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FORM OF
IRREVOCABLE TRUST AGREEMENT
BETWEEN
XXXXX XXXXX INC.
AND
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, N.A.
AS IRREVOCABLE TRUSTEE
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FEBRUARY __, 1998
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IRREVOCABLE TRUST AGREEMENT, dated as of February __, 1998
(the "Agreement"), between Xxxxx Xxxxx Inc., a Delaware corporation (the
"Company"), and ("State Street").
WITNESSETH:
WHEREAS, the Company has heretofore entered into an
indenture dated as of September 15, 1992 by and among the Company (formerly
Xxxxx Xxxxx Holding Corp.), and State Street as indenture trustee (formerly
The Connecticut National Bank) (the "Indenture Trustee") (the "Indenture")
(defined terms used herein and not otherwise defined herein have the meanings
set forth in the Indenture);
WHEREAS, pursuant to, and governed by the terms of, the
Indenture, the Company currently has outstanding _____________ in aggregate
principal amount at maturity of its __________ Notes due September 15, 200__
(the "Notes");
WHEREAS, the Company desires to create an irrevocable trust
pursuant to Sections 1301(b) and 1302 of the Indenture to hold as trust funds
in trust U.S Government Obligations (the "Defeasance Fund"), sufficient to
provide for the payment and discharge of the principal of, premium and
interest on, the Notes on March __, 1998 in accordance with the terms of the
Indenture and the Notes (the "Payment Obligations"), for the purpose of
releasing and discharging the Company from its obligations under certain
covenants (the "Defeasance"), as more particularly set forth in Article Eight
of the Indenture;
WHEREAS, State Street has full power and authority to
execute this Agreement and to accept the trust imposed upon it;
NOW, THEREFORE, in consideration of the mutual promises
herein contained, the parties hereto hereby agree as follows:
ARTICLE I
APPOINTMENT OF IRREVOCABLE TRUSTEE
1.1 Appointment of Irrevocable Trustee. The Company hereby
appoints State Street as trustee hereunder (the "Irrevocable Trustee"), and
the Irrevocable Trustee accepts the trust created by this Agreement upon the
terms and conditions contained herein.
ARTICLE II
DEPOSIT
2.1 Deposit of U.S. Government Obligations. The Company
hereby irrevocably deposits with the Irrevocable Trustee as trust funds in
trust the [amount of cash in U.S. Legal Tender (the "Cash")] U.S. Government
Obligations set forth on Schedule 1 hereto to provide for the Payment
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Obligations in accordance with the terms of the Indenture and the Irrevocable
Trustee hereby acknowledges receipt of the cash identified on Schedule 1
hereto. The Defeasance Fund deposited with the Irrevocable Trustee shall be
held in trust and applied by the Irrevocable Trustee in accordance with the
provisions of the Indenture and the Notes, to the payment, either directly or
through any Paying Agent (including the Company or any of its Subsidiaries
acting as its own Paying Agent) as the Irrevocable Trustee may determine, to
the Holders of such Notes of all sums due and to become due thereon in respect
of the Payment Obligations.
2.2 Redemption. The Company hereby instructs the Irrevocable
Trustee to call the Notes for redemption on March __, 1998.
[2.3 Pledge and Security Agreement. The Company hereby
instructs the Irrevocable Trustee to enter into the Pledge and Security
Agreement of even date herewith for the benefit of the holders of the Notes.]
ARTICLE III
THE TRUST ESTATE
3.1 Assignment of Rights and Interests. With respect to the
Notes, there is hereby created and established with the Irrevocable Trustee a
special and irrevocable trust (the "Trust") to be held by the Irrevocable
Trustee separate and apart from all other assets of the Company or the
Irrevocable Trustee. The Company hereby transfers and assigns to the
Irrevocable Trustee and its successors, in trust, for the purposes herein
specified, all right, title and interest of the Company in and to the
Defeasance Fund for the benefit of Holders of the Notes. The Defeasance Fund
held in trust hereunder as well as any interest or other payments received
thereon by the Irrevocable Trustee are hereinafter referred to as the "Trust
Estate."
The Irrevocable Trustee shall deposit into the Trust Estate,
as and when received by the Irrevocable Trustee, the Defeasance Fund and any
interest or other payments received thereon.
3.2 Purpose of Trust. The Trust is established for the
purpose of satisfying the Company's obligations in respect of the Defeasance
as provided in Section 8.01 of the Indenture.
3.3 Administration of Trust Estate. Interest and other
payments deposited in the Trust Estate after the date hereof shall be held by
the Irrevocable Trustee in the Trust Estate and used to satisfy the Payment
Obligations. If for any reason the Defeasance Fund is insufficient to satisfy
the Payment Obligations, and the Company does not correct such deficiency
within 15 days after notice by the Irrevocable Trustee, the Irrevocable
Trustee may [sell the U.S. Government Obligations as set forth in that certain
Pledge and Security Agreement of even date herewith between the Company and
the Irrevocable Trustee.]
3.4 Defeasance Funds. Any Defeasance Funds that are a part
of the Trust Estate that are in excess of the amounts necessary to satisfy the
Payment Obligations shall be paid to the Company from, and free of, the Trust
in accordance with Section 8.05 of the Indenture.
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ARTICLE IV
THE IRREVOCABLE TRUSTEE
4.1 Limitations on Liability. (a) The duties and obligations
of the Irrevocable Trustee shall be determined solely by the express
provisions of this Agreement, and the Irrevocable Trustee shall not be liable
except for the performance of such duties and obligations as are specifically
set forth in this Agreement. The liability of the Irrevocable Trustee for the
payment to Holders of the Notes shall be limited to the application of the
Defeasance Fund. This Agreement does not substitute the Irrevocable Trustee as
the obligor on the Notes.
(b) The Irrevocable Trustee may rely, and shall be
protected in acting or refraining from acting upon, any direction,
certificate, statement or other paper or document believed by it to be genuine
and to have been signed or presented by the proper person or persons.
(c) The Irrevocable Trustee may consult with counsel
and any written opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by the Irrevocable Trustee hereunder in good faith and in accordance
with such opinion of counsel.
(d) The Irrevocable Trustee shall not be liable for
any action it takes or omits to take in good faith which it believes to be
authorized or within the rights or powers conferred upon it by this Agreement.
(e) The Irrevocable Trustee may execute any of the
trust powers hereunder and perform any duties hereunder either directly or by
or through its agents or attorneys-in-fact.
(f) The Irrevocable Trustee shall have no duty with
respect to amounts payable to it in respect of the Trust Estate other than to
receive them and to apply the amounts actually received in accordance with
this Agreement. The Irrevocable Trustee shall not be obligated to take legal
action to enforce the payment obligations of the issuers of any securities in
the Trust Estate. The Company may, after 10 days' written notice to the
Irrevocable Trustee, enforce any such obligations, in the Company's name or in
the Irrevocable Trustee's name, at the Company's sole expense.
(g) The Irrevocable Trustee shall not be under any
duty in respect of any tax or assessment or other governmental charge which
may be levied or assessed on the Trust Estate or any part thereof or against
the Company.
(h) The Irrevocable Trustee shall not be required to
post any bond or other security or risk any funds in connection with its
duties as Irrevocable Trustee hereunder.
[(i) The Irrevocable Trustee shall not be liable for
any loss resulting from any investment made pursuant to the terms of this
Agreement, except as otherwise provided by Section 4.1(d) hereof.]
4.2 Indemnification. The Company agrees to indemnify, defend
and hold harmless the Irrevocable Trustee and its successors from and against
any and all liabilities, losses, damages, penalties, claims, actions, suits,
costs, expenses and disbursements (including reasonable legal fees and
expenses) of whatsoever kind and nature, which may be imposed on, incurred by
or asserted against, at
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any time, the Irrevocable Trustee, arising from or out of the execution,
delivery or administration, of this Agreement (including, without limitation,
the establishment of the Trust Estate, the acceptance of the cash, securities
or other assets deposited therein, the sufficiency of the Defeasance Fund, the
retention of the Defeasance Fund or the proceeds thereof and any payment,
transfer or other application of securities or cash by the Irrevocable Trustee
in accordance with the provisions of this Agreement or as may arise by reason
of any act, omission or error of the Irrevocable Trustee made in good faith in
the conduct of its duties hereunder) except for those caused by its own
negligence or bad faith. The obligations of the Company to indemnify the
Irrevocable Trustee pursuant to this paragraph shall survive the termination
of this Agreement. The Irrevocable Trustee shall have no right to obtain
payment from the Trust Estate of amounts owing to the Irrevocable Trustee
pursuant to this Section 4.2.
4.3 Compensation of the Irrevocable Trustee. In
consideration of the service rendered by the Irrevocable Trustee under this
Agreement, the Company agrees to and shall pay to the Irrevocable Trustee
reasonable compensation as agreed from time to time between the Irrevocable
Trustee and the Company. The Irrevocable Trustee shall be reimbursed upon its
request for all of its reasonable expenses, disbursements and advances
incurred by it as Irrevocable Trustee with respect to the Trust Estate
(including the reasonable compensation and the expenses and disbursements of
its agents and counsel). The Irrevocable Trustee shall have no right to obtain
payment of its fees and expenses hereunder from the Trust Estate. The
provisions of this Section 4.3 shall survive the termination of this
Agreement.
4.4 Authorization to Hold Funds. The Irrevocable Trustee is
authorized to hold U.S. Government Obligations and cash exclusively or in any
combination or proportion, and shall have no liability to any Holder of Notes
for purchasing, holding, or failing to dispose of U.S. Government Obligations
or cash.
ARTICLE V
MISCELLANEOUS
5.1 Termination. This Agreement shall terminate upon the
earlier of (a) September 15, 2004, and (b) payment by the Irrevocable Trustee
to the Holders of the Notes of the final sum due on the Notes in respect of
the Payment Obligations, or upon receipt by the Irrevocable Trustee of notice
from the Indenture Trustee that the Company has discharged its obligations
with respect to the Notes under the Indenture, whether by payment in full,
defeasance, redemption, or any other reason. Upon termination of this
Agreement subject to Section 4.3, any cash, securities or other assets
remaining in the Trust Estate shall be transferred promptly to the Company.
5.2 Effect On Indenture and Notes. Except as expressly
provided in the Indenture, this Agreement (and the consummation of the
transactions contemplated hereby) is not, and shall not be construed to be, a
termination of the Indenture, nor shall it alter any provision of the Notes.
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5.3 Notices. All instruction, notices and other
communications shall be given by mail, addressed as follows:
In the case of the Company:
Xxxxx Xxxxx Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Attention: Chief Executive Officer
In the case of the Irrevocable Trustee:
State Street Bank and Trust Company
of Connecticut, N.A.
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Corporate Trust Department
or at any other address furnished in writing by either of the parties hereto.
5.4 Counterparts. This Agreement may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
5.5 Severability. The provisions of this Agreement are
severable, and if any clause or provision shall be held invalid or
unenforceable in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part thereof,
in such jurisdiction and shall not in any manner affect such clause or
provision in any other jurisdiction, or any other clause or provision of this
Agreement in any jurisdiction.
5.6 Validity of Trust. The validity of the trust created
hereby shall be governed by the internal laws of the State of New York.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
XXXXX XXXXX INC.
By:
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Its:
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STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, N.A.
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
as Irrevocable Trustee
By:
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Its:
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