EX-10.2 3 dex102.htm MCC SETTLEMENT TRUST AGREEMENT
Exhibit 10.2
MCC SETTLEMENT TRUST AGREEMENT
This MCC SETTLEMENT TRUST AGREEMENT (the “MCC Settlement Trust Agreement”) is entered into as of October 21, 2004 (the “Effective Date”) by and among MCC Holdings, Inc. (f/k/a Xxxx Controls Corporation), a Delaware corporation (“MCC”), Xxxx X. Xxxxxxx, solely in his capacity as the Active Trustee hereunder, Wilmington Trust Company, a Delaware banking corporation (the “Delaware Trustee” and, collectively with the Active Trustee, the “Trustees”) solely in its capacity as the Delaware Trustee hereunder, and the Claimants Representative Committee (as defined herein). MCC, the Trustees and the Claimants Representative Committee may be referred to herein as a “Party” or collectively as the “Parties”.
WHEREAS, MCC is contemporaneously entering into the Master Settlement Agreement by which the parties thereto intend to resolve and settle all Asbestos Claims;
WHEREAS, in accordance with the Master Settlement Agreement, MCC (i) intends to establish the MCC Settlement Trust as an express trust, with MCC as settlor for the benefit of the Qualified Claimants and, under certain circumstances as provided herein, MCC, and (ii) shall transfer its rights, title and interests in certain assets to the MCC Settlement Trust as expressly provided hereunder;
WHEREAS, the parties to the Master Settlement Agreement have requested each of the Trustees to act as the Active Trustee and the Delaware Trustee, respectively, of the MCC Settlement Trust, and the Trustees have agreed to accept their appointment as such pursuant to the terms hereof; and
WHEREAS, the Parties desire to enter into this MCC Settlement Trust Agreement to confirm their agreements with respect to: (i) the creation of the MCC Settlement Trust, (ii) the establishment, maintenance, investment, and disbursement of the MCC Settlement Trust Assets, (iii) payment of Settlement Amounts to Qualified Claimants under the Master Settlement Agreement, and (iv) certain other matters relating to the foregoing, as hereafter provided.
ARTICLE I
“Active Trustee” means Xxxx X. Xxxxxxx solely in his capacity as Active Trustee hereunder, and any permitted successor or assign.
“Administrative Expense Reserve” has the meaning set forth in Section 4.7(e) herein.
“Administrative Expenses” has the meaning set forth in Section 4.7(e) herein.
“Asbestos Claimant” has the meaning set forth in the Master Settlement Agreement.
“Asbestos Claim” and “Asbestos Claims” have the meanings set forth in the Master Settlement Agreement.
“Bankruptcy Code” has the meaning set forth in the Master Settlement Agreement.
“Cash Contribution” means $10,000,000 contributed by MCC as of the Effective Date.
“Certificate of Trust” means the Certificate of Trust of the MCC Settlement Trust in the form required by the Delaware Act, attached hereto as Exhibit 5.
“Claimants Representative Committee” has the meaning set forth in Section 5.1 herein.
“Claimants Representative Committee Member(s)” has the meaning set forth in Section 5.1 herein.
“Claims” has the meaning set forth in the Master Settlement Agreement.
“Claims Reviewer” has the meaning set forth in the Master Settlement Agreement.
“Crane” means Crane Co., a Delaware corporation.
“Crane Note” means the demand note dated the Effective Date, executed by Crane and payable to the order of MCC in the original principal amount of $270,000,000 in the form attached hereto as Exhibit 8.
“Delaware Act” means Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. §§ 3801 et seq., and any successor statute, as amended from time to time.
“Delaware Trustee” means Wilmington Trust Company, solely in its capacity as Delaware Trustee hereunder, and any permitted successor or assign.
“Effective Date” has the meaning set forth in the preamble herein.
“FCR” has the meaning set forth in Section 4.5 herein.
“FEIN” has the meaning set forth in Section 7.5 herein.
“Law Firm Representative” has the meaning set forth in the Master Settlement Agreement.
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“Legal Change Event” has the meaning set forth in the Master Settlement Agreement.
“Master Settlement Agreement” means that certain Master Settlement Agreement entered into among MCC, the Claims Reviewer, the Secondary Claims Reviewer, the MCC Settlement Trust, the Claimants Representative Committee and the Asbestos Claimants, dated as of the date hereof, to which this MCC Settlement Trust Agreement is attached as Exhibit C.
“MCC” has the meaning set forth in the preamble herein.
“MCC Assignment” means the assignment of the Crane Note dated the Effective Date, executed by MCC, as assignor, to the MCC Settlement Trust, as assignee, in the form attached hereto as Exhibit 9.
“MCC Entity” and “MCC Entities” have the meanings set forth in the Master Settlement Agreement.
“MCC Plan of Reorganization” has the meaning set forth in the Master Settlement Agreement.
“MCC Settlement Trust” means the MCC Settlement Trust created hereby.
“MCC Settlement Trust Agreement” has the meaning set forth in the preamble herein.
“MCC Settlement Trust Assets” means (i) the Cash Contribution, (ii) the Crane Note, (iii) the MCC Assignment, and (iv) all proceeds of the foregoing.
“Nonconsensual Case” has the meaning set forth in the Master Settlement Agreement.
“Nonconsensual Case Filing Date” has the meaning set forth in the Master Settlement Agreement.
“Notice Parties” are those Parties listed in Section 9.4 herein.
“Participating Claimant” has the meaning set forth in the Master Settlement Agreement.
“Party” or “Parties” has the meaning set forth in the preamble herein.
“Person” has the meaning set forth in the Master Settlement Agreement.
“Plan of Reorganization” has the meaning set forth in the Master Settlement Agreement.
“Proceeding” has the meaning provided in the Master Settlement Agreement.
“Qualified Claimant” has the meaning set forth in the Master Settlement Agreement.
“Qualification Notice Form” has the meaning set forth in the Master Settlement Agreement.
“Release” has the meaning set forth in the Master Settlement Agreement.
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“Reorganization Term Sheet” has the meaning set forth in the Master Settlement Agreement.
“Secondary Claims Reviewer” has the meaning set forth in the Master Settlement Agreement.
“Settlement Amount” has the meaning set forth in the Master Settlement Agreement.
“Settlement Payment” has the meaning set forth in the Master Settlement Agreement.
“Settlement Payments” has the meaning set forth in the Master Settlement Agreement.
“Trustees” has the meaning set forth in the preamble herein.
“524(g) Trust” has the meaning set forth in Section 4.5 herein.
ARTICLE II
DECLARATION OF MCC SETTLEMENT TRUST
2.1 Creation of the MCC Settlement Trust. MCC hereby creates this MCC Settlement Trust known as the “MCC Settlement Trust,” as provided for and referred to in the Master Settlement Agreement, for the benefit of Qualified Claimants and, under certain circumstances, MCC. The creation of this MCC Settlement Trust shall be effective upon the filing of the Certificate of Trust with the Secretary of State of the State of Delaware. It is the intention of the Parties hereto that the MCC Settlement Trust be established under and comply with the Delaware Act, and that this document constitutes the governing instrument of the MCC Settlement Trust. The Active Trustee may transact the business and affairs of the MCC Settlement Trust in the name “MCC Settlement Trust.” Each Qualified Claimant shall be bound by the terms and conditions of this MCC Settlement Trust Agreement and shall be deemed a beneficial owner with respect to his or her rights and interests in the MCC Settlement Trust Assets.
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2.4 MCC’s Conveyance of MCC Settlement Trust Assets. Upon the Effective Date or as soon as practicable thereafter, MCC shall execute and deliver, or cause to be delivered, to the MCC Settlement Trust all of its rights, title and interest of MCC in the MCC Settlement Trust Assets. MCC shall cooperate and take such other actions as the Active Trustee may deem reasonably necessary or desirable in order to effectively transfer, convey and assign all rights, title and interests in and to the MCC Settlement Trust Assets.
(a) accept delivery, on behalf of the MCC Settlement Trust, from MCC of the MCC Settlement Trust Assets pursuant to MCC’s funding obligations detailed in Section 2.4 herein;
(b) accept from MCC all assumptions and assignments, and all other instruments of conveyance required to be delivered by MCC with respect to the MCC Settlement Trust Assets transferred to the MCC Settlement Trust pursuant to or in connection with the Master Settlement Agreement or this MCC Settlement Trust Agreement;
(c) notify the Claimants Representative Committee of its receipt of the MCC Settlement Trust Assets within one (1) business day of such receipt;
(d) take such other action as may be required of the MCC Settlement Trust hereunder, including the receipt and acceptance as part of the MCC Settlement Trust Assets of any property and instruments which the MCC Settlement Trust may receive in connection with or in consideration of the MCC Settlement Trust Assets.
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ARTICLE III
SETTLEMENT TRUST ADMINISTRATION
(i) The identity of the Qualified Claimant and each such Qualified Claimant’s respective Law Firm Representative; and
(ii) The Qualified Claimant’s Settlement Amount and the amount and date of each payment to be made by the MCC Settlement Trust as determined pursuant to Article VI of the Master Settlement Agreement.
(b) The Active Trustee, on its own behalf and on behalf of the MCC Settlement Trust, shall be entitled to rely upon Qualification Notice Forms received from the Claims Reviewer or the Secondary Claims Reviewer, as the case may be, as conclusive evidence of (i) the Participating Claimant’s eligibility as a Qualified Claimant hereunder, and (ii) the Qualified Claimant’s Settlement Amount and the amount and date of each payment to be made by the MCC Settlement Trust.
(a) The Active Trustee, on behalf of the MCC Settlement Trust, may draw on the Crane Note in accordance with its terms and, upon receipt of cash therefrom, shall make Settlement Payments (i) to the Law Firm Representative on behalf of a Qualified Claimant (and not directly to a Qualified Claimant), and (ii) only in accordance with and pursuant to Section 6.1 of the Master Settlement Agreement.
(b) Each Qualified Claimant’s Settlement Amount shall be reduced by the amount of all payments received by such Qualified Claimant from: (i) the MCC Settlement Trust or any successor trust; (ii) MCC or any third party paying claims on MCC’s behalf (whether directly or indirectly); or (iii) any trust formed pursuant to a MCC Plan of Reorganization confirmed pursuant to Section 1129 of the Bankruptcy Code.
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(c) The Active Trustee, on behalf of the MCC Settlement Trust, and MCC shall notify each other in writing of any and all payments each made or makes to Qualified Claimants or any third party paying claims on MCC’s behalf (whether directly or indirectly). Each of the Active Trustee, on its own behalf and on behalf of the MCC Settlement Trust, and MCC shall be entitled to rely upon such notices received from the Active Trustee and MCC as conclusive evidence of said payment(s).
ARTICLE IV
DUTIES AND POWERS OF THE TRUSTEES
4.1 Appointment of the Trustees.
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4.3 Resignation and Removal of Trustee.
(a) each power expressly granted in this MCC Settlement Trust Agreement and any power reasonably incidental thereto;
(b) to receive, hold and administer all the MCC Settlement Trust Assets and to have exclusive possession and control thereof for the purposes set forth in Section 2.2 hereof; provided that the Active Trustee is hereby authorized for and on behalf of the MCC Settlement
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Trust to execute and deliver, and cause the MCC Settlement Trust to perform its obligations under, a custody agreement between the MCC Settlement Trust and Wilmington Trust Company, as custodian, substantially in the form attached hereto as Exhibit 6, pursuant to the terms of which Wilmington Trust Company, as custodian, will maintain custody of the MCC Settlement Trust Assets;
(c) to enter into, perform and exercise rights under contracts binding upon the MCC Settlement Trust (but not upon the Active Trustee in its individual capacity) which are reasonably incident to the administration of the MCC Settlement Trust and which the Active Trustee, in the exercise of his judgment, believes to be in the best interests of the MCC Settlement Trust;
(d) to establish and maintain accounts at banks and other financial institutions, in a clearly specified fiduciary capacity, into which any reserves or other cash and property of the MCC Settlement Trust may be deposited, and draw checks or make withdrawals from such accounts, and to pay or distribute such amounts of the MCC Settlement Trust Assets as permitted or required under the Master Settlement Agreement or this MCC Settlement Trust Agreement;
(e) to employ and compensate attorneys (in addition to those attorneys employed and compensated pursuant to Section 4.7(a) hereof), accountants, appraisers, property managers, disbursing agents, brokers, realtors, expert witnesses, insurance adjusters or any successor or other persons whose services may be necessary or advisable in the judgment of the Active Trustee, to advise or assist the Active Trustee in the discharge of its duties as Active Trustee, or otherwise in the exercise of any powers vested in the Active Trustee, and to pay from the MCC Settlement Trust Assets reasonable compensation to such attorneys, accountants, appraisers, property managers, disbursing agents, brokers, realtors, expert witnesses, insurance adjusters or any successor, or other persons (including, when necessary or appropriate, contingent fee or commission based arrangements);
(f) to collect and receive any accounts receivable, income, proceeds of sale, and distributions derived from or relating to the MCC Settlement Trust Assets and to distribute the same to the Qualified Claimants, or to the Claims Reviewer or the Secondary Claims Reviewer, as the case may be, for the account of the Qualified Claimants, in accordance with the terms of the Master Settlement Agreement and this MCC Settlement Trust Agreement;
(g) to pay from the MCC Settlement Trust Assets any and all necessary expenses attributable or relating to the management, maintenance, administration, preservation or liquidation of the MCC Settlement Trust Assets; and
(h) to xxx or be sued in connection with any matter arising from or related to the Master Settlement Agreement or this MCC Settlement Trust Agreement that affects in any way the rights or obligations of the MCC Settlement Trust, the Active Trustee or the Qualified Claimants.
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trust created pursuant to the MCC Plan of Reorganization (the “524(g) Trust”) periodic reports relating to the balance of the MCC Settlement Trust Assets, the amount of outstanding payment obligations owing to Qualified Claimants and the Administrative Expenses of the MCC Settlement Trust, as the Claimants Representative Committee, the FCR, the 524(g) Trust or MCC shall reasonably request. The Active Trustee shall provide MCC information and documentation as it may reasonably need to enable MCC to xxxx and/or collect insurance proceeds. MCC, the FCR, the 524(g) Trust or the Claimants Representative Committee on behalf of the Qualified Claimants shall have the right to conduct a financial audit of the MCC Settlement Trust; provided, however, that neither MCC, the FCR, the 524(g) Trust nor the Claimants Representative Committee shall be entitled to conduct a financial audit prior to ninety (90) days after the Effective Date or more often than annually. The Active Trustee shall prepare, file and mail, or cause to be prepared, filed and mailed any reports, forms or other information or documents that may have to be filed with the Securities and Exchange Commission or any other governmental unit or agency thereof that may be necessary or appropriate. The Active Trustee shall prepare and distribute, or cause to be prepared and distributed any other reports or other information the Active Trustee determines is necessary or appropriate. The right of the Qualified Claimants to receive reports and other information as set forth in this MCC Settlement Trust Agreement is in lieu of the right to access information under Section 3819 of the Delaware Act.
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the payment of such statement or invoices, upon the Notice Parties, and in the manner set out therein. The Delaware Trustee shall serve copies of statements and invoices for fees and expenses of the Delaware Trustee and of [Morris, Nichols, Arsht & Xxxxxxx] prior to the payment of such statement or invoices, upon the Notice Parties, and in the manner set out therein. Such statements or invoices may be paid by the Active Trustee from MCC Settlement Trust Assets unless, within ten (10) business days after such service, any of the Notice Parties serves upon the Active Trustee and the other Notice Parties its objection to payment of all or part of such statement or invoice.
(b) Compensation and Expenses of the Active Trustee. The Active Trustee shall receive compensation from the MCC Settlement Trust for his service as Active Trustee at his usual hourly rate in the amount of $500.00 per hour devoted to Trust business. The rates detailed above may be modified with the prior written consent of the Claimants Representative Committee and MCC. The MCC Settlement Trust shall reimburse the Active Trustee as a part of the Administrative Expenses for all reasonable out-of-pocket costs and expenses incurred by the Active Trustee in connection with the performance of his duties hereunder, at the rates detailed above.
(c) Compensation and Expenses of the Delaware Trustee. The Delaware Trustee shall receive compensation from the MCC Settlement Trust for their services as Delaware Trustee at the rates detailed in the fee agreement attached hereto as Exhibit 4. The rates detailed in Exhibit 4 may be modified with the prior written consent of the Claimants Representative Committee and MCC. The MCC Settlement Trust shall reimburse the Delaware Trustee as a part of the Administrative Expenses for all reasonable out-of-pocket costs and expenses incurred by the Delaware Trustee in connection with the performance of their duties hereunder, at the rates detailed in Exhibit 4.
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Members, and (iv) the expenses of operating and administering the MCC Settlement Trust. The Active Trustee shall, from time to time, set aside from the MCC Settlement Trust Assets such amounts so determined to be sufficient to pay the Administrative Expenses (the “Administrative Expense Reserve”) and shall not use the Administrative Expense Reserve for any other purpose, except as otherwise required by this MCC Settlement Trust Agreement. Compensation and reimbursement of the Claims Reviewer and the Secondary Claims Reviewer shall be paid by MCC, at no cost to the MCC Settlement Trust, in accordance with Section 4.7(d) herein. To the extent that the amount of funds in the Administrative Expense Reserve is at any time insufficient, the Active Trustee shall pay from the MCC Settlement Trust Assets all expenses, charges, liabilities and obligations of the MCC Settlement Trust, including such debts, liabilities, or obligations as may be payable from the MCC Settlement Trust Assets, interest, taxes, assessments, and public charges of every kind and nature, and the costs, charges and expenses in connection with or arising out of the execution or administration of the MCC Settlement Trust and the MCC Settlement Trust Assets, and such other payments and disbursements as are provided for in the Master Settlement Agreement or this MCC Settlement Trust Agreement or which may be necessary or appropriate charges against the MCC Settlement Trust and the MCC Settlement Trust Assets, and the Active Trustee, in its judgment, may, from time to time, make provision by reserve or otherwise, out of the MCC Settlement Trust Assets, for such amount or amounts as the Active Trustee in its judgment may determine to be necessary or appropriate to meet or satisfy unascertained, unliquidated or contingent liabilities of the MCC Settlement Trust, the Active Trustee or the Delaware Trustee.
ARTICLE V
CLAIMANTS REPRESENTATIVE COMMITTEE
5.1 Claimants Representative Committee. There shall be a Claimants Representative Committee, which shall have at least three (3) but no more than seven (7) members (individually, a “Claimants Representative Committee Member” or collectively, the “Claimants Representative Committee”). The initial Claimants Representative Committee Members, and their contact information, are set forth on Exhibit 7 attached hereto. Upon execution of this MCC Settlement Trust Agreement, the Claimants Representative Committee Member may appoint up to two (2) additional Claimants Representative Committee Members who shall also be members of the Claimants Representative Committee. Each additional or replacement Claimants Representative Committee Member shall execute and deliver a counterpart of this MCC Settlement Trust Agreement upon acceptance of such appointment. The resignation, removal, incapacity or death of any or all of the Claimants Representative Committee Members, governed by Section 5.4 below, shall not operate to dissolve or terminate the MCC Settlement Trust.
5.2 Claimants Representative Committee Member as Asbestos Claimants or Law Firm Representative. The Claimants Representative Committee Members may be (i) Asbestos
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Claimants so long as they qualify as Qualified Claimants under Section 3.1 of this MCC Settlement Trust Agreement, or (ii) Law Firm Representative.
5.3 Actions by Majority Vote. Unless otherwise specified herein, any action required or permitted to be taken by the Claimants Representative Committee pursuant to this MCC Settlement Trust Agreement shall be taken by the affirmative vote at a meeting or by written consent of not less than a majority of the Claimants Representative Committee. If the Claimants Representative Committee is deadlocked on any vote, the Active Trustee shall cast the tie breaking vote and such determination shall be final. The Claimants Representative Committee shall meet at such times and places as the Claimants Representative Committee deems necessary or appropriate. The Claimants Representative Committee may delegate any of their powers or duties to an individual Claimants Representative Committee Member or a subcommittee of the Claimants Representative Committee, as the Claimants Representative Committee deems necessary or appropriate. In carrying out any of the powers or duties delegated to them, such officers, employees, professionals, agents and representatives shall be entitled to the same rights, claims and protections as the Claimants Representative Committee would have had with respect thereto.
5.4 Resignation and Removal of Claimants Representative Committee Members.
(a) Resignation. A Claimants Representative Committee Member may resign and be discharged from any future obligations and liabilities hereunder by giving written notice thereof to the other Claimants Representative Committee Members and the Active Trustee at least forty-five (45) days prior to the date of resignation set forth in the notice of resignation.
(b) Removal. If the Claimants Representative Committee consists of three members, a Claimants Representative Committee Member may be removed with or without cause at any time by the affirmative unanimous vote of both of the other Claimants Representative Committee Members. If there are fewer than three members of the Claimants Representative Committee, a Claimants Representative Committee Member may be removed only by order of the court having jurisdiction over the MCC Settlement Trust. Upon any such removal, such removed Claimants Representative Committee Member shall be entitled to any reimbursement and indemnification set forth in this MCC Settlement Trust Agreement which remain due and owing to such Claimants Representative Committee Member at the time of such removal. Such removal shall be effective when a successor Claimants Representative Committee Member has been duly appointed pursuant to this Section 5.4(c).
(c) Appointment of Successor Claimants Representative Committee Member. If a vacancy in the Claimants Representative Committee occurs whether by death or pursuant to Sections 5.4(a) or 5.4(b) above, the remaining Claimants Representative Committee Members shall promptly select a successor and notify the Active Trustee in writing. If for any reason there are no remaining Claimants Representative Committee Members to select successors, three (3) successor Claimants Representative Committee Members shall be selected by the Active Trustee from among the Law Firm Representatives or Qualified Claimants who meet the requirements set forth in Section 5.2 above.
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ARTICLE VI
THE TRUSTEES, CLAIMANTS REPRESENTATIVE COMMITTEE, THE CLAIMS REVIEWER AND THE SECONDARY CLAIMS REVIEWER GENERALLY
6.1 Agreement of Parties to Serve in Their Respective Capacities. The Active Trustee, the Delaware Trustee, each of the Claimants Representative Committee, the Claimants Representative Committee Members, the Claims Reviewer and the Secondary Claims Reviewer agree to act as the Active Trustee, the Delaware Trustee, the Claimants Representative Committee, the Claimants Representative Committee Members, the Claims Reviewer and the Secondary Claims Reviewer respectively, of the MCC Settlement Trust pursuant to the terms of the Master Settlement Agreement and this MCC Settlement Trust Agreement. The Active Trustee, the Delaware Trustee, each of the Claimants Representative Committee, the Claimants Representative Committee Members, the Claims Reviewer and the Secondary Claims Reviewer shall have and shall exercise the rights and powers granted in this MCC Settlement Trust Agreement and the Master Settlement Agreement and shall be charged solely with the performance of the duties declared in this MCC Settlement Trust Agreement and the Master Settlement Agreement on the part of the Active Trustee, the Delaware Trustee, the Claimants Representative Committee, the Claimants Representative Committee Members, the Claims Reviewer and the Secondary Claims Reviewer respectively. The Active Trustee also agrees to receive and disburse all funds actually received by the Active Trustee constituting part of the MCC Settlement Trust Assets pursuant to the terms of the Master Settlement Agreement and this MCC Settlement Trust Agreement.
6.2 No Implied Duties. The Active Trustee, the Delaware Trustee, the Claimants Representative Committee, the Claimants Representative Committee Members, the Claims Reviewer and the Secondary Claims Reviewer shall not manage, control, use, sell, dispose, collect or otherwise deal with the MCC Settlement Trust Assets or otherwise take any action hereunder except as expressly provided in this MCC Settlement Trust Agreement and the Master Settlement Agreement, and no implied duties or obligations at law, in equity or otherwise, whatsoever of the Active Trustee, the Delaware Trustee, the Claimants Representative Committee, the Claimants Representative Committee Members, the Claims Reviewer and the Secondary Claims Reviewer shall be read into this MCC Settlement Trust Agreement or the Master Settlement Agreement. Except as otherwise expressly provided in this MCC Settlement Trust Agreement, the Active Trustee, the Delaware Trustee, the Claimants Representative Committee, the Claimants Representative Committee Members, the Claims Reviewer and the Secondary Claims Reviewer shall have no duties or obligations under any law, including without limitation, laws or statutes otherwise applicable to trustees or trusts in equity or otherwise.
6.3 Liabilities of MCC Settlement Trust. The MCC Settlement Trust, the Active Trustee, the Delaware Trustee, the Claimants Representative Committee, the Claimants Representative Committee Members, the Claims Reviewer and the Secondary Claims Reviewer shall have no liabilities whatsoever except (a) in accordance with this MCC Settlement Trust Agreement and the Master Settlement Agreement and (b) the obligation to pay and reimburse the Trustees, the Claimants Representative Committee, the Claimants Representative Committee Members, the Claims Reviewer and the Secondary Claims Reviewer and the officers, employees, professionals,
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agents and representatives of the MCC Settlement Trust in accordance with this MCC Settlement Trust Agreement.
6.4 No Recourse Against the Trustees, the Claimants Representative Committee, the Claimants Representative Committee Members, the Claims Reviewer or the Secondary Claims Reviewer. No recourse shall ever be had, directly or indirectly, against the Active Trustee, the Delaware Trustee, the Claimants Representative Committee, any Claimants Representative Committee Member, the Claims Reviewer and the Secondary Claims Reviewer or any of the officers, employees, professionals, agents or representatives of the MCC Settlement Trust, whether by legal, equitable or other proceedings, by virtue of any law, statute, regulation or otherwise, or by virtue of any indebtedness of MCC or the MCC Settlement Trust, it being expressly understood and agreed that all liabilities of the MCC Settlement Trust shall be enforceable only against and be satisfied only out of the MCC Settlement Trust Assets or shall be evidence only of a right to payment out of the MCC Settlement Trust Assets, as the case may be.
6.5 Limitation on Liability. No provision of the Master Settlement Agreement or this MCC Settlement Trust Agreement shall be construed to impose any liability upon the Trustees, the Claimants Representative Committee, the Claimants Representative Committee Members, the Claims Reviewer, the Secondary Claims Reviewer or the officers, employees, professionals, agents or representatives of the Trustees or the MCC Settlement Trust unless it shall be proven that the actions or omissions of such persons or entity constituted willful misconduct in the exercise of, or failure to exercise, any right or power under the Master Settlement Agreement or this MCC Settlement Trust Agreement; provided that notwithstanding anything herein or in the Master Settlement Agreement to the contrary, in no event shall any of the Active Trustee, the Delaware Trustee, the Claimants Representative Committee, the Claimants Representative Committee Members, the Claims Reviewer or the Secondary Claims Reviewer be liable for the acts, omissions or other conduct, whether negligent or willful, of any of each other.
6.6 Reliance on Certificates or Opinions. In the absence of willful misconduct on the part of the Active Trustee, the Delaware Trustee, the Claimants Representative Committee, any Claimants Representative Committee Member, the Claims Reviewer and the Secondary Claims Reviewer, each of the Active Trustee, the Delaware Trustee, the Claimants Representative Committee, each Claimants Representative Committee Member, the Claims Reviewer and the Secondary Claims Reviewer respectively may conclusively rely, as to the truth of the statements and correctness of the opinions expressed therein, upon any certificates or opinions conforming to the requirements of the Master Settlement Agreement or this MCC Settlement Trust Agreement furnished to one of them by another of them.
6.7 Discretion of the Active Trustee, the Claimants Representative Committee, the Claimants Representative Committee Members, the Claims Reviewer and the Secondary Claims Reviewer. Except as otherwise expressly provided in the Master Settlement Agreement or this MCC Settlement Trust Agreement, the Active Trustee, the Delaware Trustee, the Claimants Representative Committee, the Claimants Representative Committee Members, the Claims Reviewer and the Secondary Claims Reviewer, within the limitations and restrictions expressed and imposed in the Master Settlement Agreement and this MCC Settlement Trust Agreement, may act freely under all or any of the rights, powers and authority conferred in the Master Settlement Agreement or this MCC Settlement Trust Agreement in all matters concerning the
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XXX Xxxxxxxxxx Trust and the MCC Settlement Trust Assets, after forming their respective business judgment based upon the circumstances of any particular question or situation as to the course to pursue, without the necessity of obtaining the consent or permission or authorization of the Qualified Claimants, MCC or of any official or officer; and the rights, powers and authority conferred on the Active Trustee, the Delaware Trustee, the Claimants Representative Committee, the Claimants Representative Committee Members, the Claims Reviewer and the Secondary Claims Reviewer by the Master Settlement Agreement and this MCC Settlement Trust Agreement are conferred in contemplation of such freedom of business judgment and action within the limitations and restrictions so expressed and imposed; provided, however, that the Active Trustee, the Delaware Trustee, the Claimants Representative Committee, the Claimants Representative Committee Members, the Claims Reviewer and the Secondary Claims Reviewer shall not be liable for any error of judgment, unless it shall be proved that the Active Trustee, the Delaware Trustee, the Claimants Representative Committee, the Claimants Representative Committee Members, the Claims Reviewer or the Secondary Claims Reviewer, as the case may be, acted in a manner which constituted willful misconduct.
6.8 Genuineness of Documents. The Active Trustee, the Delaware Trustee, the Claimants Representative Committee, the Claimants Representative Committee Members, the Claims Reviewer and the Secondary Claims Reviewer and the officers, employees, professionals, agents and representatives of the Active Trustee, the Delaware Trustee, the Claimants Representative Committee, the Claimants Representative Committee Members, the Claims Reviewer and the Secondary Claims Reviewer and/or the MCC Settlement Trust may rely and shall be protected in acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, objection, order, judgment, decree, or other paper or document reasonably believed by them to be genuine and to have been signed, made, entered or presented by the proper party, parties, official, officials, entity or entities.
6.9 Retention of Professionals. The Active Trustee may consult with legal counsel and with independent public accountants and other professionals or experts. The Active Trustee shall not be liable for any action taken or suffered by him or omitted to be taken by him without willful misconduct in reliance on any opinion or certification of such accountants or in accordance with the advice of such counsel or other professionals or experts, provided that such accountants, counsel and experts were selected and retained in accordance with the Master Settlement Agreement and this MCC Settlement Trust Agreement.
6.10 Reliance on the Active Trustee or the Claimants Representative Committee. No entity dealing with the Active Trustee or the Claimants Representative Committee, or any Claimants Representative Committee Members, or the officers, employees, professionals, agents or representatives of the MCC Settlement Trust shall be obligated to see to the application of any funds, securities, or other property paid or delivered to any of them or the MCC Settlement Trust or to inquire into the expediency or propriety of any transaction or the right, power or authority of the Active Trustee, the Claimants Representative Committee, or any Claimants Representative Committee Members to enter into or consummate any transaction upon such terms as the Active Trustee, the Claimants Representative Committee, or any Claimants Representative Committee Members deem necessary or appropriate. Entities dealing with the Active Trustee, the Claimants Representative Committee, or any Claimants Representative Committee Members, and the officers, employees, professionals, agents or representatives of the MCC Settlement Trust shall
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look only to the MCC Settlement Trust Assets to satisfy any liability incurred by any of them to such entities in carrying out the terms of the Master Settlement Agreement and this MCC Settlement Trust Agreement, and, except as otherwise expressly provided herein, the Active Trustee, the Claimants Representative Committee, each Claimants Representative Committee Member, and the officers, employees, professionals, agents or representatives of the Active Trustee or the MCC Settlement Trust shall have no personal, individual or corporate obligation to satisfy any such liability.
6.11 Indemnification of Trustees and Agents. The MCC Settlement Trust shall indemnify and hold harmless to the full extent of the MCC Settlement Trust Assets any individual or entity who or which is in his or its business judgment required to prosecute or defend any threatened, pending, or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative, whether in a bankruptcy case, proceeding or otherwise, through participation in such bankruptcy case, proceeding or otherwise (including attendance, or having counsel attend, participate in, or monitor any hearing, discovery or other process) or by reason of the fact that such individual or entity is or was a Trustee or the Claimants Representative Committee, a Claimants Representative Committee Member or the Claims Reviewer or the Secondary Claims Reviewer or an officer, employee, professional, agent or representative of a Trustee or the Claimants Representative Committee, any Claimants Representative Committee Member, the Claims Reviewer, the Secondary Claims Reviewer, the MCC Settlement Trust, including, without limitation, any challenge to the structure of the MCC Settlement Trust or any payments made or to be made thereunder from and against any and all expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such entity in connection with such action, suit or proceeding, including appeals thereof, if such individual or entity acting without willful misconduct in the exercise and performance of any power or duties of such entity in accordance with the Master Settlement Agreement and this MCC Settlement Trust Agreement.
6.12 Payment of Expenses. Expenses (including attorneys’ fees) incurred in defending any action, suit or proceeding referred to above may be paid by the MCC Settlement Trust in advance of the final disposition of such action, suit or proceeding, upon an undertaking by the appropriate Trustee, a Claimants Representative Committee Member, the Claims Reviewer, the Secondary Claims Reviewer, officer, employee, professional, agent or representative of the MCC Settlement Trust to repay such amount if it shall ultimately be determined that such entity is not entitled to be indemnified.
6.13 Release of the Claimants Representative Committee and the Claimants Representative Committee Members. Each of the MCC Entities and the MCC Settlement Trust hereby release the Claimants Representative Committee and each Claimants Representative Committee Member from any and all activities in connection with negotiation, execution and delivery, but not enforcement, of this MCC Settlement Trust Agreement and the Master Settlement Agreement.
6.14 Release of the MCC Entities and the MCC Settlement Trust. The Claimants Representative Committee and each Claimants Representative Committee Member hereby release the MCC Entities and the MCC Settlement Trust from any and all activities in connection
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with the negotiation, execution and delivery, but not enforcement, of this MCC Settlement Trust Agreement and the Master Settlement Agreement.
ARTICLE VII
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ARTICLE VIII
(a) the determination by the Active Trustee, MCC and the Claimants Representative Committee that there has been performance and completion of all obligations and duties of the MCC Settlement Trust and the Active Trustee under the Master Settlement Agreement and this MCC Settlement Trust Agreement, including, without limitation, the payment in full of all the Qualified Claimants’ Settlement Amounts payable by the MCC Settlement Trust as set forth in the Master Settlement Agreement and this MCC Settlement Trust Agreement;
(b) the distribution of all of the MCC Settlement Trust Assets to the Qualified Claimants as set forth in the Master Settlement Agreement and this MCC Settlement Trust Agreement;
(c) the transfer of the MCC Settlement Trust Assets to a successor trust as provided in a confirmed MCC Plan of Reorganization or other order of a court of competent jurisdiction that provides for a successor trust, preserves the rights of the beneficiaries hereunder and provides for the transfer of the MCC Settlement Trust Assets to such successor trust; and
(d) the twenty-first (21) year anniversary from the Effective Date of this MCC Settlement Trust Agreement.
8.2 Winding Up of the MCC Settlement Trust.
(a) Upon the dissolution of the MCC Settlement Trust pursuant to Section 8.1(a)-(d) above, the Active Trustee, after satisfaction of all liabilities to creditors of the MCC Settlement Trust, shall distribute any remaining MCC Settlement Trust Assets to a trust, pursuant to a confirmed MCC Plan of Reorganization, or as a court of competent jurisdiction may otherwise direct. If no MCC Plan of Reorganization is confirmed and no court otherwise directs payment within twenty-one (21) years from the Effective Date of this MCC Settlement Trust
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Agreement, the Active Trustee shall (i) distribute all remaining MCC Settlement Trust Assets to a charity selected by the Claimants Representative Committee that is qualified under Section 501(c)(3) of the Internal Revenue Code or 1986, as amended; and (ii) promptly take all necessary action to release all liens or other security interests filed with respect to the MCC Trust Assets, including, without limitation, the filing of UCC-3 termination statements.
(b) Upon completion of the winding up of the MCC Settlement Trust’s affairs pursuant to Section 8.1(a) above, a Certificate of Cancellation shall be filed with the Office of the Secretary of State of the State of Delaware, which Certificate of Cancellation shall be executed by the Active Trustee.
ARTICLE IX
9.2 Irrevocability. Upon the Effective Date, the MCC Settlement Trust shall be irrevocable by MCC.
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deposited, postage prepaid, in the United States Mail, and sent via registered or certified mail; (ii) if delivered by express courier, one (1) business day after being delivered to such courier; or (iii) if delivered in person or via facsimile subject to written confirmation of transmission, the same day as the delivery, provided that notices issued to the MCC Settlement Trust shall be deemed received on the date actually received by the MCC Settlement Trust. Notice to the Claimants Representative Committee shall be deemed notice to each and every beneficiary of the MCC Settlement Trust, and the Claimants Representative Committee shall provide actual notice to the beneficiaries in accordance with Section 4.1(b) of the Master Settlement Agreement. Notices shall be addressed as follows:
| If to MCC: | With a copy, which shall not constitute notice, to: | |
| MCC Holdings, Inc. 000 Xxxxx Xxxxxxxx Xxxxx Xxxxxxxx, Xxxxxxxxxxx 00000 Facsimile No.: (000) 000-0000 Attention: Secretary | Xxxxxx, Xxxx & Xxxxxxxx LLP 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Facsimile No.: (000) 000-0000 Attention: Xxxxxxx X. Xxxxx | |
| If to the Active Trustee: | With a copy, which shall not constitute notice, to: | |
| Xxxx X. Xxxxxxx Xxxxxxx & Associates, P.C. 000 Xxxxx Xxxxxx, Xxxxx Xxxxx Xxxxxxxxxx, Xxxxxxxxxxxx 00000 Facsimile No.: (000) 000-0000 | Xxxxxxxx & Xxxxxx, LLC 0000 Xxxxx Xxxxxxxx Xxxxxxxxxx, Xxxxxxxxxxxx 00000 Facsimile No.: (000) 000-0000 Attention: Xxxxxx X. Xxxxx | |
| If to the Claimants Representative Committee: | With a copy, which shall not constitute notice, to: | |
| Xxxxx & Xxxxxxxxx, P.C. 000 Xxxxxx Xxxx Xxx Xxxx, Xxx Xxxx 00000 Facsimile No.: (000) 000-0000 Attention: Xxxxx Xxxxx AND Xxxxxx & Xxxxxx 000 X XxXxxxx Xx., # 0000 Xxxxxxx, Xxxxxxxx 00000 Facsimile No.: (000) 000-0000 Attention: Xxxx X. Xxxxxx | Stutzman, Bromberg, Esserman & Xxxxxx 0000 Xxxxx Xxxxxx, Xxxxx 0000 Xxxxxx, Xxxxx 00000 Facsimile No.: (000) 000-0000 Attention: Sander X. Xxxxxxxx |
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| If to the Delaware Trustee: | With a copy, which shall not constitute notice, to: | |
| Wilmington Trust Company Xxxxxx Square North 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxxxx, Xxxxxxxx 00000 Facsimile No.: (000) 000-0000 Attention: Xxxxxx X. Xxxxxx | _________________________ _________________________ _________________________ Facsimile No.: (___) _______________ Attention: ________________________ |
Any Party may change the address to which notices, requests, demands, claims, and other communications hereunder are to be delivered by giving the other Parties notice in the manner herein set forth. Counsel to any Party may give notices, requests, demands, claims and other communications hereunder on behalf of such Party.
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* * * * *
(signature pages follow)
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| MCC HOLDINGS, INC. | CLAIMANTS REPRESENTATIVE COMMITTEE | |||||||
| By: | /s/ Xxxxxxxx X. xxXxxx | MOTLEY RICE LCC | ||||||
| Name: | Xxxxxxxx X. xxXxxx | |||||||
| Title: | Vice President | /s/ Xxxxxx Xxxx | ||||||
| Date: October 21, 2004 | By: | Xxxxxx Xxxx | ||||||
| Title: | Managing Member | |||||||
| Date: | 00-00-00 | |||||||
| XXXXX & XXXX, X.X. | ||||||||
| /x/ Xxxxxxx X. Xxxx | ||||||||
| By: | Xxxxxxx X. Xxxx | |||||||
| Title: | President | |||||||
| Date: | 10-21-04 | |||||||
| XXXXXXX & XXXXXXX LAW FIRM, L.L.P. | ||||||||
| /s/ Xxxxx X. Xxxxxxx, Xx. | ||||||||
| By: | Xxxxx X. Xxxxxxx, Xx. | |||||||
| Title: | Partner | |||||||
| Date: | 10-21-04 | |||||||
| KAZAN, MCCLAIN, ABRAMS, FERNANDEZ, XXXXX & FARRISE, A PROFESSIONAL LAW CORPORATION | ||||||||
| /s/ Xxxxxx Xxxxx | ||||||||
| By: | Xxxxxx Xxxxx | |||||||
| Title: | Managing Partner | |||||||
| Date: | 10-21-04 | |||||||
| XXXXXX & XXXXXX | ||||||||
|
/s/ Xxxx Xxxxxx | ||||||||
| By: | Xxxx Xxxxxx | |||||||
| Title: | Partner | |||||||
| Date: | 10-21-04 |
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| XXXXX & XXXXXXXXX, P.C. | ||||||||
|
/s/ Xxxxx Xxxxx | ||||||||
| By: | Xxxxx Xxxxx | |||||||
| Title: | ||||||||
| Date: | 10-21-04 | |||||||
| WATERS & XXXXX, LLP | ||||||||
|
/s/ Xxxxx X. Xxxxx | ||||||||
| By: | Xxxxx X. Xxxxx | |||||||
| Title: | Managing Partner | |||||||
| Date: | 10-21-04 | |||||||
| XXXXXX XXXXXXXX LLP | ||||||||
|
/s/ Xxxxxx X. Xxxxx | ||||||||
| By: | Xxxxxx X. Xxxxx | |||||||
| Title: | Partner | |||||||
| Date: | 10-21-04 | |||||||
| XXXXXXX & FROCKT | ||||||||
|
/s/ Xxxxxxx Xxxxxxx | ||||||||
| By: | Xxxxxxx Xxxxxxx | |||||||
| Title: | President | |||||||
| Date: | 10-21-04 | |||||||
| XXXX X. XXXXXXX as Active Trustee | WILMINGTON TRUST COMPANY as Delaware Trustee | |||||||
| /s/ Xxxx X. Xxxxxxx | ||||||||
| Xxxx X. Xxxxxxx | By: | /s/ Xxxxxx X. Xxxx | ||||||
| Name: | Xxxxxx X. Xxxx | |||||||
| Date: | 10-21-04 | Title: | Assistant Vice President | |||||
| Date: | 10-21-04 |
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SCHEDULE 1
SCHEDULE OF EXHIBITS
| Exhibit 1 | - | Master Settlement Agreement | ||
| Exhibit 2 | - | Qualified Claimants | ||
| Exhibit 3 | - | Investment Guidelines | ||
| Exhibit 4 | - | Delaware Trustee Fee Agreement | ||
| Exhibit 5 | - | Certificate of Trust | ||
| Exhibit 6 | - | Custody Agreement | ||
| Exhibit 7 | - | Claimants Representative Committee | ||
| Exhibit 8 | - | Form of Crane Note | ||
| Exhibit 9 | - | Form of MCC Assignment |
Schedule 1
EXHIBIT 1
MASTER SETTLEMENT AGREEMENT
[Separately filed]
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EXHIBIT 2
QUALIFIED CLAIMANTS
[To be attached]
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EXHIBIT 3
INVESTMENT GUIDELINES
| I. | United States-Direct Obligations (e.g., Treasury Bills, Notes and Bonds). Any United States direct obligation that has a maturity of not more than 2 years from the date of purchase. |
| II. | Government Agencies and Instrumentalities-Direct or Indirect Obligations (e.g., notes issued by the Federal Home Loan Bank and Federal National Mortgage Association). Any government agency or instrumentality direct or indirect obligation that has a maturity of not more than 2 years from the date of purchase. |
| III. | Commercial Paper. Any commercial paper note of a foreign or domestic corporation that has a maturity of not more than six months and that is rated no lower than A-1 by S&P or P-1 by Moody’s. |
| IV. | Medium Term Notes. Any promissory note of a domestic corporation that has a maturity of not more than 2 years from the date of purchase and that is rated not lower than A by S&P or Moody’s. |
| VI. | Municipal Securities. Any issue that includes direct or indirect obligations of any state, county, city or other qualifying entity. A short-term issue may be rated no lower than MIG 1 or SP-1; a long-term issue may be rated no lower than A by S&P or Moody’s. Issues must have a maturity or redemption option of not more than 2 years from the date of purchase. |
| VII. | Money Market Fund. Any money market fund that has minimum net assets of $500 million and an average portfolio maturity of not more than 180 days. |
| VIII. | Other (e.g., U.S. dollar asset-backed securities, private placements, U.S. dollar obligations of foreign governments, supra-national organizations, and domestic and foreign corporations). Any other investment that has a maturity of not less than 1 year from the date of purchase and that is rated no lower than A by Moody’s or S&P. |
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EXHIBIT 4
DELAWARE TRUSTEE FEE AGREEMENT
[To be attached]
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EXHIBIT 5
CERTIFICATE OF TRUST
[To be attached]
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EXHIBIT 6
CUSTODY AGREEMENT
[To be attached]
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EXHIBIT 7
CLAIMANTS REPRESENTATIVE COMMITTEE
Motley Rice LLC
Baron & Xxxx, P.C.
Xxxxxxx & Xxxxxxx Law Firm, L.L.P.
Kazan, McClain, Abrams, Fernandez, Xxxxx & Farrise, A Professional Law Corporation
Xxxxxx & Xxxxxx
Xxxxx & Xxxxxxxxx, P.C.
Waters & Xxxxx, LLP
Xxxxxx Xxxxxxxx LLP
Xxxxxxx & Frockt
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EXHIBIT 8
FORM OF CRANE NOTE
CRANE CO.
DEMAND NOTE
| $270,000,000.00 | October 21, 2004 |
FOR VALUE RECEIVED, CRANE CO., a Delaware corporation (“Crane”), hereby unconditionally promises to pay, ON DEMAND, to the order of MCC Holdings, Inc. (“MCC”), f/k/a Xxxx Controls Corporation, a Delaware corporation and wholly-owned subsidiary of Crane, or its assignee (the “Holder”), at such place designated in writing at any time by the Holder hereof, the principal sum of Two Hundred and Seventy Million Dollars ($270,000,000.00), together with interest thereon at the rate of 1.77% per annum from the date hereof until paid in full, in lawful money of the United States. This note is a full recourse note and is being issued pursuant to, and subject to the terms of, that certain settlement agreement (the “Master Settlement Agreement”) relating to the settlement of certain asbestos claims against MCC and that certain settlement trust agreement (the “Settlement Trust Agreement”) relating to the administration and payment of claims settled pursuant to the Master Settlement Agreement. Notwithstanding anything in herein to the contrary, the Holder’s right to make demand on amounts owing under this Note shall not be effective until February 23, 2005. Thereafter, the aggregate principal amount outstanding, together with all interest incurred thereon and all other fees and costs, shall be due and payable ON DEMAND and Crane agrees that the Holder may make demand, at any time and from time to time, in the exercise of the Holder’s sole discretion. The Holder’s right to make demand is a continuing right, and acceptance by the Holder of any payment after demand shall not be deemed a waiver of such right to make demand on any other occasion. In case any payment herein provided for shall not be paid when due, Crane promises to pay all costs of collection or enforcement of this Note, including, without limitation, court costs and all reasonable attorney’s fees and expenses incurred or paid by the Holder in enforcing Crane’s obligations hereunder. Amounts owing under this Note may be prepaid, in whole or in part, without the Holder’s prior written consent, at any time.
This Note may not be assigned by Crane without the consent of the Holder and may not be assigned by the Holder without Crane’s consent; provided, however, that nothing herein shall prohibit (1) the assignment of this Note by MCC to the MCC Settlement Trust (as defined in the Settlement Trust Agreement), or the assignment of this Note by the MCC Settlement Trust to MCC, in each case in accordance with the terms of the Settlement Trust Agreement, or (2) the assignment of this Note by MCC or the MCC Settlement Trust to a trust formed pursuant to Section 524(g) of the U.S. Bankruptcy Code (the “Code”) in connection with MCC’s proposed filing of a plan of reorganization under Chapter 11 of the Code, or any trust that is a successor thereto. The remedies of Holder as provided herein shall be cumulative and concurrent with all other remedies provided by law or in equity and may be pursued singly, successively or together at the sole direction of the Holder and may be exercised as often as occasion therefor shall arise. Any waiver or release hereunder shall only be effective as set forth in a written document executed by Holder and then
______
Initials
8-1
only to the extent specifically recited therein. A waiver or release with reference to one event shall not be construed as continuing as a bar to or as a waiver or release of any subsequent right, remedy or recourse as to any subsequent event. Crane hereby waives presentment for payment, notice of nonpayment, protest, notice of protest and all other notices, filing of suit and diligence in collecting the amounts due under this Note and agrees that the Holder shall not be required first to initiate any suit or exhaust its remedies against any other person or parties in order to enforce payment of this Note. This Note shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to conflicts of laws principles. This Note shall be binding on the successors and assigns of Crane. If any terms or provisions of this Note are deemed invalid, the validity of all other terms and provisions hereof shall in no way be affected thereby. This Note may not be changed orally, but only by an agreement in writing and signed by the party against whom enforcement of any waiver, change, modification or discharge is sought.
[Signature on following page]
______
Initials
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IN WITNESS WHEREOF, Crane has executed this Note as of the date written above.
| CRANE CO. | ||
| By: | ||
| Xxxx X. Fast President and Chief Executive Officer |
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EXHIBIT 9
FORM OF MCC ASSIGNMENT
ASSIGNMENT OF NOTE
FOR VALUE RECEIVED, the undersigned, the original or successor holder under that certain demand note to which this Assignment is affixed (the “Note”), absolutely assigns, transfers, endorses, negotiates, and sets over to and makes payable to the order of the MCC Settlement Trust (as defined below), as assignee, without recourse representation or warranty of any kind, the Note, all principal, interest and other sums due or to become due under the Note, and all other rights of any nature accrued or to accrue under the Note. The “MCC Settlement Trust” means that certain settlement trust established pursuant to that certain MCC Settlement Trust Agreement dated the date hereof by and among MCC Holdings, Inc., f/k/a Xxxx Controls Corporation, a Delaware corporation, the Trustees (as defined therein) and the Claimants Representative Committee (as defined therein). Notwithstanding the foregoing, the undersigned hereby represents that the undersigned is the lawful holder of the Note, which Note has an outstanding principal balance of $270,000,000.00 and is not subject to any liens, charges or encumbrances.
Dated: As of October 21, 2004.
| MCC HOLDINGS, INC., f/k/a XXXX CONTROLS CORPORATION | ||
| By: | ||
| Name: Xxxxxxxx X. xxXxxx | ||
| Title: Vice President and Secretary |
Crane Co. consents to the foregoing Assignment of Note and confirms that the Note has an outstanding principal balance of $270,000,000.00, that it has not previously prepaid the Note in whole or in part and that it has not consented to any prior assignment of the Note.
| CRANE CO. | ||
| By: | ||
| Name: Xxxx X. Fast | ||
| Title: President and Chief Executive Officer |
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