more fully
described in the Class 6 Interest Indenture.
CLASS 6 INTEREST INDENTURE means the indenture dated as of the
Consummation Date between the Company and the trustee thereunder,
substantially in the form of Exhibit G to the Plan (subject to reasonable
modifications requested by the trustee thereunder that do not adversely
affect any other party thereto, the holders of the Class 6 Interest
Debentures, the Trust or the PD Trust), as it may be modified or amended
from time to time.
CLASS 6 NOTES means the notes evidencing indebtedness of the
Debtors to the holders of Class 6 Claims issued from time to time on or
after the Consummation Date in accordance with the provisions of Paragraph
3.6.B of the Plan, which are more fully described in the Class 6 Indenture.
CODE means the Bankruptcy Code, 11 U.S.C. Sections 101 et seq., as
in effect on the Filing Date, as it has been or may be amended from time to
time to the extent such amendments are applicable to the Cases.
CO-DEFENDANT means the holder of an Indemnity Claim or a
Contribution Claim.
CO-DEFENDANTS' COMMITTEE means the "Official Committee of Asbestos
Litigation Co-Defendants" appointed in the Cases by the Acting United
States Trustee for the Southern District of New York pursuant to an order
of the Court dated March 19, 1984, as amended.
CO-DEFENDANTS' PROCEDURES means the procedures set forth in Annex
F to the Trust Agreement, as the same may be amended from time to time.
COMMISSION means the Securities and Exchange Commission.
COMPANY means Xxxxx Xxxxxxxx Corporation, a Delaware corporation.
COMPANY COMMON STOCK means the Common Stock, $.01 par value per
share, of the Company issued under the Charter and outstanding from time to
time on or after the Consummation Date.
COMPARABLE INDUSTRIES INDEX for any Fiscal Year means the sum,
determined as of April 15 of the following Fiscal Year, of (a) the average
Return on Equity for the most recently completed fiscal year for which
audited financial statements are publicly available of the five largest
companies (based on net sales) included in Standard & Poor's Index of
Building Materials Companies multiplied by a fraction, the numerator of
which is the net sales of the Company and its Subsidiaries or such Fiscal
Year attributable to its building materials businesses and the denominator
of which is the aggregate net sales of the Company and its Subsidiaries for
such Fiscal Year attributable to its building materials businesses and its
forest products businesses and (b) the average Return on Equity for the
most recently completed fiscal year for which audited financial statements
are publicly available of the five largest companies (based on net sales)
included in Standard & Poor's Index of Forest Products Companies multiplied
by a fraction the numerator of which is the net sales of the Company for
such Fiscal Year attributable to its forest products businesses and the
denominator of which is the aggregate net sales of the Company and its
Subsidiaries for such Fiscal Year attributable to its forest products
businesses and its building materials businesses.
CONFIRMATION DATE means the date on which the Confirmation Order
becomes a Final Order, unless, under mandatory provisions of law and as
determined by a Final Order of the Court, the Confirmation Date is required
to be the date of issuance of the Confirmation Order, in which case
CONFIRMATION DATE means such date of issuance.
CONFIRMATION ORDER means the order or orders of the Court
confirming the Plan.
CONSOLIDATED NET EARNINGS for any Fiscal Year means the Company's
consolidated net earnings (on an after tax basis) for such Fiscal Year as
shown on the audited consolidated statement of operations of the Company
included in the Form 10-K with respect to such Fiscal Year filed by the
Company with the Commission (or, if the Company is not required to file a
Form 10-K with respect to such Fiscal Year with the Commission, then as
shown on the consolidated statement of operations of the Company for such
Fiscal Year prepared in accordance with generally accepted accounting
principles and examined in accordance with generally accepted auditing
standards by the Company's independent auditors, which auditors shall be
approved by the Trust and the PD Trust (whose approval shall not be
unreasonably withheld), so long as each of them is in existence).
CONSOLIDATED NET WORTH of the Company, as of any date, means the
total stockholders' equity of the Company as of such date determined on a
consolidated basis in accordance with generally accepted accounting
principles, less any items of the following types that are included in the
assets of the Company and its consolidated Subsidiaries: (a) goodwill, (b)
unamortized organization or reorganization expense, (c) unamortized debt
discount and expense, (d) patents, trademarks, trade names, copyrights,
franchises and similar rights, and (e) increases in the book value of any
assets of the Company and its consolidated Subsidiaries above the book
value thereof as of the Consummation Date as a result of any revaluation of
such assets (other than any such increases resulting from regular periodic
revaluations required under generally accepted accounting principles).
CONSUMMATION DATE means November 28, 1988.
CONSUMMATION DATE VALUE means:
(a) with respect to the Cash Settlement Proceeds payable
under the Travelers Agreement, the stated amount thereof exclusive of any
interest or other income payable thereon;
(b) with respect to any other Cash Settlement Proceeds
payable, and Non-Cash Settlement Proceeds received other than pursuant to a
Settlement Agreement, on or before the date six months after the
Consummation Date, the stated amount thereof inclusive of any interest or
other income payable thereon under the terms of the applicable Settlement
Agreement up to the Consummation Date;
(c) with respect to any Cash Settlement Proceeds payable,
and Non-Cash Settlement Proceeds received other than pursuant to a
Settlement Agreement, more than six months following the Consummation Date,
the present value calculated by discounting the stated amount thereof from
the scheduled payment date (or date of receipt in the case of such Non-Cash
Settlement Proceeds) to the date six months after the Consummation Date
using an interest rate of 8.2% per annum; and
(d) with respect to any amount payable pursuant to
coverage in place provisions contained in a Settlement Agreement, the
present value calculated by discounting the stated amount thereof from the
date 18 months after the Consummation Date to the Consummation Date using
an interest rate of 8.2% per annum;
provided, however, that no Consummation Date Value shall be assigned to any
Cash Settlement Proceeds or amount payable pursuant to coverage in place
provisions which is payable by a Settling Insurance Company whose rating by
Best's Insurance Reports shall be lower than "A" for any reason, unless
such payment is secured by an irrevocable letter of credit or comparable
security arrangement acceptable to the trust and the PD Trust, provided
further that, notwithstanding the foregoing, the Consummation Date Value
ascribed to the Midland Coverage at any date shall be equal to the amount,
if any, of Insurance Proceeds and/or PD Insurance Proceeds paid under the
Midland Coverage on or before such date discounted in the same manner as
provided in (c) if paid more than six months following the Consummation
Date, unless the Company, the Asbestos Committee, certain representatives
of the PD Beneficiaries and the Legal Representative agree on another
Consummation Date Value to be ascribed thereto solely for the purpose of
meeting the condition set forth in Paragraph 9.2.D of the Plan and provided
further that if the condition set forth in Paragraph 9.2.D of the Plan will
not otherwise be met, the Company may elect to pay an amount in cash equal
to the shortfall to the Trust on the Consummation Date, the amount of'
which payment will be deemed to be Consummation Date Value for the purpose
of meeting such condition.
CONTRIBUTION CLAIM means an AH Claim or Other Asbestos Obligation
for contribution, as that term is defined by the non-bankruptcy law of the
relevant jurisdiction, that is (i) held by (A) any Person (other than a
past or present officer, director or employee of any of the Debtors) who
has been, is or may be a defendant in an action seeking damages for
asbestos-related personal injury, or (B) any assignee or transferee of such
Person and (ii) is asserted against any of the Debtors or the Trust for
reimbursement of a portion of any damages such Person has paid or may pay
to the plaintiff in such action.
COURT means the United States Bankruptcy Court for the Southern
District of New York (or such other court as may be administering the
Cases) and, with respect to any particular proceeding within a Case, any
other court which may be exercising jurisdiction over such proceeding.
DEBT means (a) all indebtedness for the repayment of money
borrowed, whether or not represented by bonds, debentures, notes or other
securities, (b) all other indebtedness represented by bonds, debentures,
notes or other securities (including the Xxxxxxxx Notes transferred to the
Trust in payment of certain bond obligations (whether or not still held by
the Trust) and the Second Bond), (c) all deferred indebtedness for the
payment of the purchase price of property or assets purchased, (d) all
Guarantees, endorsements, assumptions and other contingent obligations in
respect of, or to purchase or otherwise to acquire, indebtedness of another
Person (other than Guarantees of the Company's or any of its Subsidiaries'
indebtedness to a third party), (e) all indebtedness secured by an
encumbrance existing on property owned by the Person whose indebtedness is
being determined, whether or not the indebtedness secured thereby shall
have been assumed by such Person and (f) all obligations under capital
leases required to be recorded on the Company's consolidated financial
statements in accordance with generally accepted accounting principles.
DEBTORS means the following corporations, each of which filed a
petition for reorganization under Chapter 11 of the Code with the Court on
the Filing Date and includes such corporations as reorganized after
Consummation as well as prior thereto:
Xxxxx-Xxxxxxxx Corporation
Manville Corporation
Manville International Corporation
Manville Export Corporation
Xxxxx-Xxxxxxxx International Corporation
Manville Sales Corporation (f/k/a Xxxxx-Xxxxxxxx Sales
Corporation, successor by merger to Manville
Building Materials Corporation, Manville Products
Corporation and Manville Service Corporation)
Manville International Canada, Inc.
Manville Canada, Inc.
Manville Investment Corporation
Manville Properties Corporation
Xxxxx-Xxxxx Corporation
Xxx-Xxxxx Ranch Corporation
Xxxxx-Xxxxxxxx Idaho, Inc.
Manville Canada Service, Inc.
Sunbelt Contractors Inc.
DEFAULT, as used with respect to the Second Bond, means the
occurrence and continuance of an Event of Default or an event that, after
notice or lapse of time or both, would become an Event of Default.
DEFERRED AMOUNT, during 2014, shall mean the excess, if any, of
$75,000,000 over the aggregate amount paid to the Trust and the PD Trust
during 2013 pursuant to Section 2.1 of the Second Bond.
DESIGNATED DEBT means the Second Bond.
DESIGNATED SETTLEMENT FUND means the non-grantor trust portion of
the settlement fund established for claimants against the Company which
filed a petition for reorganization under Chapter 11 of Title 11, United
States Code on August 26, 1982, pursuant to Section 1807(a)(7)(C)(i) of the
Tax Reform Act of 1986.
DISPUTED CLASS 6 CLAIM means a Class 6 Claim or any portion
thereof which, as of the Consummation Date or any date subsequent thereto,
is not Allowed.
DISTRIBUTION RECORD DATE means the tenth Business Day preceding
the Consummation Date.
ENCUMBRANCE means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of
such asset.
EQUITY COMMITTEE means the "Official Committee of Equity Security
Holders" appointed in the Cases by the Acting United States Trustee for the
Southern District of New York pursuant to an order of the Court dated
February 14, 1983, as amended, which was disbanded pursuant to an order of
the Court dated July 31, 1986.
EQUITY SUBSIDIARY means any Subsidiary of the Company or any other
entity for which the Company is entitled to account under principles of
equity accounting and with respect to which the Company has previously
delivered to the Trust and the PD Trust a certificate of the Company's
chief financial officer stating that the Company is entitled to use such
accounting treatment.
EVENT OF DEFAULT, as used with respect to the Second Bond, has the
meaning assigned to it in Section 3.1 of the Second Bond.
EXCHANGE ACT means the Securities Exchange Act of 1934, as
amended.
FILING DATE means August 26, 1982, the date on which each of the
Debtors filed a petition under Chapter 11 of the Code.
FINAL ORDER means (a) a judgment, order or other decree issued and
entered by the Court or by any state or other federal court or other
tribunal located in one of the states, territories or possessions of the
United States or the District of Columbia, which judgment, order or decree
(x) has not been reversed or stayed and as to which the time to appeal has
expired and as to which no appeal or petition for review, rehearing or
certiorari is pending or (y) with respect to which any appeal has been
finally decided and no further appeal or petition for certiorari can be
taken or granted; or (b) stipulation or other agreement entered into which
has the effect of any such judgment, order or other decree.
FIRST AMENDED AND RESTATED SUPPLEMENTAL AGREEMENT means the
Manville Personal Injury Settlement Trust Amended and Restated Supplemental
Agreement dated as of November 15, 1990 between the Trust and the Company.
FIRST AMENDMENT TO THE TRUST AGREEMENT means the amendment to the
Trust Agreement dated as of February 14, 1989, between the Company, as
successor to the Trustors, and the Trustees.
FISCAL YEAR means the fiscal year of the Trust or the PD Trust or
the Company, as the case may be, which shall in each case be the calendar
year.
GOVERNMENT PROCEEDS for any Fiscal Year means the net
proceeds, if any, received in such Fiscal Year by the Company or any of its
Subsidiaries (or that the Company or any such Subsidiary would have
received but for any assignment or other transfer of the proceeds thereof
to another Person or any set-off by the United States in respect of claims
by the United States against the Company or any such Subsidiary) with
respect to claims made by the Company or any of its Subsidiaries against
the United States relating to claims against, or debts, obligations or
liabilities of, any of the Debtors (a) for death, personal injuries or
personal damages caused or allegedly caused, directly or indirectly, by
exposure to asbestos (alone or as contained in asbestos-containing
products) and arising or allegedly arising, directly or indirectly, from
acts or omissions prior to the Confirmation Date of one or more of the
Debtors or (b) for other damages arising or allegedly arising from the
presence in buildings or other structures of asbestos (alone or as
contained in asbestos-containing products), which was sold, supplied or
produced, or allegedly sold, supplied or produced, by one or more of the
Debtors prior to the Confirmation Date, or for which one or more of the
Debtors is otherwise liable or allegedly liable due to the acts or
omissions of one or more of the Debtors prior to the Confirmation Date.
GOVERNMENTAL UNIT means any government or political subdivision or
any agency or instrumentality thereof.
GUARANTEE means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Debt of any other Person or
in any manner providing for the payment of any Debt of any other Person or
otherwise protecting the holder of such Debt against loss (by virtue of
partnership arrangements, by agreement to keep-well, to purchase assets,
goods, securities or services, or to take or pay otherwise), provided that
the term Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business. The word Guarantee when used as a verb
shall have a correlative meaning.
INDEMNIFICATION LIABILITIES means (a) all liabilities of the "JM
Responsible Entity" to the "Settling Insurer" as defined in and pursuant to
the Travelers Agreement and (b) the obligation to indemnify any person who
is or was a party to any pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (including,
without limitation, any action, suit or proceeding by or in the right of
the Trust, any of the Debtors, any of the Debtors' Subsidiaries or any of
the Canadian Companies) by reason of the fact that he is or was a director,
officer, employee or agent of any of the Debtors, any of the Debtors'
Subsidiaries or any of the Canadian Companies against all expenses
(including attorneys' fees and expenses), judgment, fines and amounts paid
with the Trust's consent to the fullest extent and in the manner that a
corporation organized under Delaware law is from time to time permitted to
indemnify its directors, officers, employees and agents if the Claim
against such person in such action, suit or proceeding would, if such Claim
had been made and timely filed against the Debtors or the Canadian
Companies, have constituted an AH Claim or an Other Asbestos Obligation
under clause (a) of the definition of either of such terms.
INDEMNITY CLAIM means an AH Claim or Other Asbestos
Obligation, whether based in contract or tort, that is (i) held by (A) any
Person (other than a past or present officer, director or employee of any
of the Debtors) who has been, is or may be a defendant in an action seeking
damages for asbestos-related personal injury, or (B) any assignee or
transferee of such Person and (ii) is asserted against any of the Debtors
or the Trust for indemnification of all damages and costs such Person has
or may suffer as a result of such action. INDEMNITY CLAIM shall not include
any Claim for Transferee Indemnification Liability.
INDEPENDENT means, when used with respect to any specified Person,
a Person who (a) is in fact independent, (b) does not have any direct
financial interest or any material indirect financial interest in the
Trust, the PD Trust, the Company or any Affiliate of the Company, and (c)
is not connected with the Company, any Affiliate of the Company, the Trust
or the PD Trust as an officer, employee, promoter, underwriter or person
performing similar functions.
INDUSTRY-WIDE CLAIMS HANDLING FACILITY means an industry-wide
arrangement among subscribing insurers and subscribing past or current
producers and manufacturers of asbestos or asbestos-containing products
established for the purposes of resolving and discontinuing disputes
concerning insurance coverage for asbestos-related personal injury claims
and establishing a method for the liquidation and resolution of
asbestos-related personal injury claims and the insurance arrangements
pertaining thereto. By way of example an arrangement implementing the
"Agreement Concerning Asbestos-Related Claims" dated May, 1985 known as the
"Wellington Agreement" would constitute an Industry-Wide Claims Handling
Facility.
INSURANCE CARRYFORWARD from any Fiscal Year means the difference
between the Insurance Indemnification Amount for such Fiscal Year
(including the component thereof representing the Insurance Carryforward
from the prior Fiscal Year) and the amount actually paid by the Company
with respect to such Fiscal Year pursuant to Subsection 2.03(b) of the
Supplemental Agreement.
INSURANCE COVERAGE means the insurance coverage, not reduced to
Cash Settlement Proceeds, available in respect of Trust Claims and/or Trust
Expenses (i) pursuant to any Settlement Agreement or (ii) under any Policy.
INSURANCE INDEMNIFICATION AMOUNT means for any Fiscal Year, (i)
the aggregate amount of all Insurance Indemnification Expenses paid by the
Trust during such Fiscal Year plus (ii) the Insurance Carryforward from the
prior Fiscal Year.
INSURANCE INDEMNIFICATION EXPENSES means those amounts paid by the
Trust in respect of liabilities of the "JM Responsible Entity" to the
"Settling Insurer" as defined in and pursuant to the Travelers Agreement.
INSURANCE PROCEEDS means (i) all Cash Settlement Proceeds paid or
payable to the Trust Pursuant to Settlement Agreements and (ii) all
Non-Cash Settlement Proceeds of Insurance Coverage. Insurance Proceeds
shall be deemed received by the Trust when actually received by the Trust
or when paid to another Person in respect of a Liquidated Trust Claim or
Trust Expense.
INTEREST means the rights of the owners and holders of issued and
outstanding shares of Old Preferred Stock or Old Common Stock.
INTERNAL REVENUE CODE means the Internal Revenue Code of 1986, as
it may be amended from time to time, and the regulations promulgated from
time to time thereunder.
LEGAL REPRESENTATIVE means the "Legal Representative for Future
Asbestos Health Claimants" or his successor appointed pursuant to an order
of the Court dated August 14, 1984, and includes the Legal Representative
appointed in In re Joint Eastern and Southern District Asbestos Litigation,
C.A. No. 90-3973, United States District Court for the Eastern District of
New York.
LIMITED FUND PROCEEDING means the proceeding commenced by
the Trust captioned In re Joint Eastern and Southern District Asbestos
Litigation, Index No. 4000 (E.D.N.Y. and S.D.N.Y.), and In re
Xxxxx-Xxxxxxxx Corporation, et al., Case Nos. 82B-11656 through 82B-11676
(BRL) (Bankr. S.D.N.Y.), seeking a determination, inter alia, as to whether
the Trust constitutes a limited fund for purposes of Rule 23(b)(1)(B) of
the Federal Rules of Civil Procedure.
LIQUIDATED AH CLAIMS means those AH Claims which, prior to the
Filing Date, were settled as to validity and amount (a) by one or more of
the Trustors in writing (by stipulation, settlement agreement or otherwise)
or (b) by the order of any court having jurisdiction with respect thereto
to the extent such order was a Final Order on the Filing Date or became a
Final Order at any time following the Filing Date, whether or not prior to
the Consummation Date (to the extent any such order is subsequently
reversed by any appellate court or is vacated by the court issuing it, the
related AH Claim shall not be a Liquidated AH Claim).
LIQUIDATION occurs (i) with respect to any Property Claim or
Trust Claim which, as of the Consummation Date, the validity and amount
thereof have been acknowledged by one or more of the Trustors in writing
(by stipulation or settlement agreement approved by Final Order of the
Court or by inclusion thereof on schedules filed with the Court pursuant to
Bankruptcy Rule 1007 (b)), on the date of such acknowledgment, (ii) with
respect to any other Property Claim or Trust Claim (other than as set forth
in (iii) or (iv)), on the date on which the validity and amount thereof is
finally determined pursuant to the PD Claims Resolution Facility or the
Claims Resolution Facility, respectively, (iii) with respect to a Claim for
contribution which constitutes an AH Claim (other than as set forth in (i)
or (iv) ), on the date on which the amount of such Claim has been
determined by a Final Order of the Court, (iv) with respect to a
Contribution Claim or an Indemnity Claim, on the date on which the
liability of the Co-Defendant to the plaintiff on the underlying
asbestos-related personal injury claim from which such Claim arises is
finally determined and (v) with respect to a Claim for contribution which
constitutes a Property Claim (other than as set forth in (i)), on the date
on which the amount of such Claim has been determined pursuant to the PD
Trust Agreement. For purposes of this definition, a Co- Defendant's
liability to a plaintiff in an underlying asbestos-related personal injury
action is finally determined on the date payment is made by the
Co-Defendant pursuant to (a) an order of judgment of a court of competent
jurisdiction fixing the amount of damages to be paid by such Co-Defendant
to such plaintiff or (b) an acknowledgment in writing (whether by
stipulation, settlement agreement or otherwise) by such Co-Defendant and
such plaintiff of the amount of damages to be paid by such Co-Defendant to
such plaintiff in settlement of such action. The words Liquidate and
Liquidated shall have correlative meanings, except when used in the term
Liquidated AH Claims.
MARKET VALUE of any security on any date means the average of the
daily closing prices for the 20 consecutive Business Days ending on the
Business Day before the date in question. The closing price for each day
shall be the last reported sales price on the composite tape or, in case no
such reported sale takes place on such day, the average of the reported
closing bid and asked prices, in either case on the principal national
securities exchange on which such security is listed or admitted to trading
or, if such security is not then listed or admitted to trading on any
national securities exchange, the average of the closing bid and asked
prices on the National Association of Securities Dealers Automated
Quotation System or, if such security is not then so quoted, the market
value of such security as determined by a nationally recognized investment
banking firm selected by the Trust or the PD Trust, as the case may be, and
reasonably acceptable to the Company.
MIDLAND COVERAGE means the Insurance Coverage and/or PD Insurance
Coverage to be provided by Midland Insurance Company under the terms of the
Settlement Agreement dated January 29, 1985 with Insurance Company of North
America, Midland Insurance Company, and Allstate Insurance Company.
MODIFICATION has the meaning assigned to it in Section 6.03 of the
PD Trust Agreement.
NON-CASH SETTLEMENT PROCEEDS means any amounts payable under any
Settlement Agreement pursuant to coverage in place provisions contained in
such Settlement Agreement with respect to Trust Claims, Trust Expenses,
Property Claims or PD Trust Expenses, i.e., on a claims as made or expenses
incurred basis, and any other proceeds of Insurance Coverage or PD
Insurance Coverage, as the case may be, payable other than pursuant to a
Settlement Agreement (e.g., pursuant to the Policy itself or pursuant to a
court order or decree in respect of the Policy).
OFFICIAL COMMITTEES means the Asbestos Committee, the Unsecured
Creditors' Committee and the Co-Defendants Committee, collectively.
OTHER AGREEMENTS means the Supplemental Agreement, the Bonds
Repurchase Agreement and the Trust Agreement.
OTHER ASBESTOS OBLIGATIONS means (a) all debts, obligations or
liabilities (under any theory of law, equity or admiralty), other than AH
Claims, for death, personal injuries or personal damages (whether physical,
emotional or otherwise) to the extent caused or allegedly caused, directly
or indirectly, by exposure to asbestos (alone or as contained in
asbestos-containing products) and arising or allegedly arising, directly or
indirectly, from acts or omissions prior to the Confirmation Date of one or
more of the Debtors including, without limitation, all obligations or
liabilities for compensatory damages (such as loss of consortium, wrongful
death, survivorship, proximate, consequential, general and special damages)
and punitive damages and (b) all warranty, guarantee, indemnification or
contribution liabilities or obligations, if any, of any of the Debtors to
any other Person to the extent that such warranties, guarantees,
indemnifications or contribution responsibilities cover claims against such
other Person that would, if such claims had been made directly against any
of the Debtors, constitute Other Asbestos Obligations under Clause (a)
above.
OUTSTANDING AMOUNT of any Debt at any time means the
principal amount outstanding of such Debt at such time, unless such Debt
was issued at a discount, in which case the Outstanding Amount of such Debt
means the original issue price of such Debt plus the accretion to such time
of the original issue discount and less all payments of principal on the
Debt to such time, or unless such Debt is represented by any debt
instrument issued at a discount under the Plan, the Supplemental Agreement
or the PD Supplemental Agreement in which case the Outstanding Amount of
such Debt means the carrying amount of the Debt at issuance (the difference
between the principal amount and the original issue discount reflected on
the audited financial statements of the Company) plus the accretion to such
time of the original issue discount and less all payments of principal on
the Debt to such time.
PAYMENT DATE means August 31 and November 30 in each year.
PD BENEFICIARY means any Person holding a Property Claim.
XX XXXX CARRYFORWARD from any Fiscal Year commencing with 2000
means the excess, if any, of the Annual XX Xxxx Contingent Amount for such
Fiscal Year (including the component thereof representing the XX Xxxx
Carryforward from the prior Fiscal Year) over the aggregate amount actually
paid by the Company with respect to such Fiscal Year pursuant to Sections
2.02 and 2.07 of the PD Supplemental Agreement or Section 2 of the Second
Bond.
PD BYLAWS means the Bylaws of the PD Trust, substantially in the
form of Annex A to the PD Trust Agreement, as the same may be amended from
time to time.
PD CARRYFORWARD from any Fiscal Year commencing with Fiscal Year
1991 means the excess, if any, of the Annual PD Contingent Amount for such
Fiscal Year (including the component thereof representing the PD
Carryforward from the prior Fiscal Year) over the amount actually paid by
the Company with respect to such Fiscal Year pursuant to Section 2.02 of
the PD Supplemental Agreement.
PD CLAIMS RESOLUTION FACILITY means the PD Claims Resolution
Facility set forth in Annex B to the PD Trust Agreement; it being
understood that the PD Trustees, by a majority vote after consultation with
the Company, representative counsel for the PD Beneficiaries selected by
the PD Trustees and any other interested parties whom the PD Trustees
desire to consult, may amend, delete or add to any of the procedural
provisions with respect to the operation of the PD Claims Resolution
Facility except for Modifications, provided that no such amendment,
deletion or addition may affect any of the substantive provisions set forth
in such Annex B, including, without limitation, the provisions relating to
the standards and methods of asbestos hazard abatement and the percentage
of abatement costs to be borne by the PD Trust, and PD Claims Resolution
Facility shall thereafter mean the PD Claims Resolution Facility as so
amended deleted from or added to.
PD DEFERRED AMOUNT at any time means the Deferred Amount at the
Termination Date, if earlier than the maturity of the Second Bond provided
that, if the Trust terminates on or prior to December 31, 2013, the PD
Deferred Amount during 2014 shall mean the excess, if any, of $75,000,000
over the amount paid to the Trust and the PD Trust during 2013 pursuant to
Section 2.1 of the Second Bond.
PD INSURANCE COVERAGE means insurance coverage, not reduced to
Cash Settlement Proceeds, available in respect of Property Claims and/or PD
Trust Expenses U) pursuant to any Settlement Agreement or (ii) under any
Policy.
PD INSURANCE PROCEEDS means (i) all Cash Settlement Proceeds paid
or payable to the PD Trust pursuant to Settlement Agreements and (ii) all
Non-Cash Settlement Proceeds of PD Insurance Coverage. PD Insurance
Proceeds shall be deemed received by the PD Trust when actually received by
the PD Trust or when paid to another Person in respect of a Liquidated
Property Claim or a PD Trust Expense.
PD STOCK PROCEEDS FUND has the meaning assigned to it in Section
4.01 of the PD Trust Agreement.
PD SUPPLEMENTAL AGREEMENT means the agreement dated as at the
Consummation Date between the Company, the PD Trust and the Trust
substantially in the form of Annex C to the PD Trust Agreement, as the same
may be amended from time to time in accordance with Section 6.02 thereof.
PD TERMINATION DATE has the meaning assigned to it in Section 6.02
of the PD Trust Agreement.
PD TRANSFER AMOUNT AND PD TRANSFER DISTRIBUTION have the meanings
assigned to them in Subsection 4.02(n) of the PD Supplemental Agreement.
PD TRUST means the Manville Property Damage Settlement Trust
established pursuant to Article II of the PD Trust Agreement.
PD TRUST AGREEMENT means the trust agreement between the
Debtors and the PD Trustees dated as at the Consummation Date substantially
in the form of Exhibit D to the Plan, as it may be amended or modified from
time to time in accordance with Section 6.03 thereof.
PD TRUST ASSETS means the assets of the PD Trust as more fully
described in Article II of the PD Trust Agreement.
PD TRUST ESTATE at any time means all assets of the PD Trust at
such time.
PD TRUST EXPENSES means all expenses of the PD Trust determined on
a cash basis (including, without limitation, compensation, legal,
accounting and other professional fees, expenses relating to the operation
of the PD Claims Resolution Facility, disbursements and related expenses,
corporate overhead and reimbursement and indemnification payments) other
than payments in respect of Property Claims.
PD TRUSTEES means the Persons approved by the Court to act as
trustees under the PD Trust Agreement and their successors pursuant to
Article V thereof.
PERSON, except when used in the Plan, means any individual,
corporation, partnership, joint venture, association, trust, unincorporated
organization or government or any agency or political subdivision thereof.
PLAN means the Debtors' "Second Amended and Restated Plan of
Reorganization," as it may be amended or modified from time to time, which
shall be deemed to amend, modify and supersede in all respects the Debtors'
"Joint Plan of Reorganization" dated October 17, 1983 and filed with the
Clerk of the Court on November 21, 1983 and the Debtors' "First Amended and
Restated Plan of Reorganization" dated February 14, 1986 and filed with the
Clerk of the Court on February 14, 1986.
POLICY means any insurance policy covering any of the Debtors or
any predecessor thereto in effect at or prior to the Consummation Date
under which any claim may be made in respect of any AH Claim, Other
Asbestos Obligation or Property Claim, including, without limitation, any
insurance policy listed in Schedule II to the Plan and any other insurance
policy which is at the Consummation Date the subject of a Settlement
Agreement listed on Schedule III to the Plan if such Settlement Agreement
subsequently terminates.
POSTPETITION INTEREST RATE means with respect to an Allowed
Class 6 Claim and at any time (i) the pre-default contractual interest rate
applicable at the Filing Date as provided for under the instrument or
agreement giving rise to such Allowed Class 6 Claim, or (ii) in the absence
of any such contractual interest rate, the rate of 9% per annum.
POSTPETITION INTEREST RATIO means with respect to an Allowed Class
6 Claim the ratio obtained by dividing (i) the amount of interest on the
amount of such Allowed Class 6 Claim from the Filing Date to the
Consummation Date, by (ii) the aggregate amount of interest from the Filing
Date to the Consummation Date on all Allowed Class 6 Claims (other than
Allowed Class 6 Claims paid in accordance with Paragraph 3.6.A of the
Plan), such amounts and aggregate amounts of interest calculated in each
case using the applicable Postpetition Interest Rate; provided, that (w) if
such Allowed Class 6 Claim (or any Allowed portion thereof) was contingent
or unliquidated as of the Filing Date and became fixed or liquidated, as
the case may be, after the Filing Date but before the Consummation Date,
the amount of interest shall be calculated on such claim (or Allowed
portion thereof) from the date such claim (or portion thereof) became fixed
or liquidated to the Consummation Date, (x) if such Allowed Class 6 Claim
(or any Allowed portion thereof) was contingent or unliquidated as of the
Filing Date and did not become fixed or liquidated, as the case may be,
before the Consummation Date, the amount of interest with respect to such
Claim (or Allowed portion thereof) shall be zero (y) any Allowed Class 6
Claim (or any Allowed portion thereof) which is solely a Claim for damages
shall be deemed to be unliquidated for purposes of Clauses (w) and (x)
hereof, and (z) with respect to any Class 6 Claim (or any portion thereof)
which is a Disputed Class 6 Claim as of the Consummation Date, the amount
of interest with respect to such Claim shall be zero.
PROFITS for any Fiscal Year means the Company's Adjusted
Consolidated Net Earnings for such Fiscal Year (less dividends declared
(unless not thereafter paid) on Financing Preferred Stock in such Fiscal
Year, provided that for purposes only of the Supplemental Agreement,
dividends on Financing Preferred Stock shall only be deducted to the extent
that the sum of such dividends plus dividends declared (unless not
thereafter paid) on Series B Preference Stock exceeds $25 million in such
Fiscal Year) adjusted (without double counting) by not giving effect to (a)
any profit or loss on any sales or other dispositions of assets of the
Company or any of its consolidated Subsidiaries (including securities of
any Subsidiary of the Company but not including any other securities) not
in the ordinary course of business or writedowns for discontinuance of
operations of any portion of the Company or any of its consolidated
Subsidiaries, (b) any accruals or payments required in connection with the
Company's obligations to the PD Trust under the PD Supplemental Agreement,
or the Second Bond or to the Trust under the Supplemental Agreement, the
Bonds Repurchase Agreement, the Second Bond, except to the extent that
accruals under the Bonds Repurchase Agreement or payments of principal
under the Second Bond are treated as interest expense when determining net
earnings under generally accepted accounting principles, (c) any reserves
or other contingencies with respect to asbestos related personal injury or
property damage claims other than reserves or contingencies resulting from
annual accruals with respect to workers' compensation performed on a basis
consistent with the Company's past practice, (d) any amortization of
goodwill, (e) Government Proceeds and (f) any payments, accruals or
accretions with respect to the Class 6 Interest Debentures.
PROPERTY CLAIMS means (a) all Claims timely filed in accordance
with the order of the Court issued on October 17, 1984, as amended and
clarified by the Court, against one or more of the Debtors (under any
theory of law, equity or admiralty), other than AH Claims and other Claims
for death, personal injuries or personal damages, for damages arising or
allegedly arising from the presence in buildings or other structures of
asbestos (alone or as contained in asbestos-containing products), which was
sold, supplied or produced, or allegedly sold, supplied or produced, by one
or more of the Debtors prior to the Confirmation Date, or for which one or
more of the Debtors is otherwise liable or allegedly liable due to the acts
or omissions of one or more of the Debtors prior to the Confirmation Date,
including, without limitation, all Claims for compensatory damages (such as
proximate, consequential, general and special damages) and punitive
damages, (b) all Claims timely filed in accordance with the order of the
Court issued on October 17, 1984, as amended and clarified by the Court, or
in accordance with any subsequent applicable order of the Court, against
one or more of the Debtors in respect of warranty, guarantee,
indemnification or contribution liabilities or obligations of any of the
Debtors to any other Person to the extent that such warranties, guarantees,
indemnifications or contribution responsibilities cover claims against such
other Person that would, if such claims had been made directly against any
of the Debtors, constitute Property Claims under Clause (a) above and (c)
all Claims timely filed against one or more of the Canadian Companies where
such Claims, if made and timely filed against one or more of the Debtors
instead, would constitute Property Claims under Clause (a) or (b) above.
Where the context requires, Property Claims shall also mean claims in
respect of Property Claims filed with the PD Claims Resolution Facility in
accordance with the provisions thereof.
REAFFIRMATION ORDER means an order of the Court (a) reaffirming
the injunctive provisions (P. 29) of the Confirmation Order and (b)
declaring that those injunctive provisions are not subject to revocation or
modification thereafter.
RELATED PARTY of any attorney means any other attorney who is or
was a partner of such attorney, or is or was a shareholder in a
professional corporation in which such attorney is or was also a
shareholder.
RETURN ON EQUITY means, for any company for any year, the
percentage determined by dividing (a) the consolidated net income of such
company for such year, before extraordinary items and discontinued
operations and after taxes and less the amount of any preferred dividends
paid during such year, by (b) the average of the common stockholders'
equity of such company at the end of such year and at the end of the
preceding year.
SCHEDULES means the schedules heretofore filed by the Debtors with
the Clerk of the Court pursuant to Bankruptcy Rule 1007, as they have been
or may be amended from time to time.
XXXXXXXX NOTES means the Senior Notes due 2004 of Xxxxxxxx
International Group, Inc. (or any successor obligor under such notes)
transferred by the Company to the Trust pursuant to the Bonds Repurchase
Agreement.
SECOND AMENDED AND RESTATED SUPPLEMENTAL AGREEMENT means the
Second Amended and Restated Supplemental Agreement dated as of April 5,
1996, between the Company and the Trust, as the same may be amended from
time to time in accordance with Section 6.02 thereof.
SECOND AMENDMENT TO THE TRUST AGREEMENT means the amendment to the
Trust Agreement dated as of November 15, 1990, between the Company, as
successor to the Trustors, and the Trustees.
SECOND BOND means the Manville Settlement Trusts Second Bond Due
March 31, 2015, issued by the Company to the Trust and the PD Trust
pursuant to Paragraph 4.1 of the Plan and substantially in the form of
Annex E to the Trust Agreement, as it may be amended from time to time.
SECURITIES ACT means the Securities Act of 1933, as amended.
SELECTED COUNSEL FOR THE BENEFICIARIES means three lawyers to be
designated from time to time in a writing addressed to the Trustees with a
copy to the Company by the Board of Trustees of the Asbestos Litigation
Group.
SELECTED REPRESENTATIVES FOR THE PD BENEFICIARIES means five (5)
individuals to be designated from time to time (in a writing addressed to
the Company and to the PD Trustees) as follows: one (1) Person selected by
each of the National Association of Attorneys General, National Association
of School Boards, American Hospital Association, National Association of
College and University Business Officers and National Institute of
Municipal Law Officers, or their respective successor organizations.
SERIES B PREFERENCE STOCK means the Cumulative Preference Stock,
Series B, par value $1.00 per share, of the Company.
SETTLEMENT AGREEMENT means (i) each settlement agreement listed in
Schedule III to the Plan and (ii) any other settlement agreement with
respect to any Policy or relating to claims against any insurance broker.
SETTLEMENT ORDER means an order of settlement that the class
representatives and the Trustees in the Class Action Lawsuit will propose
and request the entry of (after notice to all class members and a hearing)
by the Court, which order will (i) approve the actions of the Trustees in
causing the Trust to commence the Limited Fund Proceeding, (ii) approve the
settlement of the Class Action Lawsuit on terms and conditions satisfactory
to the class representatives and the Trustees, (iii) authorize and approve
the execution, delivery and performance by the Trustees and the Trust of a
master agreement in the form agreed to between the Company and the Trust
and the agreements and actions contemplated therein and of all documents
and agreements necessary to effectuate the settlement of the Class Action
Lawsuit, (iv) direct the class representatives to execute on behalf of
themselves and all class members and to deliver to the Trustees and the
Company unconditional releases of the Company and its former, present and
future affiliates and successors and cognate covenants not to xxx in form
and substance reasonably satisfactory to the Company, (v) enjoin all class
members from commencing or maintaining any action or proceeding based on
asbestos claims against the Trust, except as provided in the Settlement
Order, or against the Company or its former, present or future affiliates
or successors and (vi) reaffirm the injunctive provisions (P. 29) of the
Confirmation Order.
SETTLING INSURANCE COMPANY means any insurance company or
insurance broker which has entered into, or subsequently enters into, a
Settlement Agreement.
SPECIAL FUND TRUST means the trust established pursuant to
the Asbestos Victims Special Fund Trust Agreement dated as of February 6,
1986 among Xxxxxxx X. Xxxx, Xxxxxxxxx X. Xxxxx, Xxxxxx X. Xxxxxxxxx, Xxxx
Locks and Xxxxxx X. Xxxxxx as trustors and as trustees, a copy of which is
attached to the Plan as Exhibit I. It is understood that the Trustees will
be added as additional trustees of the Special Fund Trust to serve
effective as of the Consummation Date.
STOCK PROCEEDS FUND has the meaning assigned to it in Section 4.01
of the Trust Agreement.
SUPPLEMENTAL AGREEMENT shall have the meaning set forth in the
recitals.
SUBSIDIARY means with respect to any Person any corporation or
other entity of which securities or other ownership interest having
ordinary voting power to elect a majority of the board of directors or
other Persons performing similar functions are at the time directly or
indirectly owned by such Person.
TAX MATTERS AGREEMENT means the Tax Matters and Amended Trust
Relationship Agreement, dated as of June 22, 2000, between the Company and
the Trust.
TAXES means all federal, state, local or foreign taxes,
assessments, duties levies or similar charges of any kind imposed on the
income of the Designated Settlement Fund (including, without limitation,
any Tax imposed pursuant to the Statutory Tax Provision) and including any
interest, fines, penalties, assessments or additions to Tax resulting from,
attributable to or incurred in connection with any such Tax or any contest
or dispute thereof.
TENDER OFFER means an offer to acquire shares of Company Common
Stock with respect to which a Schedule 14D-1 is required to be filed with
the Commission pursuant to Rule 14d-3 under the Exchange Act.
TERMINATION DATE has the meaning assigned to it in Section 6.02 of
the Trust Agreement.
THIRD AMENDED AND RESTATED SUPPLEMENTAL AGREEMENT means the Third
Amended and Restated Supplemental Agreement dated as of __________________,
2000, between the Company and the Trust, as the same may be amended from
time to time in accordance with 4.02 thereof.
TRANSFER means, with respect to any share of Company Common Stock,
any sale, transfer, assignment or exchange of, or pledge or other
hypothecation of or imposition of an Encumbrance on, or granting of an
option to purchase with respect to, or any donation or gifting of, or any
other disposition of any type whatsoever of any record or beneficial
interest in such shares of Company Common Stock. The words Transfer when
used as a verb and Transferee shall have correlative meanings.
TRANSFEREE INDEMNIFICATION LIABILITY means a Claim arising from
the sale following the Filing Date of any of the Debtors' businesses that
is asserted by the purchaser of any of such businesses.
TRAVELERS AGREEMENT means the settlement agreement dated July 18,
1984, with Travelers Insurance Co., Home Insurance Co. and the Lloyd's
Syndicates and British Companies named therein, providing for $314,415,000
in cash, plus accrued interest thereon.
TRUST means the Manville Personal Injury Settlement Trust
established pursuant to Article II of the Trust Agreement.
TRUST AGREEMENT means the Manville Personal Injury Settlement
Trust Agreement between the Debtors and the Trustees dated as at the
Consummation Date, as it may be amended or modified from time to time in
accordance with Section 6.03 thereof.
TRUST ASSETS means the assets of the Trust as more fully described
in Article II of the Trust Agreement.
TRUST CLAIM means any claim asserting Trust Liabilities to a
Beneficiary.
TRUST ESTATE at any time means all assets of the Trust at such
time.
TRUST EXPENSES means all expenses of the Trust determined on a
cash basis (including, without limitation, compensation, legal, accounting
and other professional fees, expenses relating to the operation of the
Claims Resolution Facility, disbursements and related expenses, corporate
overhead and reimbursement and indemnification payments) other than
payments in respect of Trust Claims.
TRUST LIABILITIES means all Other Asbestos Obligations and Allowed AH
Claims.
TRUSTEES means the Persons approved by the Court to act as
trustees under the Trust Agreement and their successors pursuant to Article
V thereof.
TRUSTORS means the Debtors and the Canadian Companies.
UNLIQUIDATED means, with respect to any Trust Claim or Property
Claim, a Trust Claim or Property Claim as to which Liquidation has not yet
occurred.
UNSECURED CREDITORS' COMMITTEE means the "Official Committee of
Unsecured Creditors" consisting of those heretofore or hereafter appointed
in the Cases by the Acting United States Trustee for the Southern District
of New York.
WARRANT AGREEMENT means the agreement, dated as of the
Consummation Date, between the Company and the Warrant Agent thereunder,
substantially in the form of Exhibit C to the Plan, as it may be modified
or amended from time to time.
WARRANTS mean the warrants to purchase shares of Company Common
Stock issued pursuant to the Warrant Agreement.
Exhibit B
FORM OF
AMENDMENT TO AMENDED AND RESTATED
MANVILLE PERSONAL INJURY SETTLEMENT TRUST AGREEMENT
AMENDMENT (this "Amendment"), dated as of _________, 2000,
among Xxxxx Xxxxxxxx Corporation (formerly known as Xxxxxxxx Corporation),
a Delaware corporation (the "Company"), and Xxxxxx X. Xxxxxx, Xxxxx Xxxxx,
Xx., Xxxxx X. Xxxxxxxxxxx and Xxxxxxxxx X. Xxxxxx, Xx., as Trustees
(together, the "Trustees").
WHEREAS, the Company and the Trustees are parties to the
Amended and Restated Manville Personal Injury Settlement Trust Agreement,
dated as of April 29, 1997 (the "Trust Agreement");
WHEREAS, the Company, HB Merger LLC, a Delaware limited
liability company ("Merger Company") and HB Finance LLC, have entered into
the Agreement and Plan of Merger, dated as of June 22, 2000 (the "Merger
Agreement") which provides for, among other things, the merger of Merger
Company with and into the Company; and
WHEREAS, the parties hereto have determined that in furtherance
of the transactions contemplated by the Merger Agreement, the Company and
the Trustees should enter into the Amendment.
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
Article I
Amendments
1.1. Amendments. The Trust Agreement is hereby deemed to be
amended to take account of each of the amendments set forth in Article II
hereof.
Article II
Amendments to the Trust Agreement
2.1. Section 3.01.
(a) Section 3.01(b)(xvi). Section 3.01(b)(xvi) of the Trust
Agreement shall be deleted in its entirety and the following shall be
substituted:
(xvi) consult with the Selected Counsel for the
Beneficiaries and the Legal Representative at such
times and with respect to such issues relating to
the conduct of the Trust as the Trustees consider
desirable;
(b) Section 3.01(c). Section 3.01(c) of the Trust Agreement
shall be deleted in its entirety and the following shall be substituted:
(c) The Trustees shall not have the power to
Guarantee any Debt of other Persons, except that the
Trust may Guarantee Debts in the ordinary course of
business in respect of operating agreements of its
wholly owned subsidiary established to administer the
Claims Resolution Facility.
2.2. Section 3.02. Section 3.02(e) of the Trust Agreement shall
be deleted in its entirety and the following shall be substituted:
3.02(e)
2.3. Section 4.01.
(a) Section 4.01(b): Section 4.01(b) of the Trust Agreement
shall be deleted in its entirety and the following shall be substituted:
(b) [Reserved]
(b) Section 4.01(c). Section 4.01(c) of the Trust Agreement
shall be deleted in its entirety and the following shall be substituted:
(c) Subject to Section 2.02 hereof, the Trustees may,
from time to time, create additional funds, reserves
and accounts within the Trust Estate as they may deem
necessary, prudent or useful in order to provide for
the payment of Trust Expenses and Trust Claims, and
may, with respect to any such fund, reserve or
account, restrict the use of monies therein; provided
that the establishment and use of such funds,
reserves and accounts shall not in any event result
in any transfer, direct or indirect, of assets
between the Basic Trust Fund and any other fund,
reserve or account.
(c) Section 4.01(d). Section 4.01(d) of the Trust Agreement
shall be deleted in its entirety and the following shall be substituted:
Any investment earnings received with respect to, or
other proceeds of, any asset held within any fund
created hereby or pursuant hereto shall be credited
to such fund.
2.4. Section 5.02(b). The first sentence of Section 5.02(b) of
the Trust Agreement shall be deleted in its entirety and the following
shall be substituted:
Any Trustee may resign at any time by written notice
to each of the remaining Trustees, the Selected
Counsel for the Beneficiaries, the Legal
Representative and, until such time as the Trust is
no longer the beneficial owner of voting securities
of the Company (other than voting securities held
indirectly by the Trust through investment funds, the
investments of which the Trust does not control) (the
"Company Termination Date"), the Company.
2.5. Section 5.03(b). Section 5.03(b) of the Trust Agreement
shall be deleted in its entirety and the following shall be substituted:
(b) If the Trustees are unable to appoint a successor
Trustee pursuant to Subsection (a) above who accepts
such an appointment in writing within 90 days after
the occurrence of the vacancy in the position of a
Trustee and after notice to the Selected Counsel for
the Beneficiaries, the Legal Representative and,
until the Company Termination Date, the Company and
publication of notice in the national edition of The
Wall Street Journal or The New York Times, the
Trustees shall apply to the Court, which shall
appoint a successor Trustee or successor Trustees.
2.6. Section 6.02.
(a) Section 6.02(a)(ii). Section 6.02(a)(ii) of the Trust
Agreement shall be deleted in its entirety and the following shall be
substituted:
(x) in the judgment of 80% of the Trustees, a de
minimis number of Trust Claims are being filed at a
de minimis rate and (y) the Selected Counsel for the
Beneficiaries, the Legal Representative and the
Company shall have consented in writing to such
dissolution;
(b) Section 6.02(a)(iii). Section 6.02(a)(iii) shall be deleted
in its entirety and the following shall be substituted:
the Trust or the Company procures from one or more
responsible insurance companies acceptable to the
Company, the Selected Counsel for the Beneficiaries
and the Legal Representative one or more irrevocable
liability insurance policies covering all Trust
Claims;
(c) Section 6.02(a)(v). Section 6.02(a)(v) of the Trust
Agreement shall be deleted in its entirety and the following shall be
substituted:
The Company and the Trustees, with the written
consent of the Legal Representative and the Selected
Counsel for the Beneficiaries, agree in writing to
the termination of the Trust.
(d) Section 6.02(b) of the Trust Agreement shall be deleted in
its entirety and the following shall be substituted:
(b) On the Termination Date, all Trust Claims shall
be extinguished, the Trust shall be dissolved and the
injunction provided for in Paragraph 9.2.A.3 of the
Plan shall be modified in accordance with the order
issuing such injunction, and all of the Trust's
assets shall be transferred and applied to such
charitable purposes as the Trustees in their
reasonable discretion shall determine, which
charitable purposes, if practicable, shall be related
to the treatment of asbestos-caused disorders and the
Trustees agree to execute and deliver, or cause to be
executed and delivered, such agreements, instruments
and other documents as may be necessary or advisable
to implement the foregoing.
(e) Section 6.02(c) of the Trust Agreement shall be deleted in
its entirety.
2.7. Section 6.03(a). Section 6.03(a) shall be deleted in its
entirety and the following shall be substituted:
The Trustees (by vote of 80% of the Trustees), with
only the concurrence (as defined in the Governance
Rights Agreement, dated as of July 20, 1993, among
the Trust, the Trustees, the Selected Counsel for the
Beneficiaries and the law firms named on the
signature pages thereof) of the Selected Counsel for
the Beneficiaries and the Legal Representative may
modify, supplement or amend this Trust Agreement in
any respect, such modification, supplement or
amendment to be evidenced in writing; provided, that
(i) any modification, supplement or amendment to
Section 6.02(a) or 6.03 of this Trust Agreement shall
also require the consent of the Company, and (ii) no
such modification, supplement or amendment shall,
without the written consent of the Company, impose
any current or future obligation, liability or duty
on the Company or detract from the Company's rights
under this Agreement. Written notice of any proposed
modification, supplement or amendment shall be
provided to the Company in accordance with Section
6.06 hereof no later than 30 days prior to the
proposed effectiveness thereof.
2.8. Section 6.03(b). Section 6.03(b) of the Trust Agreement
shall be deleted in its entirety and the following shall be substituted:
(b) [Reserved]
2.9. Section 6.04. Section 6.04 of the Trust Agreement shall be
deleted in its entirety and the following shall be substituted:
6.04. [Reserved]
2.10. Section 6.06. Section 6.06 of the Trust Agreement shall
be deleted in its entirety and the following shall be substituted:
Notices to Persons asserting Trust Claims shall be
given at the address of such Person, or, where
applicable, such Person's legal representative, in
each case as provided on such Person's Proof of Claim
(as defined in Annex B hereto). Any notices or other
communications required or permitted hereunder shall
be in writing and delivered at the addresses
designated below, or sent by telex or telecopy
pursuant to the instructions listed below, or mailed
by registered or certified mail, return receipt
requested, postage prepaid, addressed as follows, or
to each such other address or addresses as may
hereafter be furnished by the Company to the Trustees
or by the Trustees to the Company in compliance with
the terms hereof.
All such notices and communications shall be
effective when delivered at the designated addresses
or when the telex or telecopy communication is
received at the designated addresses and confirmed by
the recipient by return telex or telecopy in
conformity with the provisions hereof.
To the Trust or the Trustees:
Manville Personal Injury
Settlement Trust
000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Chairman and Managing Trustee
with a copy to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxxxx, III
To the Company:
Xxxxx Xxxxxxxx Corporation
000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: Corporate Secretary
with copies to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Fax: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxx
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Simeon Gold
2.11. Section 6.14. The final sentence of Section 6.14 of the
Trust Agreement shall be deleted in its entirety and the following shall be
substituted:
Upon the acceptance of any such account by the Court
after hearing on notice to the Selected Counsel for
the Beneficiaries, the Legal Representative and such
other parties as the Court shall designate, the
Trustees shall be discharged from any further
liability or responsibility to any Beneficiary or
other Person as to all matters embraced in such
account.
Article III
Representations and Warranties
3.1 Representations and Warranties of the Trust. The Trust
represents and warrants to the Company as of the date of this Amendment
that neither the execution and delivery by the Trustees of this Amendment
nor compliance by the Trust with the terms of this Agreement
will(i)conflict with or result in a breach of, or constitute a default
under, or require any consent or waiver under, any of the terms,
obligations, covenants, conditions or provisions of any indenture,
mortgage, deed of trust, pledge, bank loan or credit agreement, or other
agreement or instrument to which the Trust is a party or by which it or its
assets may be bound or (ii) conflict with or result in a breach of any of
the terms, conditions or provisions of any statute, judgment, order, writ,
injunction, decree, rule or regulation of any Governmental Unit subject to
the Trust's obtaining the concurrence of the Selected Counsel for the
Beneficiaries and the Legal Representative and except for any such
conflict, breach or default that would not be reasonably be expected to,
individually or in the aggregate, have a material adverse effect on the
Trust or prevent or materially impair or delay the consummation of the
transactions contemplated hereby.
3.2 Representations and Warranties of the Company. The Company
represents and warrants to the Trust as of the date of this Amendment that
neither the execution and delivery by the Company of this Amendment nor
compliance by the Company with the terms of this Agreement will (i)
conflict with or result in a breach of, or constitute a default under, or
require any consent or waiver under, any of the terms, obligations,
covenants, conditions or provisions of any indenture, mortgage, deed of
trust, pledge, bank loan or credit agreement, or other agreement or
instrument to which the Company is a party or by which it or its assets may
be bound or the certificate of incorporation and by-laws of the Company or
(ii)conflict with or result in a breach of any of the terms, conditions or
provisions of any statute, judgment, order, writ, injunction, decree, rule
or regulation of any Governmental Unit except for any such conflict, breach
or default that would not be reasonably expected to, individually or in the
aggregate, have a material adverse effect on the Company or prevent or
materially impair or delay the consummation of the transactions
contemplated hereby.
Article IV
Miscellaneous
4.1. Amendments. This Amendment may be modified, supplemented
or amended, or the provisions hereof waived, in writing signed by each
party hereto.
4.2. References to Agreement. All references in the Trust
Agreement to the "Trust Agreement" or this "Agreement" shall be deemed to
be references to the Trust Agreement as amended hereby and as further
amended from time to time.
4.3. Severability. Should any provision in this Amendment 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 Amendment.
4.4. Counterparts. This Amendment may be executed in any number
of counterparts, each of which shall constitute an original, and such
counterparts shall together constitute but one and the same instrument.
4.5. Headings; Capitalized Terms. The headings used in this
Amendment are inserted for convenience only and neither constitute a
portion of this Amendment nor in any manner affect the construction of the
provisions of this Amendment. Capitalized Terms used but not defined herein
shall have the meanings ascribed to such terms in the Trust Agreement.
4.6. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
4.7 No Further Amendments. Except as expressly provided in this
Amendment, the Trust Agreement shall not be amended or deemed to be amended
in any respect in connection with this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective duly authorized officers as of
the day and year first above written.
XXXXX XXXXXXXX CORPORATION
By: ___________________________
Name:
Title:
TRUSTEES
_______________________________, as Trustee
Name: Xxxxxx X. Xxxxxx
_______________________________, as Trustee
Name: Xxxxx Xxxxx, Xx.
_______________________________, as Trustee
Name: Xxxxx X. Xxxxxxxxxxx
_______________________________, as Trustee
Name: Xxxxxxxxx X. Xxxxxx, Xx.
EXHIBIT C
FORM OF
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Escrow Agreement") is made and
entered into as of this _____ day of ______________, 2000, by and among
Xxxxx Xxxxxxxx Corporation, a Delaware corporation (the "Company"),
Manville Personal Injury Settlement Trust, a New York trust (the "Trust"),
and _____________________, a national banking association, as Escrow Agent
(the "Escrow Agent").
A. Pursuant to that certain Tax Matters and Trust Relationship
Agreement, dated as of June 22, 2000 (the "Tax Matters Agreement"), between
the Company and the Trust, the Company has agreed to pay to the Trust
$90,000,000 in connection with the Trust's agreement to indemnify and hold
harmless the Company from certain tax liabilities.
B. As a condition precedent to the closing of the transactions
contemplated by the Tax Matters Agreement (the "Closing"), the Company and
the Trust have agreed to execute and deliver this Escrow Agreement.
Accordingly, in consideration of the recitals and of the
respective agreements and covenants contained herein, and intending to be
legally bound hereby, the parties agree as follows:
Article I
Section 1.1 Escrow Funds. The Trust shall deliver to the Escrow
Agent $90,000,000 by transfer of immediately available funds to an account
designated in writing by the Escrow Agent to the Trust (the "Escrow
Account"); provided, however, that, if prior to the Closing Date (as
defined in the Merger Agreement), the Court has issued an order, which
order shall be in full force and effect, providing that, in connection with
the liquidation, insolvency (or similar bankruptcy event), reorganization,
termination, dissolution or winding up of the Trust, (i) the Trustees
shall, prior to paying beneficiaries, creditors or possible claimants of
the Trust, pay or cause to be paid from the Escrow Funds the amount of
Taxes owed to the Internal Revenue Service and the other applicable taxing
authorities (the "Escrow Funds Priority") and/or (ii) the Company shall
have priority over beneficiaries, creditors or possible claimants of the
Trust with respect to its claims for indemnification for Taxes set forth in
the Tax Matters Agreement (the "Indemnification Priority"), the Trust shall
only transfer to the Escrow Agent for deposit into the Escrow Account
$30,000,000 (or $40,000,000 if the Escrow Funds Priority has been ordered
but the Indemnification Priority has not been ordered). The Company agrees
that if the Escrow Funds Priority is granted by the Court after the date
hereof, the Trust shall be entitled to withdraw an amount of funds from the
Escrow Account such that the remaining liquid assets, including, without
limitation, cash and freely tradable securities (the "Liquid Assets"), in
the Escrow Account shall have a fair market value of at least $40,000,000
(or at least $30,000,000 if the Indemnification Priority is also granted).
The Trust further agrees that if both the Escrow Funds Priority and the
Indemnification Priority are in effect, or if only the Escrow Funds
Priority is in effect, it shall on or prior to the date that each quarterly
tax payments are required to be made to the Internal Revenue Service,
whether or not the Trust is required to make a payment on such date (a "Tax
Payment Date"), deliver to the Escrow Agent for deposit in the Escrow
Account Liquid Assets with a fair market value sufficient to cause the
amount of Liquid Assets constituting the Escrow Funds (after taking into
account the Taxes paid or required to be paid for such quarter) to have a
fair market value of not less than 150% (or 200% if the Escrow Funds
Priority has been ordered but the Indemnification Priority has not been
ordered) of the greater of (i) the projected Taxes determined by the Trust
in good faith to be owed by the Trust for the next succeeding four calendar
quarters and (ii) the Taxes paid by the Trust during any four consecutive
calendar quarters within the immediately preceding eight calendar quarters
(such greater amount, the "Tax Amount"). The amounts deposited in the
Escrow Account from time to time as contemplated above, together with all
interest and other income earned thereon, including, without limitation,
any capital gains, is referred to herein as the "Escrow Funds." The Escrow
Funds shall be held by the Escrow Agent for the benefit of the Trust as
provided in this Escrow Agreement.
Section 1.2 Acceptance of Appointment as Escrow Agent. The Escrow
Agent shall be selected by the Trust and shall be reasonably acceptable to
the Company. The Escrow Agent, by signing this Escrow Agreement, accepts
the appointment as Escrow Agent and agrees to hold and disburse all Escrow
Funds in accordance with the terms of this Escrow Agreement.
Section 1.3 Distributions; Investments. (a) Pending disbursement
of the Escrow Funds, the Escrow Agent shall cause the Escrow Funds to be
invested as directed by the Trust or investment managers retained by the
Trust in a manner consistent with Section 2.01 of the Trust Agreement (such
investments together with any other investment permitted by the Trust
Agreement are hereinafter referred to as "Permitted Investments"), it being
understood that the Trust may make investment decisions either on its own
or upon the advice of investment advisers and that the investment of the
Escrow Funds does not need to be pro rata with other investments of the
Trust.
(b) As and when any amount is needed for a distribution
pursuant to Section 1.4 of this Escrow Agreement, the Escrow Agent shall
cause a sufficient amount of the Permitted Investments to be converted into
cash, if an adequate amount of cash is not otherwise available, to be
withdrawn upon a request from the Trust. The Trust shall select the
investments or types of investments (and the portions thereof) to be
converted into cash in the event that the cash in the Escrow Account is not
sufficient to pay a cash request from the Trust. The Trust shall not be
liable to the Company for any loss of principal or income due to the choice
of Permitted Investments in which the Escrow Funds are invested or the
Permitted Investments sold or converted.
(c) As between the Escrow Agent and the Trust, for Tax
purposes, all interest and other income earned on the Escrow Funds shall be
income of the Trust, and all parties hereto shall file all Tax Returns
consistent with such treatment.
(d) The Designated Settlement Fund's tax identification
number is ________.
Section 1.4 Disbursement of Escrow Funds. (a) In addition to the
disbursements contemplated in the next paragraph, the Escrow Agent shall
disburse to the Trust such portion of the Escrow Funds as may be necessary
to (A) pay to the Designated Settlement Fund the Taxes of the Designated
Settlement Fund, (B) pay to the Designated Settlement Fund the Trust's
indemnification obligations under the Tax Matters Agreement, and (C)
reimburse the Designated Settlement Fund in the event the Trust has made
payments with respect to its indemnification obligations or Taxes under the
Tax Matters Agreement. Payment shall be made not more than two (2) Business
Days after the delivery to the Escrow Agent and the Company of written
instructions signed by the Trust specifying an amount to be paid from the
Escrow Funds.
(b) If on any Tax Payment Date that occurs after the second
anniversary of the date of this Agreement, the then fair market value of
the Liquid Assets in the Escrow Account exceeds 400% of the Tax Amount, the
Trust shall have the right (subject to Section 1.5), upon 5 Business Days
notice to the Company and the Escrow Agent, to withdraw assets from the
Escrow Account such that the fair market value of all Liquid Assets
contained in the Escrow Account shall be no less than 400% of the Tax
Amount as of such Tax Payment Date, after giving effect to any quarterly
tax payment made or required to be made for such quarter to the Internal
Revenue Service and, if due, other taxing authorities.
Section 1.5 Dispute Proceeding. If the Company disputes the
Trust's ability to withdraw funds from the Escrow Account pursuant to
Section 1.4(b), the Company shall promptly send a notice of dispute to the
Escrow Agent and the Trust. After receiving such notice the Escrow Agent
shall not disburse any Escrow Funds requested to be so disbursed until it
has received a notice to do so from the Company and the Trust or the
accounting firm referred to in the next sentence, except that the Trust
shall be entitled to withdraw the amount, if any, not in dispute. Any such
dispute shall be resolved by an independent nationally organized accounting
firm reasonably acceptable to the Company and the Trust. The Company and
the Trust will instruct the accounting firm to reach its conclusion
regarding such dispute within 20 days after its appointment. The report of
the accounting firm shall be final, binding and conclusive on the parties.
Upon a determination of such dispute in favor of the Trust, the Company and
the Trust shall provide the notice to the Escrow Agent to disburse funds
referred to above to the Trust in the amount determined by accounting firm.
The fees and expenses of such accounting firm shall be borne by the party
that such accounting firm determines has lost such dispute. Any other
dispute under this Agreement shall also be resolved by such accounting firm
in the same manner and on the same terms as described in this Section 1.5.
Section 1.6 Disbursement of Escrow Funds after Expiration Date.
Promptly following the Expiration Date (as hereinafter defined), the Escrow
Agent shall distribute as the Trustees shall have instructed the Escrow
Agent in the Trustees' last letter of instruction to the Escrow Agent
before or contemporaneously with the termination of the Trust, the Escrow
Funds. "Expiration Date" shall mean the date the Trust is terminated.
Article II
THE ESCROW AGENT
Section 2.1 Rights and Responsibilities of the Escrow Agent. (a)
The duties and responsibilities of the Escrow Agent shall be limited to
those expressly set forth in this Escrow Agreement, and it shall not be
subject to, nor obligated to recognize, any provision of any other
agreement between, or direction or instruction of, any of the other parties
to this Escrow Agreement. The Escrow Agent shall exercise the same degree
of care towards the Escrow Funds as it exercises towards its own similar
property. The Escrow Agent shall provide the Trust and the Company with the
annual reports describing the assets of the Escrow Account at the end of
such year, the activities within the Escrow Account during such year and
such other information as may be reasonably requested by the Company or the
Trust.
(b) If any Escrow Funds are at any time attached, garnished or
levied upon under any court order or in case the payment of any such Escrow
Funds shall be stayed or enjoined by any court order, or in case any order,
judgment or decree shall be made or entered by any court affecting such
Escrow Funds or any part thereof, then and in any of such events, the
Escrow Agent is authorized, in its sole discretion, to rely upon and comply
with any such order, judgment or decree which it is advised by legal
counsel is binding upon it. If the Escrow Agent complies with any such
order, judgment or decree, it shall not be liable to any of the parties to
this Escrow Agreement or to any other person by reason of such compliance
even though such order, judgment or decree may be subsequently reversed,
modified, annulled, set aside or vacated.
(c) The Escrow Agent shall not be liable for any act taken or
omitted under this Escrow Agreement if taken or omitted by it in good faith
and in the exercise of reasonable care under the circumstances. The Escrow
Agent shall also be fully protected in relying upon any written notice,
demand, certificate or document that it in good faith believes to be
genuine (including facsimiles thereof).
(d) The Escrow Agent, and any successor Escrow Agent, may resign
at any time as Escrow Agent hereunder by giving at least 30 days' written
notice to the Company and the Trust. Upon such resignation and the
appointment of a successor Escrow Agent, the resigning Escrow Agent shall
be absolved from any and all liability in connection with the exercise of
its powers and duties as Escrow Agent hereunder except for liability
arising in connection with its negligence or willful misconduct. Upon their
receipt of notice of resignation from the Escrow Agent, the Trust shall use
reasonable efforts to designate a successor Escrow Agent which is
reasonably acceptable to the Company. In the event the Company and the
Trust do not agree upon a successor Escrow Agent within 30 days after the
receipt of such notice, the Escrow Agent so resigning may petition any
court for the appointment of a successor Escrow Agent or other appropriate
relief and any such resulting appointment shall be binding upon all parties
hereto. The Trust and the Company shall have the right at any time upon not
less than 10 days' joint written notice to the Escrow Agent to terminate
their appointment of the Escrow Agent, or successor Escrow Agent, as Escrow
Agent. The Escrow Agent or successor Escrow Agent shall continue to act as
Escrow Agent until a successor is appointed and qualified to act as Escrow
Agent. Any successor Escrow Agent, whether appointed by the Trust and the
Company or by such a court, shall be a corporation or national association
organized and doing business under the laws of the United States or the
laws of any state, in good standing, which is authorized under such laws to
exercise corporate trust powers and is subject to supervision or
examination by a federal or state authority and which has at the time of
its appointment as escrow agent a combined capital and surplus of at least
$1,000,000,000. After appointment, the successor Escrow Agent shall,
without further action, be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Escrow Agent, but
the predecessor Escrow Agent shall deliver and transfer to the successor
Escrow Agent any property at the time held by it hereunder, and execute and
deliver any further assurance, conveyance, act or deed necessary for this
purpose.
(e) In the event conflicting demands are made or conflicting
notices are served upon the Escrow Agent, directly related to its duties
under this Agreement, the parties hereto agree that the Escrow Agent shall
take no action until (i) such action is agreed to in writing by the parties
hereto or (ii) issuance of a Court order directing the Escrow Agent with
respect to the action which is the subject of the conflicting demands or
notices.
(f) The Company and the Trust hereby agree to severally indemnify
the Escrow Agent for, and to hold Escrow Agent harmless against, any loss,
liability or expense incurred without negligence, bad faith or willful
misconduct on the part of the Escrow Agent, arising out of or in connection
with Escrow Agent's entering into this Agreement and carrying out Escrow
Agent's duties hereunder, including costs and expenses of successfully
defending the Escrow Agent against any claim of liability with respect
thereto; provided, however, that promptly after the receipt by the Escrow
Agent of notice of any claim or the commencement of any suit, action or
proceeding, the Escrow Agent shall, if a claim of indemnification in
respect thereof is to be made against any of the other parties hereto,
notify such other parties thereof in writing; and provided, further, that
the indemnifying party or parties shall be entitled, jointly or severally
and at their own expense, to participate in or assume the defense of any
such action, suit or proceeding. One half of any payment made pursuant to
this paragraph (f) shall be paid by the Company and one-half shall be paid
by the Trust. The Escrow Agent may consult with counsel of its own choice
and shall have full and complete authorization and protection for any
action taken or suffered by it hereunder in good faith and in accordance
with the opinion of such counsel.
Section 2.2 Fees and Expenses of Escrow Agent. The Escrow Agent
shall (a) be paid a fee for its services under this Escrow Agreement as
provided by Exhibit A with the Trust being responsible for all investment
and custodial expenses set forth thereon and the Company being responsible
for all other fees and (b) be entitled to reimbursement for reasonable
expenses (including the reasonable fees and disbursements of its counsel)
actually incurred by the Escrow Agent in connection with its duties under
this Escrow Agreement (the expenses referred to in this clause (b) being
hereinafter referred to collectively as the "Escrow Agent Expenses"). All
Escrow Agent Expenses shall be borne 50% by the Company and 50% by the
Trust. The Escrow Agent shall not be entitled to Escrow Funds for
reimbursement of any such fees and expenses until the expiration of ten
(10) business days following delivery of notice of the amount of such fees
and expenses to the Company and the Trust.
Article III
MISCELLANEOUS
Section 3.1 Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including
facsimile transmission or similar writing) and shall be given:
(i) if to the Trust, to:
Manville Personal Injury Settlement Trust
000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxx Xxxx 00000
Attention: Chairman and Managing Trustee
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(ii) if to the Company, to:
Xxxxx Xxxxxxxx Corporation
000 00xx Xxxxxx 00000
Xxxxxx, Xxxxxxxx 00000-0000
Attention: Chief Executive Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(iii) if to the Escrow Agent, to:
----------------------------
----------------------------
----------------------------
Attention:
Telephone:
Telecopy:
with a copy to:
----------------------------
----------------------------
----------------------------
Attention:
Telephone:
Telecopy:
Any party by written notice to the other parties pursuant to this Section
3.1 may change the address or the persons to whom notices or copies thereof
shall be directed.
Section 3.2 Headings. The headings used in this Escrow Agreement
are inserted for convenience only, and neither constitute a portion of this
Escrow Agreement nor in any manner affect the construction of the
provisions of this Escrow Agreement.
Section 3.3 Successors and Assigns. The provisions of this Escrow
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors. The Trust may not assign its rights
or delegate its obligations hereunder without the written consent of the
Company. The Company may assign its rights or delegate its obligations
under this Escrow Agreement to its successors without obtaining the prior
written consent of any other party hereto.
Section 3.4 Amendment. This Escrow Agreement may be modified,
supplemented or amended at any time and from time to time by a writing
signed by each party hereto.
Section 3.5 Waivers. Any waiver by any party hereto of any breach
of or failure to comply with any provision of this Escrow Agreement by any
other party hereto shall be in writing and shall not be construed as, or
constitute, a continuing waiver of such provision, or a waiver of any other
breach of, or failure to comply with, any other provision of this Escrow
Agreement.
Section 3.6 Governing Law; Submission to Jurisdiction. This Escrow
Agreement shall be governed by and in construed accordance with the laws of
the State of New York, INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK
GENERAL OBLIGATION LAW. SUBJECT TO SECTION 1.5 ABOVE, THE COMPANY, THE
TRUST AND THE ESCROW AGENT HEREBY SUBMIT TO THE EXCLUSIVE JURISDICTION OF
THE UNITED STATES BANKRUPTCY COURT OF THE SOUTHERN DISTRICT OF NEW YORK FOR
PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE COMPANY, THE
TRUST AND THE ESCROW AGENT IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PEMITTED BY LAW, (I) ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND
ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM
THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN ANY
INCONVENIENT FORUM AND (II) ALL RIGHTS TO TRIAL BY JURY IN ANY SUCH
PROCEEDING.
Section 3.7 Third Parties. This Escrow Agreement constitutes an
agreement solely between the parties hereto, and is not intended to and
shall not confer any rights or remedies obligations or liabilities, legal
or suitable on any person or entity other than the parties hereto and their
respective successors and assigns.
Section 3.8 Termination. This Escrow Agreement shall terminate at
the time of the final distribution by the Escrow Agent of all Escrow Funds
in accordance with the provisions of this Escrow Agreement.
Section 3.9 Capitalized Terms. Capitalized terms used herein,
unless otherwise defined, shall have the meanings assigned to them in the
Tax Matters Agreement.
Section 3.10 Counterparts. This Escrow Agreement may be signed in
any number of counterparts, each of which shall be an original with the
same effect as if the signatures thereto and hereto were upon same
instrument.
Section 3.11 Waiver of Offset Rights. The Escrow Agent hereby
waives any and all rights, arising at law or otherwise, to offset that it
may have against the Escrow Funds including, without limitation, claims
arising as a result of any claims, amounts, liabilities, costs, expenses,
damages, or other losses that the Escrow Agent may be otherwise entitled to
collect from any party to this Escrow Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be executed by their duly authorized officers as of the day
and year first above written.
XXXXX XXXXXXXX CORPORATION
By: ____________________________
Name: __________________________
Title:__________________________
ESCROW AGENT:
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[ ]
By:______________________________
Name:____________________________
Title:___________________________
MANVILLE PERSONAL INJURY SETTLEMENT TRUST
By: _____________________________
Name:____________________________
Title:___________________________
Exhibit A
FEES OF ESCROW AGENT
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