Exhibit 99.7
THE NEW MOUNTAIN XXXXXXX TRUST
THIS AGREEMENT is made and delivered as of the 23rd day of December,
2003, between NEW MOUNTAIN PARTNERS, L.P., a Delaware Limited Partnership
(hereinafter referred to as the "Settlor"), and BANK OF AMERICA, N.A.
(hereinafter and its successors collectively referred to as the "Trustee"),
creating the "New Mountain Xxxxxxx Trust."
W I T N E S S E T H:
The Settlor hereby irrevocably assigns, transfers and conveys to the
Trustee the property listed on Schedule A, receipt of which is hereby
acknowledged by the Trustee. The property from time to time held by the Trustee
is hereinafter sometimes referred to as the "trust fund." The Trustee shall hold
the property of the trust fund, IN TRUST, shall manage, invest and reinvest the
same, shall collect the income therefrom and shall dispose of the same as
follows:
ARTICLE FIRST
Disposition of the Trust Fund
A. The Trustee shall make distributions pursuant to this Subdivision
A upon the receipt of proceeds of any Sale and upon the receipt of cash or
marketable securities as a distribution or dividend (each such receipt a
"Distribution Event"). Within sixty (60) days of a Distribution Event, the
Trustee shall transfer, pay over and distribute the cash or marketable
securities received by the trust (net of any administration expenses including,
without limitation, those payable pursuant to Article FOURTH, hereinafter the
"Net Distribution Amount") to and among the General Partner and those persons
who were citizens or residents of the United States or domestic corporations
within the meaning of Section 672(f)(1) of the Code and Limited Partners of the
Settlor as of the closing date of the Sale or the record date of such
distribution or dividend, as the case may be, pro rata among such Partners in
the same proportions as their capital contributions to the Settlor with respect
to the Xxxxxxx Stock as of such date (hereinafter the "Recipients").
B. On January 18, 2010 or the earlier dissolution of the Settlor,
the trust shall terminate and the Trustee shall transfer, pay over and
distribute all remaining assets comprising the trust fund among the Recipients
as of such date, pro rata in the same proportions as the capital contributions
of the Recipients to the Settlor with respect to the Xxxxxxx Stock as of such
date.
C. In determining the identity of the Recipients and the proportions
of their capital contributions to the Settlor for the purposes of Subdivisions A
and B of this Article, the Trustee shall be entitled to rely upon a certificate
which shall be provided to the Trustee by the Settlor within thirty (30) days of
a Distribution Event, upon termination of the trust and upon demand by the
Trustee at any time.
ARTICLE SECOND
Trustee Powers and Administrative Matters
A. 1. The Trustee is expressly authorized to receive and hold
Xxxxxxx Stock as a contribution from the Settlor and to acquire a limited
partnership, membership, stock or other equity interest in one or more
limited partnerships, limited liability companies and corporations, and in
connection with any such receipt or acquisition to enter into any
covenants or agreements restricting the trust hereunder from selling,
transferring, assigning, conveying, distributing, pledging, mortgaging,
encumbering, hypothecating or otherwise transferring shares or interests
in Xxxxxxx Stock or any such interest in such entity.
2. Subject to Paragraph 3 of this Subdivision, the Trustee is
expressly authorized to continue to invest and hold the entire trust fund
as Xxxxxxx Stock and/or any other interest described in Paragraph 1 of
this Subdivision A, notwithstanding any contrary rule of law regarding
diversification of assets, delegation of investment decisions or
otherwise, and further notwithstanding the fact that such property may not
be marketable or liquid at any time or at all times.
3. The Trustee is expressly directed to sell all Xxxxxxx Stock
that may be received pursuant to Article SIXTH on the public market at the
earliest available opportunity following the registration of such stock
pursuant the Registration Rights Agreement, provided that the sale price
and other market conditions at such time are favorable to the
Beneficiaries as determined in the sole discretion of the Trustee. In
connection with such registration and sale, the Trustee is expressly
authorized to exercise on behalf of the Settlor the piggy-back
registration rights described in Section 3. of the Registration Rights
Agreement and held by the Settlor in its capacity as a party to the
Registration Rights Agreement.
4. It being the desire of the Settlor that the Trustee not
confine the Trustee's investments of the trust under this Agreement to
those
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authorized by law or by any rule of court, unless the Trustee shall deem
such course advisable, the Settlor hereby declares that the Trustee shall
not be liable for any loss sustained by the trust under this Agreement by
reason of the purchase, retention, sale or exchange of any investment by
the Trustee pursuant to this Subdivision and in good faith.
5. Any decision of the Trustee with respect to the exercise or
nonexercise of any discretionary power under this Agreement, or with
respect to the time or manner of the exercise thereof, made in good faith,
shall fully protect the Trustee and shall be conclusive and binding upon
all persons interested in the trust under this Agreement. In no event and
under no circumstances shall the Trustee incur any liability either
individually or as Trustee, with respect to any duty, responsibility,
power, authority or discretion of the Trustee under this Agreement unless
the same shall be done or omitted by the Trustee by reason of willful
misconduct, fraud or bad faith, and the Settlor hereby agrees that any
Trustee will at all times, including after the Trustee ceases to serve as
a Trustee, be protected and indemnified from the trust fund from any and
all liability, loss, damages, or expenses of whatsoever kind or nature
which such Trustee, individually or as Trustee, may at any time sustain or
incur or become liable for by reason of acting as a Trustee hereunder,
arising out of the Trustee's performance of the Trustee's duties
hereunder, or otherwise arising in connection with this Agreement and the
trust hereby created except by reason of willful misconduct, fraud or bad
faith on the part of such Trustee.
B. Subject to Subdivision A of this Article, the Trustee shall have,
with respect to any and all property at any time held by the Trustee, whether
constituting principal or income therefrom, the following powers, in addition to
those granted elsewhere in this Agreement and those conferred by law:
1. To retain any such property as an investment without regard
to the proportion which such property or property of a similar character,
so held, may bear to the entire amount of the trust hereunder, whether or
not trustees are authorized by law or by any rule of court to invest trust
funds in such property.
2. To sell any such property at either public or private sale
for cash or on credit of any duration, to exchange any such property and
to grant options for the purchase of any such property, including, without
limitation, stocks, with or without consideration and without any
limitation on the period of any such option.
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3. To invest and reinvest in property of any character, real
or personal, foreign or domestic, including, without limitation, the
following: bonds; notes; debentures; mortgages; certificates of deposit;
common and preferred stocks; shares or interests in partnerships or
investment trusts and companies; mutual funds; participations in any
common trust fund maintained by any corporate trustee acting hereunder;
futures contracts in commodities of any kind (including, without
limitation, financial futures, stock market indexes and currencies); and
calls, puts and options (both covered and uncovered) on securities and
commodities; to sell securities short and maintain and trade in both
margin accounts and commodity accounts; all such investing and reinvesting
to be without regard to the proportion which such property or property of
a similar character, so held, may bear to the entire amount of the trust
in which such property is held, whether or not trustees are authorized by
law or by any rule of court to so invest trust funds.
4. To consent to and participate in, or to oppose, any
foreclosure, liquidation or plan of reorganization, consolidation, merger,
combination or other similar plan and to consent to any contract, lease,
mortgage, purchase, sale or other action by any corporation pursuant to
such plan.
5. To deposit any such property with any protective,
reorganization or similar committee, to delegate discretionary power
thereto and to pay part of its expenses and compensation and any
assessments levied with respect to such property.
6. To exercise all conversion, subscription, voting and other
rights of whatsoever nature pertaining to any such property and to grant
proxies, discretionary or otherwise, with respect thereto.
7. To make or guaranty loans or borrow money in such amounts
and upon such terms, with or without security, to or from the Trustee
individually or others (other than loans to the Settlor), and for such
purpose or purposes as the Trustee in the Trustee's discretion may
determine, and in connection therewith to execute promissory notes,
mortgages or other obligations and to pledge or mortgage any such property
as security.
8. To engage and compensate agents (including, without
limitation, accountants, custodians, investment advisers and attorneys,
and regardless of whether the Trustee is a principal or employee thereof)
to act in the Trustee's behalf, and to delegate discretionary power to
such agents.
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9. To extend the time of payment of any obligation at any time
owing by or to the Trustee or the trust hereunder and to compromise,
settle or submit to arbitration upon such terms as the Trustee may deem
advisable, or to release, with or without consideration, any claim in
favor of or against the trust hereunder.
10. To cause any such property to be held either in nominee
registration, with or without indication of the fiduciary character
thereof, or unregistered.
11. In dividing or distributing the trust hereunder, or any
part thereof, to make partition, division or distribution of property in
kind, whether equal or disproportionate, and with or without thereafter
making any adjustment for disproportionate income tax bases in such
property, as the Trustee may deem advisable, and, for any such purpose, to
determine the value of any such property so far as permitted by law.
12. To change the situs of the trust property of the trust
under this Agreement and/or to change the law governing the administration
of such trust in any or all respects.
13. To do all such acts, take all such proceedings and
exercise all such rights and privileges, although not herein specifically
mentioned, with respect to any such property, as if the absolute owner
thereof and in connection therewith to make, execute and deliver any
instruments and to enter into any covenants or agreements binding the
trust hereunder.
C. Persons dealing with the Trustee shall not be obligated to look
to the application of any moneys or other property paid or delivered to the
Trustee or to inquire into the Trustee's authority as to any transaction. All
powers granted to the Trustee shall continue until actual distribution of the
property.
D. The Trustee (other than any beneficiary) may amend the
administrative and technical provisions of the trust under this Agreement at any
time as the Trustee deems appropriate for the proper administration of the
trust, by acknowledged written instrument, with a copy delivered to the Settlor.
The authority to amend pursuant to this Subdivision may not be exercised in any
manner that would alter any beneficial interest in any trust. It is the
Settlor's wish that the Trustee bear in mind the purpose for which the Settlor
established the trust in exercising this authority to amend.
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ARTICLE THIRD
Accounting and Settlement
A. Any Trustee may at any time and from time to time render to the
General Partner an account of the acts and transactions of such Trustee with
respect to the income and principal of such trust, from the date of the creation
of such trust or from the date of the last previous account of such Trustee, as
the case may be; and the General Partner shall have full power and authority on
behalf of all persons and entities interested in such trust finally to settle
and adjust such account; and upon such account being settled and adjusted to the
satisfaction of the General Partner, it shall be binding and conclusive upon
each and every person and entity (whether or not then living or then
ascertainable) who shall then or thereafter be or become interested in either
the income or the principal of such trust, with like effect as a judgment of a
court having jurisdiction judicially settling such account in an action in which
such Trustee and all persons having or claiming any interest in such trust were
parties; and the approval by the General Partner of such account shall
constitute a full discharge and release of such Trustee and of the estate of any
deceased Trustee for whom such account is rendered, from all further liability,
responsibility and accountability for or with respect to the acts and
transactions of such Trustee as set forth in said account, as to both income and
principal of such trust.
B. Nothing contained in this Article shall preclude any Trustee from
having an account judicially settled or from filing periodic accounts if such
Trustee shall deem such settlement or such filing advisable.
C. If, in any accounting or other proceeding or in any nonjudicial
settlement of any Trustee's account, any party to such proceeding or settlement
shall be a person under a disability, service of process in such proceeding
shall not be required upon such person under a disability, or such person under
a disability shall not be required to join in such settlement, if there is
another person, not under a disability, who is a party to the proceeding or
settlement and who has the same interest as the person under a disability.
ARTICLE FOURTH
Trustees
A. 1. The Trustee shall have the power to designate a successor
Trustee (other than the Settlor). If within forty-five (45) days of the
event creating a vacancy in the office of Trustee no designation of
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successor Trustee shall have been made pursuant to the foregoing
provisions of this Subdivision A and no Trustee shall be acting hereunder,
then the Settlor shall have the power to designate a successor Trustee.
2. Any designation of a successor Trustee pursuant to this
Article shall be made by a duly acknowledged instrument in writing
designating a bank or trust company with at least $1 billion under
management and with authority to act as Trustee in the jurisdiction in
which the trust is then situated. Any such instrument of designation shall
become effective according to its terms and shall be revocable by a
similar instrument at any time before such designation shall become
effective. In the event that the same person shall have executed more than
one instrument designating a successor, then the instrument that shall
bear the most recent date and shall be unrevoked shall govern.
B. 1. Any Trustee may resign at any time and for any reason.
2. Any such resignation shall be effected by a duly acknowledged
instrument in writing delivered to the successor of the resigned Trustee
and to the Settlor, and filed with the records of the trust to which it
relates.
C. No Trustee shall be required to give any bond or other security
in any jurisdiction whatever, whether for the faithful performance of such
Trustee's duties, to secure payment or payments on account of commissions, or
otherwise, and if, notwithstanding this direction, any such bond or other
security shall be required, no sureties shall be required thereon.
D. 1. The Settlor agrees to pay Bank of America as compensation for
its services as Trustee the fees set forth in its regularly adopted
schedule of compensation for Trust Services in effect at the time such
services are rendered. The Settlor agrees to pay the Trustee a minimum
aggregate fee of $75,000 for services rendered under this Agreement. To
the extent of cash contributed by the Settlor to the Trust as set forth on
Schedule A and remaining on hand from time to time, such fees will be paid
out of such cash and to that extent the Settlor will be relieved of the
obligation to pay such fees as set forth in the preceding two sentences.
Upon such time as the initial cash on Schedule A is exhausted, the Trustee
will xxxx the Settlor monthly for its services. No termination fees shall
apply. A copy of the Trust Services fee schedule currently in effect is
shown in Exhibit 1.
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2. The reasonable compensation of each successor Trustee shall
be fixed by agreement or as provided in the instrument of designation of
such Trustee. If no agreement has been made pursuant to the foregoing
provisions of this Paragraph and no compensation is specified in the
instrument of designation, each successor Trustee's compensation shall be
the compensation to which a sole individual Trustee of an express trust
shall be entitled under New York law in effect at the time such
compensation is payable.
3. In addition to the foregoing provisions of this
Subdivision, the Trustee shall be specifically entitled to the
reimbursement of any costs and expenses the Trustee incurs in connection
with the administration of the trust, including, without limitation, the
costs associated with engaging accountants, custodians, investment
advisers and/or attorneys. Such reimbursement (i) shall be paid from the
proceeds of any sale of trust property and (ii) shall occur prior to the
distribution of proceeds to the beneficiaries pursuant to Subdivision A of
Article FIRST. In the event proceeds are not available to reimburse such
expenses within a reasonable time, the Settlor agrees to reimburse such
expenses upon thirty (30) days written notice from the Trustee.
ARTICLE FIFTH
Irrevocability and Governing Law
This Agreement shall be irrevocable and unamendable by the Settlor.
Subject to the Trustee's power to change the situs of the trust property of the
trust hereunder and/or to change the law governing the administration of such
trust, this Agreement and the trust hereunder shall be governed and construed in
all respects according to the laws of the State of New York.
ARTICLE SIXTH
Additions to Trust
At any time the Settlor may add (i) Xxxxxxx Stock and (ii) any
dividends with respect to such Xxxxxxx Stock to the trust hereunder, but there
shall be no other additions of any property to the trust hereunder.
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ARTICLE SEVENTH
No Assignments
Neither the principal nor the income of the trust under this
Agreement, so long as the same is held by the Trustee, shall be subject to
assignment or any other anticipation by the beneficiary for whom the same is
intended, nor to attachment, execution, garnishment, sequestration or other
seizure under any legal, equitable or other process.
ARTICLE EIGHTH
Special Tax and Pourover Provisions
A. Notwithstanding any other provision of this Agreement, the
Trustee is authorized and empowered to pay over to the trustees of any other
trust having substantially identical terms and conditions for the same
beneficiaries any or all principal (and income on hand or accrued) out of the
trust hereunder or out of property otherwise directed to be held in the trust
hereunder, for the primary benefit of such beneficiary or beneficiaries, if such
other trust was created by the Settlor, regardless of when such other trust was
created (whether before or after the creation of the trust hereunder), and
whether or not such other trust was created for the express purpose of being the
repository of such principal and/or income.
B. Notwithstanding anything to the contrary in Paragraph 7 of
Subdivision B of Article SECOND hereof, the Trustee shall have the power at any
time or times to lend the trust corpus or income without adequate security to
the Settlor on such terms as the Trustee shall deem appropriate and to demand
repayment of any such loan at any time and for any reason or for no reason. Such
power may be exercised at any time, and for any reason (or for no reason), in
the sole, absolute and unreviewable discretion of the Trustee with respect to
the trust under this Agreement.
ARTICLE NINTH
Rules of Construction
A. Except as otherwise specifically provided in this Agreement, each
reference herein to:
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1. "Distribution Event" and "Net Distribution Amount" shall
have the meanings set forth in Subdivision A of Article FIRST;
2. "General Partner" of the Settlor shall mean New Mountain
Investments, L.P., a Delaware limited partnership;
3. The "Internal Revenue Code," the "Code" or to a Section
thereof, shall be deemed to mean and refer either to the United States
Internal Revenue Code of 1986 or such Section thereof, as amended, or to
such other statutory provisions as shall correspond thereto;
4. "Limited Partners" of the Settlor shall mean the
individuals or entities listed on Schedule A of the Settlor's Limited
Partnership Agreement, as amended and restated from time to time;
5. "Partners" of the Settlor shall mean the General Partner
and the Limited Partners of the Settlor from time to time;
6. "Registration Rights Agreement" for purposes of Subdivision
A of Article SECOND shall mean a certain Registration Rights Agreement
dated May 15, 2001 entered into by and among New Mountain Partners, L.P.,
DB Capital Investors, L.P. and Xxxxxxx Education, Inc., a Maryland
Corporation;
7. "Sale" shall mean any disposition of trust property (other
than cash or marketable securities) for consideration consisting of cash
and/or marketable securities;
8. "Xxxxxxx Stock" shall mean the aggregate of all stock in
Xxxxxxx Education, Inc., a Maryland corporation, held at any time by the
Settlor and by the Trustee as an asset of the trust fund; and
9. The "Trustee" shall be deemed to mean and refer to the
Trustee at the time acting under this Agreement, and except as otherwise
specifically provided in this Agreement, the powers, privileges and
immunities and the discretions granted herein shall attach to the office
of Trustee and shall continue as long as any assets are held in trust
under this Agreement and until the final distribution thereof.
B. Whenever necessary or appropriate, the use herein of any gender
shall be deemed to include the other genders and the use herein of either the
singular or the plural shall be deemed to include the other.
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C. The headings in this Agreement have been inserted solely for
convenient reference and shall be ignored in its construction.
D. This Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be deemed an original and all
of which taken together shall constitute but one and the same instrument.
E. This Agreement shall become effective as of the day and year
first above written.
IN WITNESS WHEREOF, the Settlor and the Trustee have hereunto set
their respective hands as of the day and year first above written.
NEW MOUNTAIN PARTNERS, L.P., Settlor
By: New Mountain Investments, L.P.,
its general partner
By: New Mountain GP, LLC,
its general partner
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Managing Member
BANK OF AMERICA, N.A., Trustee
By: /s/ XxXx Xxxxxxx
----------------
XxXx Xxxxxxx
Vice President
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XXXXX XX Xxx Xxxx)
: ss.:
COUNTY OF New York)
On December 23rd , 2003, before me, the undersigned, personally appeared XXXXXX
X. XXXXXXX, personally known to me or proved to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his capacity, and that by
his signature on the instrument, the individual, or the person on behalf of
which the individual acted, executed the instrument.
/s/ Xxxxxx Xxxxxx
-----------------------------
Notary Public
STATE OF North Carolina)
: ss.:
COUNTY OF Mecklenburg)
On December 23rd , 2003, before me, the undersigned, personally appeared XXXX
XXXXXXX, personally known to me or proved to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within instrument
and acknowledged to me that she executed the same in her capacity, and that by
her signature on the instrument, the individual, or the person on behalf of
which the individual acted, executed the instrument and that such individual
made such appearance before the undersigned in Charlotte, North Carolina.
/s/ Xxxxx X. Marsly
-----------------------------
Notary Public
Exhibit I
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[BANK OF AMERICA LOGO]
The Private Bank
TRUST SERVICES
SCHEDULE OF FEES
As your trustee, The Private Bank at Bank of America will provide trust
management services, and is also able to provide portfolio management and
safekeeping of securities, if you choose. In addition, collection and
distribution of interest and dividends, execution of the purchase or sale
of securities, daily cash investment, and periodic investment reports and
transaction statements are provided. If your account is invested in
Nations Funds, see the prospectus for information on fund expenses.
ANNUAL FEES ON MARKET VALUE OF FINANCIAL ASSETS
RATE CURRENT MARKET VALUE
---- --------------------
1.45% on the first $1,000,000
0.90% on the next 2,000,000
0.70% on the next 2,000,000
0.55% on the next 5,000,000
0.45% on the balance over 10,000,000
The minimum annual market value fee for all assets included in these trust
services is $8,000.
Fees in accordance with published schedules will apply for investments in the
Consulting Group Portfolios (Portfolio Selects Program), tax return preparation,
management and valuation of closely held business interests, oil and gas
services, note and mortgage services, real estate property management and
distributions. Charges for asset distributions and terminations will reflect the
time, effort and costs involved.
When special or unusual services are required, outside of the published fee
schedules, our fee will include reasonable additional compensation,
out-of-pocket expenses, or both, based upon the nature of service and the extent
of the duties and responsibility assumed.
Fees are subject to change and are computed and charged monthly.
SCHEDULE A
Seventy-Five Thousand Dollars ($75,000.00)
