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EXHIBIT 4
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.
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"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).
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"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").
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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
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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
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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
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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:
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(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
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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
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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
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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
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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.
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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
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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.
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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.
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00
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
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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.
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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
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EXHIBIT A
MANVILLE PERSONAL INJURY
SETTLEMENT TRUST
THIRD AMENDED AND RESTATED
SUPPLEMENTAL AGREEMENT
DATED AS OF ____________, 2000
20
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
21
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.
22
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
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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.
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(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
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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
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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
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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.
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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:
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EXHIBIT A
TO
THIRD AMENDED AND RESTATED SUPPLEMENTAL AGREEMENT
GLOSSARY OF DEFINED TERMS(1)
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
--------
1 Unless the context requires otherwise, all capitalized terms used
within these definitions have the meanings assigned to them elsewhere
in this Glossary.
1
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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.
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.
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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.
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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
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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.
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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.,
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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
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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.
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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
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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
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(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.
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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.
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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.
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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 Xxxxxxxxxx
00
00
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 (paragraph 29) of the Confirmation Order and (b) declaring
that those injunctive provisions are not subject to revocation or modification
thereafter.
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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.
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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
(paragraph 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.
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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.
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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.
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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.
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Exhibit B
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.
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Article II
Amendments to the Trust Agreement
2.1. Section 3.01.
(a) Section 3.01(6)(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]
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(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.
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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 Trustee 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
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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 Selected 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(h) 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.
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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 all of the concurrence
(as defined in the Conference Rights Agreement, dated as of July 20, 1993,
among the Trust, and Trustees, the Selected Counsel of the Beneficiaries
and the law firms signed 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]
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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.
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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
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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
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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
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enforceability and operative effect of any and all other provisions of this
Amendment.
4.4. Counterpart. 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.
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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.
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