Exhibit 99.3
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re )
)
)
ARMSTRONG WORLD INDUSTRIES, ) Chapter 11
INC., et al., ) Case No. 00-4471 (RJN)
) (Jointly Administered)
Debtors )
- ------------------------------------)
Exhibit 1.23
FORM OF ASBESTOS PI TRUST AGREEMENT
ARMSTRONG WORLD INDUSTRIES, INC.
ASBESTOS PERSONAL INJURY SETTLEMENT TRUST AGREEMENT
This Armstrong World Industries, Inc. Asbestos Personal
Injury Settlement Trust Agreement ("PI TRUST AGREEMENT"), dated the date set
forth on the signature page hereof and effective as of the Effective Date, is
entered into by Armstrong World Industries, Inc. ("AWI," the "SETTLOR," or the
"DEBTOR"), the Debtor and debtor-in-possession in Case No. 00-4471 (RJN) in the
United States Bankruptcy Court for the District of Delaware as Settlor; the
Legal Representative for Asbestos-Related Future Claimants ("FUTURE CLAIMANTS'
REPRESENTATIVE"); the Official Committee of Asbestos Creditors ("ACC"); and the
Trustees ("TRUSTEES") and the members of the PI Trust Advisory Committee ("TAC")
identified on the signature page hereof and appointed at Confirmation pursuant
to Armstrong World Industries, Inc. First Amended Plan of Reorganization under
Chapter 11 of the United States Bankruptcy Code, dated March 14, 2003 ("PLAN"),
as such Plan may be amended, modified or supplemented from time to time. All
capitalized terms not otherwise defined herein shall have their respective
meanings as set forth in the Plan, and such definitions are incorporated herein
by reference. All capitalized terms not defined herein or defined in the Plan,
but defined in the Bankruptcy Code or Rules, shall have the meanings ascribed to
them by the Bankruptcy Code and Rules, and such definitions are incorporated
herein by reference.
WHEREAS, at the time of the entry of the order for relief
in the Chapter 11 case, AWI was named as a defendant in actions involving
personal injury ("PI") or death claims caused by exposure to asbestos-containing
products for which AWI, its predecessors, successors and assigns have legal
liability ("ASBESTOS PERSONAL INJURY CLAIMS" as defined in the Plan); and
WHEREAS, AWI has reorganized under the provisions of
Chapter 11 of the Bankruptcy Code in a case pending in the United States
Bankruptcy Court for the District of Delaware, known as In re Armstrong World
Industries, Inc., Debtor, Case No. 00-4471 (RJN); and
WHEREAS, the Plan has been confirmed by the Bankruptcy
Court; and
WHEREAS, the Plan provides, inter alia, for the creation of
the Armstrong World Industries, Inc. Asbestos Personal Injury Settlement Trust
("PI TRUST"); and
WHEREAS, pursuant to the Plan, the PI Trust is to use its
assets and income to satisfy all Asbestos Personal Injury Claims; and
WHEREAS, it is the intent of AWI, the Trustees, the ACC,
the TAC, and the Future Claimants' Representative that the PI Trust be
administered, maintained, and operated at all times through mechanisms that
provide reasonable assurance that the PI Trust will satisfy all Asbestos
Personal Injury Claims pursuant to the AWI Corporation Asbestos Personal Injury
Trust Distribution Procedures ("TDP") that are attached hereto as Exhibit 1 in
substantially the same manner, and in strict compliance with the terms of this
PI Trust Agreement; and
WHEREAS, pursuant to the Plan, the PI Trust is intended to
qualify as a "qualified settlement fund" within the meaning of section 1.468B-1
et seq. of the Treasury Regulations promulgated under section 468B of the
Internal Revenue Code ("IRC"); and
WHEREAS, the Bankruptcy Court has determined that the PI
Trust and the Plan satisfy all the prerequisites for an injunction pursuant to
section 524(g) of the Bankruptcy Code, and such injunction has been entered in
connection with the Confirmation Order;
NOW, THEREFORE, it is hereby agreed as follows:
Exhibit 1.23-1
SECTION 1
AGREEMENT OF TRUST
1.1 CREATION AND NAME. AWI as Settlor hereby creates a
trust known as the "Armstrong World Industries, Inc. Asbestos Personal Injury
Settlement Trust," which is the PI Trust provided for and referred to in the
Plan. The Trustees of the PI Trust may transact the business and affairs of the
PI Trust in the name of the PI Trust.
1.2 PURPOSE. The purpose of the PI Trust is to assume the
liabilities of AWI, its predecessors and successors in interest, for all
Asbestos Personal Injury Claims (as defined in the Plan), and to use the PI
Trust's assets and income to pay the holders of all Asbestos Personal Injury
Claims in accordance with this PI Trust Agreement and the TDP in such a way that
such holders of Asbestos Personal Injury Claims are treated fairly, equitably
and reasonably in light of the limited assets available to satisfy such claims,
and to otherwise comply in all respects with the requirements of a trust set
forth in section 524(g)(2)(B) of the Bankruptcy Code.
1.3 TRANSFER OF ASSETS. Pursuant to the Plan, the PI Trust
Share (as defined in the Plan) has been transferred and assigned to the PI Trust
to settle and discharge all Asbestos Personal Injury Claims. Pursuant to the
Plan, AWI, its successors in interest thereto, from and after the Effective Date
("REORGANIZED AWI") and others may also transfer and assign additional assets to
the PI Trust from time to time (the "PI TRUST ASSETS"). In all events, the PI
Trust Assets will be transferred to the PI Trust free and clear of any liens or
other claims by AWI, Reorganized AWI, any creditor, or other entity. AWI,
Reorganized AWI, and any other transferors shall also execute and deliver such
documents to the PI Trust as the Trustees reasonably request to transfer and
assign the PI Trust Assets to the PI Trust.
1.4 ACCEPTANCE OF ASSETS AND ASSUMPTION OF LIABILITIES
(a) In furtherance of the purposes of the PI Trust, the
Trustees, on behalf of the PI Trust, hereby expressly accept the transfer and
assignment to the PI Trust of the PI Trust Assets in the time and manner
contemplated in the Plan.
(b) In furtherance of the purposes of the PI Trust, the
Trustees, on behalf of the PI Trust, expressly assume all liability for (i) all
Asbestos Personal Injury Claims and (ii) all premiums, deductibles,
retrospective premium adjustments, security or collateral arrangements, or any
other charges, costs, fees, or expenses (if any) that become due to any insurer
in connection with the Asbestos PI Insurance Asset (as such term is defined in
the Plan) as a result of Asbestos Personal Injury Claims, asbestos-related
personal injury claims against Entities insured under policies included in the
Asbestos PI Insurance Asset by reason of vendor's endorsements, or under
indemnity provisions of settlement agreements that AWI made with various
insurers prior to the Commencement Date (as such term is defined in the Plan) to
the extent that those indemnity provisions relate to Asbestos Personal Injury
Claims.
(c) No provision herein or in the TDP shall be construed to
mandate distributions on any claims or other actions that would contravene the
PI Trust's compliance with the requirements of a qualified settlement fund
within the meaning of section 1.468B-1 et seq. of the Treasury Regulations
promulgated under section 468B of the IRC.
(d) AWI and Reorganized AWI shall be entitled to
indemnification from the PI Trust for any expenses, costs, and fees (including
attorneys' fees and costs, but excluding any such expenses, costs, and fees
incurred prior to the Effective Date), judgments, settlements, or other
liabilities arising from or incurred in connection with any action related to
Asbestos Personal Injury Claims, including, but not limited to, indemnification
or contribution for such claims prosecuted against Reorganized AWI.
(e) Nothing in this PI Trust Agreement shall be construed
in any way to limit the scope, enforceability, or effectiveness of the Section
524(g) injunction issued in connection with the Plan or the PI Trust's
assumption of all liability for Asbestos Personal Injury Claims, subject to the
provisions of Section 1.4(b) above.
Exhibit 1.23-2
SECTION 2
POWERS AND TRUST ADMINISTRATION
2.1 POWERS.
(a) The Trustees are and shall act as the fiduciaries to
the PI Trust in accordance with the provisions of this PI Trust Agreement and
the Plan. The Trustees shall, at all times, administer the PI Trust and the PI
Trust Assets in accordance with the purposes set forth in Section 1.2 above.
Subject to the limitations set forth in this PI Trust Agreement, the Trustees
shall have the power to take any and all actions that, in the judgment of the
Trustees, are necessary or proper to fulfill the purposes of the PI Trust,
including, without limitation, each power expressly granted in this Section 2.1,
any power reasonably incidental thereto, and any trust power now or hereafter
permitted under the laws of the State of Delaware.
(b) Except as required by applicable law or otherwise
specified herein, the Trustees need not obtain the order or approval of any
court in the exercise of any power or discretion conferred hereunder.
(c) Without limiting the generality of Section 2.1(a)
above, and except as limited below, the Trustees shall have the power to:
(i) receive and hold the PI Trust Assets, vote
the Reorganized AWI common stock, and exercise all rights with
respect to, and sell, any securities issued by Reorganized AWI that
are included in the PI Trust Assets, subject to any restrictions set
forth in the Restated Certificate of Reorganized AWI;
(ii) invest the monies held from time to time by
the PI Trust;
(iii) sell, transfer, or exchange any or all of
the PI Trust Assets at such prices and upon such terms as the
Trustees may consider proper, consistent with the other terms of this
PI Trust Agreement;
(iv) enter into leasing and financing agreements
with third parties to the extent such agreements are reasonably
necessary to permit the PI Trust to operate;
(v) pay liabilities and expenses of the PI Trust,
including, but not limited to, PI Trust expenses;
(vi) establish such funds, reserves and accounts
within the PI Trust estate, as deemed by the Trustees to be useful in
carrying out the purposes of the PI Trust;
(vii) sue and be sued and participate, as a party
or otherwise, in any judicial, administrative, arbitrative, or other
proceeding;
(viii) establish, supervise and administer the PI
Trust in accordance with the TDP and the terms thereof;
(ix) appoint such officers and hire such
employees and engage such legal, financial, accounting, investment,
auditing and forecasting, and other consultants and agents as the
business of the PI Trust requires, and delegate to such persons such
powers and authorities as the fiduciary duties of the Trustees permit
and as the Trustees, in their discretion, deem advisable or necessary
in order to carry out the terms of this PI Trust;
(x) pay employees, legal, financial, accounting,
investment, auditing, and forecasting, and other consultants,
advisors, and agents, including those engaged by the PI Trust in
connection with its alternative dispute resolution activities,
reasonable compensation;
(xi) compensate the Trustees, the TAC members,
and the Future Claimants' Representative as provided below, and their
employees, legal, financial, accounting, investment and other
advisors, consultants, independent contractors, and agents, and
reimburse the Trustees, the TAC members and the Future Claimants'
Exhibit 1.23-3
Representative all reasonable out-of-pocket costs and expenses
incurred by such persons in connection with the performance of their
duties hereunder;
(xii) execute and deliver such instruments as the
Trustees consider proper in administering the PI Trust;
(xiii) enter into such other arrangements with
third parties as are deemed by the Trustees to be useful in carrying
out the purposes of the PI Trust, provided such arrangements do not
conflict with any other provision of this PI Trust Agreement;
(xiv) in accordance with Section 4.6 below,
defend, indemnify and hold harmless (and purchase insurance
indemnifying) (A) the Trustees and (B) the TAC, the Future Claimants'
Representative, the officers and employees of the PI Trust, and any
agents, advisors and consultants of the PI Trust, the TAC or the
Future Claimants' Representative (the "ADDITIONAL INDEMNITEES"), to
the fullest extent that a corporation or trust organized under the
law of the PI Trust's situs is from time to time entitled to
indemnify and/or insure its directors, trustees, officers, employees,
agents, advisors and representatives;
(xv) delegate any or all of the authority herein
conferred with respect to the investment of all or any portion of the
PI Trust Assets to any one or more reputable individuals or
recognized institutional investment advisors or investment managers
without liability for any action taken or omission made because of
any such delegation, except as provided in Section 4.4 below;
(xvi) consult with Reorganized AWI, the TAC and
the Future Claimants' Representative at such times and with respect
to such issues relating to the conduct of the PI Trust as the
Trustees consider desirable; and
(xvii) make, pursue (by litigation or otherwise),
collect, compromise or settle, in the name of the PI Trust or the
name of Reorganized AWI, any claim, right, action, or cause of action
included in the PI Trust Assets including, but not limited to,
insurance recoveries, before any court of competent jurisdiction;
provided that settlement of actions before the Bankruptcy Court
require the approval of the Bankruptcy Court after notice to
Reorganized AWI.
(d) The Trustees shall not have the power to guarantee any
debt of other persons.
(e) The Trustees shall give the TAC, the Future Claimants'
Representative and Reorganized AWI prompt notice of any act performed or taken
pursuant to Sections 2.1(c)(i), (iii), (vii), or (xv) above, and any act
proposed to be performed or taken pursuant to Section 2.2(f) below.
2.2 GENERAL ADMINISTRATION.
(a) The Trustees shall adopt and act in accordance with the
PI Trust Bylaws. To the extent not inconsistent with the terms of this PI Trust
Agreement, the PI Trust Bylaws shall govern the affairs of the PI Trust. In the
event of an inconsistency between the PI Trust Bylaws and this PI Trust
Agreement, the PI Trust Agreement shall govern.
(b) The Trustees shall (i) timely file such income tax and
other returns and statements and shall timely pay all taxes required to be paid,
(ii) comply with all withholding obligations, as required under the applicable
provisions of the IRC and of any state law and the regulations promulgated
thereunder, (iii) meet without limitation all requirements necessary to qualify
and maintain qualification of the PI Trust as a qualified settlement fund within
the meaning of section 1.468B-1 et seq. of the Treasury Regulations promulgated
under section 468B of the IRC, and (iv) take no action that could cause the PI
Trust to fail to qualify as a qualified settlement fund within the meaning of
section 1.468B-1 et seq. of the Treasury Regulations promulgated under section
468B of the IRC.
(c) The Trustees shall timely account to the Bankruptcy
Court as follows:
Exhibit 1.23-4
(i) The Trustees shall cause to be prepared and
filed with the Bankruptcy Court, as soon as available, and in any
event within one hundred and twenty (120) days following the end of
each fiscal year, an annual report containing financial statements of
the PI Trust (including, without limitation, a balance sheet of the
PI Trust as of the end of such fiscal year and a statement of
operations for such fiscal year) audited by a firm of independent
certified public accountants selected by the Trustees and accompanied
by an opinion of such firm as to the fairness of the financial
statements' presentation of the cash and investments available for
the payment of claims and as to the conformity of the financial
statements with generally accepted accounting principles. The
Trustees shall provide a copy of such report to the TAC, the Future
Claimants' Representative, and Reorganized AWI when such reports are
filed with the Bankruptcy Court.
(ii) Simultaneously with delivery of each set of
financial statements referred to in Article 2.2(c)(i) above, the
Trustees shall cause to be prepared and filed with the Bankruptcy
Court a report containing a summary regarding the number and type of
claims disposed of during the period covered by the financial
statements. The Trustees shall provide a copy of such report to the
TAC, the Future Claimants' Representatives, and Reorganized AWI when
such report is filed.
(iii) All materials required to be filed with the
Bankruptcy Court by this Section 2.2(c) shall be available for
inspection by the public in accordance with procedures established by
the Bankruptcy Court and shall be filed with the Office of the United
States Trustee for the District of Delaware.
(d) The Trustees shall cause to be prepared as soon as
practicable prior to the commencement of each fiscal year a budget and cash flow
projections covering such fiscal year and the succeeding four fiscal years. The
budget and cash flow projections shall include determining the Maximum Annual
Payment pursuant to Section 2.4 of the TDP, and the Asbestos Personal Injury
Claims Payment Ratio pursuant to Section 2.5 of the TDP. The Trustees shall
provide a copy of the budget and cash flow projections to the TAC and the Future
Claimants' Representative.
(e) The Trustees shall consult with the TAC and the Future
Claimants' Representative (i) on the general implementation and administration
of the PI Trust; (ii) on the general implementation and administration of the
TDP; and (iii) on such other matters as may be required under this PI Trust
Agreement and the TDP.
(f) The Trustees shall be required to obtain the consent of
the TAC and the Future Claimants' Representative pursuant to the Consent Process
set forth in Section 5.7(b) and 6.6(b) below, in addition to any other instances
elsewhere enumerated, in order:
(i) to change the Claims Payment Ratio described in
Section 2.5 of the TDP in the event that the
requirements for such a change as set forth in
said provision have been met;
(ii) to change the Scheduled Diseases, Disease
Levels and/or Medical/Exposure Criteria set
forth in Section 5.3(a)(3) of the TDP, and/or
the Maximum Values set forth in Section
5.3(b)(4) and Section 5.4(a) of the TDP;
(iii) to change the Payment Percentage described in
Section 2.3 of the TDP as provided in Section
4.2 of the TDP;
(iv) to establish and/or to change the Claims
Materials to be provided holders of Asbestos
Personal Injury Claims under Section 6.1 of the
TDP;
(v) to require that claimants provide additional
kinds of medical and/or exposure evidence
pursuant to Section 7.1 of the TDP;
Exhibit 1.23-5
(vi) to change the form of release to be provided
pursuant to Section 7.8 of the TDP;
(vii) to terminate the PI Trust pursuant to Section
7.2 below;
(viii) to settle the liability of any insurer under
any insurance policy or legal action related
thereto;
(ix) to change the compensation of the members of
the TAC, the Future Claimants' Representative
or Trustees, other than to reflect
cost-of-living increases or changes approved by
the Bankruptcy Court as otherwise provided
herein;
(x) to take structural or other actions to minimize
any tax on the PI Trust Assets; or
(xi) to amend the PI Trust Bylaws in accordance with
the terms thereof;
(xii) to amend any provision of this PI Trust
Agreement or the TDP in accordance with the
terms thereof;
(xiii) to appoint members of the Board of Directors of
the Reorganized Debtor; or
(xiv) to merge any asbestos claims resolution
organization formed by the PI Trust with
another asbestos claims resolution organization
that is not specifically created by this PI
Trust Agreement or the TDP, or to contract with
another asbestos claims resolution organization
or other entity that is not specifically
created by this PI Trust Agreement or the TDP,
or permit any other party to join in any
asbestos claims resolution organization that is
formed by the PI Trust pursuant to the PI Trust
Agreement or the TDP; provided that such
merger, contract or joinder shall not (a)
subject Reorganized AWI or any successors in
interest thereto, to any risk of having any PI
Trust Claim asserted against it or them, or (b)
otherwise jeopardize the validity or
enforceability of the section 524(g)
injunction; and provided further that the terms
of such merger will require the surviving
organization to make decisions about the
allowability and value of claims in accordance
with Section 2.1 of the TDP which requires that
such decisions be based on the provisions of
the TDP.
(g) The Trustees shall meet with the TAC and the Future
Claimants' Representative no less often than quarterly. The Trustees shall meet
in the interim with the TAC and the Future Claimants' Representative when so
requested by either.
(h) The Trustees, upon notice from either the TAC or the
Future Claimants' Representative, if practicable in view of pending business,
shall at their next meeting with the TAC or the Future Claimants' Representative
consider issues submitted by the TAC or the Future Claimants' Representative.
(i) Periodically, but not less often than once a year, the
Trustees shall make available to claimants and other interested parties the
number of claims by disease levels that have been resolved both by individual
review and by arbitration, as well as by trial, indicating the amounts of the
awards and the averages of the awards by jurisdiction pursuant to Section 7.10
of the TDP.
Exhibit 1.23-6
2.3 CLAIMS ADMINISTRATION.
The Trustees shall promptly proceed to implement the TDP.
SECTION 3
ACCOUNTS, INVESTMENTS, AND PAYMENTS
3.1 ACCOUNTS. The Trustees may, from time to time, create
such accounts and reserves within the PI Trust estate as they may deem
necessary, prudent, or useful in order to provide for the payment of expenses
and payment of Asbestos Personal Injury Claims and may, with respect to any such
account or reserve, restrict the use of monies therein.
3.2 INVESTMENTS. Investment of monies held in the PI Trust
shall be administered in the manner in which individuals of ordinary prudence,
discretion, and judgment would act in the management of their own affairs,
subject to the following limitations and provisions:
(a) The PI Trust shall not acquire, directly or indirectly,
equity in any entity (other than Reorganized AWI or any successor to Reorganized
AWI) or business enterprise if, immediately following such acquisition, the PI
Trust would hold more than 5% of the equity in such entity or business
enterprise. The PI Trust shall not hold, directly or indirectly, more than 10%
of the equity in any entity (other than Reorganized AWI or any successor to
Reorganized AWI) or business enterprise.
(b) The PI Trust shall not acquire or hold any long-term
debt securities unless (i) such securities are PI Trust Assets under the Plan,
(ii) such securities are rated "Baa" or higher by Moody's, "BBB" or higher by
Standard & Poor's ("S&P'S"), or have been given an equivalent investment grade
rating by another nationally recognized statistical rating agency, or (iii) have
been issued or fully guaranteed as to principal and interest by the United
States of America or any agency or instrumentality thereof.
(c) The PI Trust shall not acquire or hold for longer than
ninety (90) days any commercial paper unless such commercial paper is rated
"Prime-1" or higher by Moody's or "A-1" or higher by S&P's or has been given an
equivalent rating by another nationally recognized statistical rating agency.
(d) Excluding any securities by the Debtor or Reorganized
AWI, the PI Trust shall not acquire or hold any common or preferred stock or
convertible securities unless such stock or securities are rated "A" or high by
Moody's or "A" or higher by S&P's or have been given an equivalent investment
grade rating by another nationally recognized statistical rating agency.
(e) The PI Trust shall not acquire any debt securities or
other instruments issued by any entity (other than debt securities or other
instruments issued or fully guaranteed as to principal and interest by the
United States of America or any agency or instrumentality thereof) if, following
such acquisition, the aggregate market value of all debt securities and
instruments issued by such entity held by the PI Trust would exceed 2% of the
aggregate value of the PI Trust estate. The PI Trust shall not hold any debt
securities or other instruments issued by any entity (other than debt securities
or other instruments issued or fully guaranteed as to principal and interest by
the United States of America or any agency or instrumentality thereof and other
than debt securities or other instruments of Reorganized AWI or any successor to
Reorganized AWI) to the extent that the aggregate market value of all securities
and instruments issued by such entity held by the PI Trust would exceed 5% of
the aggregate value of the PI Trust Assets.
(f) The PI Trust shall not acquire or hold any certificates
of deposit unless all publicly held, long-term debt securities, if any, of the
financial institution issuing the certificate of deposit and the holding
company, if any, of which such financial institution is a subsidiary, meet the
standards set forth in Section 3.2(b) above.
Exhibit 1.23-7
(g) The PI Trust may acquire and hold any securities or
instruments issued y Reorganized AWI or any successor to Reorganized AWI, or
obtained as proceeds of litigation or otherwise to resolve disputes, without
regard to the limitations set forth in Subsections (a)-(f) above.
(h) The PI Trust shall not acquire or hold any repurchase
obligations unless, in the opinion of the Trustees, they are adequately
collateralized.
(i) The PI Trust shall not acquire or hold any options.
3.3 SOURCE OF PAYMENTS. All PI Trust expenses and payments
and all liabilities with respect to claims shall be payable solely by the
Trustees out of the PI Trust Assets. Neither AWI, Reorganized AWI, their
subsidiaries, any successor in interest, the present or former directors,
officers, employees or agents of AWI, Reorganized AWI, nor the Trustees, the TAC
or Future Claimants' Representative, or any of their officers, agents, advisors,
or employees shall be liable for the payment of any PI Trust expense or any
other liability of the PI Trust.
SECTION 4
TRUSTEES
4.1 NUMBER. There shall be five (5) Trustees. The initial
Trustees shall be those persons named on the signature page hereof.
4.2 TERM OF SERVICE.
(a) The five initial Trustees named pursuant to Article 4.1
above shall each serve an initial two (2) year term. At the expiration of these
initial two (2) year terms, the number of Trustees shall be reduced from five
(5) to three (3). At that time, the five initial Trustees, after consultation
with the TAC and the Future Claimants' Representative, shall decide which three
individuals among their number shall continue to serve, and the three (3)
Trustees so selected shall then serve staggered terms of three (3), four (4) and
five (5) years each. Thereafter, each Trustee's term of service shall be five
(5) years. The initial Trustees shall serve from the Effective Date until the
earlier of (i) the end of his or her term, (ii) his or her death, (iii) his or
her resignation pursuant to Section 4.2(b) below, (iv) his or her removal
pursuant to Section 4.2(c) below, or (v) the termination of the PI Trust
pursuant to Section 7.2 below.
(b) A PI Trustee may resign at any time by written notice
to the remaining Trustees, the TAC and the Future Claimants' Representative.
Such notice shall specify a date when such resignation shall take place, which
shall not be less than 90 days after the date such notice is given, where
practicable.
(c) A Trustee may be removed by unanimous vote of the
remaining Trustees in the event that he or she becomes unable to discharge his
or her duties hereunder due to accident or physical or mental deterioration, or
for other good cause. Good cause shall be deemed to include, without limitation,
any substantial failure to comply with the general administration provisions of
Section 2.2 above, a consistent pattern of neglect and failure to perform or
participate in performing the duties of the Trustees hereunder, or repeated
non-attendance at scheduled meetings. Such removal shall require the approval of
the Bankruptcy Court and shall take effect at such time as the Bankruptcy Court
shall determine.
4.3 APPOINTMENT OF SUCCESSOR TRUSTEES.
(a) In the event of a vacancy in the position of PI
Trustee, whether by term expiration, resignation or removal, the remaining
Trustees shall consult with the TAC and the Future Claimants' Representative
concerning appointment of a successor PI Trustee. The vacancy shall be filled by
the unanimous vote of the remaining Trustees unless a majority of the TAC or the
Future Claimants' Representative vetoes the appointment. In the event that the
remaining Trustees cannot agree on a Successor PI Trustee, or a majority of the
TAC or the Future Claimants' Representative vetoes the appointment of a
successor PI Trustee, the Bankruptcy Court shall make the appointment. Nothing
shall prevent the reappointment of a PI Trustee for an additional term or terms.
Exhibit 1.23-8
(b) Immediately upon the appointment of any Successor PI
Trustee, all rights, titles, duties, powers and authority of the predecessor PI
Trustee hereunder shall be vested in, and undertaken by, the Successor PI
Trustee without any further act. No Successor PI Trustee shall be liable
personally for any act or omission of his or her predecessor Trustees.
(c) Each Successor PI Trustee shall serve until the earlier
of (i) the end of a full term of five (5) years if the predecessor PI Trustee
completed his or her term, (ii) the end of the remainder of the term of the PI
Trustee whom he or she is replacing if said predecessor PI Trustee did not
complete said term, (iii) his or her death, (iv) his or her resignation pursuant
to Section 4.2(b) above, (v) his or her removal pursuant to Section 4.2(c)
above, or (vi) the termination of the PI Trust pursuant to Section 7.2 below.
4.4 LIABILITY OF TRUSTEES, OFFICERS AND EMPLOYEES. The
Trustees and the individuals identified as Additional Indemnitees in Section
2.1(c)(xiv) above shall not be liable to the PI Trust, to any individual holding
an asbestos claim, or to any other person, except for such individual's own
breach of trust committed in bad faith or willful misappropriation. In addition,
the Trustees and the Additional Indemnitees shall not be liable for any act or
omission of any other Trustee or Additional Indemnitee unless such person acted
with bad faith in the selection or retention of such other Trustee or Additional
Indemnitee.
4.5 COMPENSATION AND EXPENSES OF TRUSTEES.
(a) The Trustees shall receive compensation from the PI
Trust for their services as Trustees in the amount of $_____________ per annum,
plus a per diem allowance for meetings or other PI Trust business performed in
the amount of $__________. For purposes of the per diem allowance, PI Trust
business includes, but is not limited to, attendance at meetings of Reorganized
AWI's Board of Directors. For purposes of section 7.4 below, the Trustees shall
determine the scope and duration of activities that constitute a meeting and, if
the Trustees elect to provide for payment for activities of less than a full
day's duration, may provide for partial payment of per diem amounts on a
proportional basis for activities of less than a full day's duration. The per
annum and per diem compensation payable to the Trustees hereunder shall be
reviewed every three (3) years and appropriately adjusted for changes in the
cost of living. Any other changes in compensation of the Trustees shall be made
subject to the approval of the Bankruptcy Court.
(b) The PI Trust will promptly reimburse the Trustees for
all reasonable out-of-pocket costs and expenses incurred by the Trustees in
connection with the performance of their duties hereunder.
(c) The PI Trust shall include a description of the amounts
paid under this Section 4.5 in the accounts to be filed with the Bankruptcy
Court and provided to the TAC, the Future Claimants' Representative, and
Reorganized AWI pursuant to Section 2.2(c)(i).
4.6 INDEMNIFICATION OF TRUSTEES AND ADDITIONAL INDEMNITEES.
(a) The PI Trust shall indemnify and defend the Trustees,
as well as the Additional Indemnitees in the performance of their duties
hereunder to the fullest extent that a corporation or trust organized under the
laws of the PI Trust's situs is from time to time entitled to indemnify and
defend such persons against any and all liabilities, expenses, claims, damages
or losses incurred by them in the performance of their duties. Notwithstanding
the foregoing, the Trustees and the Additional Indemnitees shall not be
indemnified or defended in any way for any liability, expense, claim, damage, or
loss for which he or she is ultimately liable under Section 4.4 above.
(b) Reasonable expenses, costs and fees (including
attorneys' fees and costs) incurred by or on behalf of a PI Trustee or
Additional Indemnitee in connection with any action, suit, or proceeding,
whether civil, administrative or arbitrative from which they are indemnified by
the PI Trust pursuant to Section 4.6(a) above, shall be paid by the PI Trust in
advance of the final disposition thereof upon receipt of an undertaking, by or
on behalf of the Trustees or Additional Indemnitee, to repay such amount in the
Exhibit 1.23-9
event that it shall be determined ultimately by final order that such PI Trustee
or Additional Indemnitee is not entitled to be indemnified by the PI Trust.
(c) The Trustees may purchase and maintain reasonable
amounts and types of insurance on behalf of an individual who is or was a PI
Trustee or Additional Indemnitee including against liability asserted against or
incurred by such individual in that capacity or arising from his or her status
as a PI Trustee, TAC member, Future Claimants' Representative, officer,
employee, agent or other representative.
4.7 TRUSTEES' LIEN. The Trustees and the Additional
Indemnitees shall have a first priority lien upon the PI Trust Assets to secure
the payment of any amounts payable to them pursuant to Section 4.6 above.
4.8 TRUSTEES' EMPLOYMENT OF EXPERTS. The Trustees may, but
shall not be required to, retain and/or consult with counsel, accountants,
appraisers, auditors and forecasters, and other parties deemed by the Trustees
to be qualified as experts on the matters submitted to them, and the written
opinion of or information provided by any such parties on any matters submitted
to them by the Trustees shall be full and complete authorization and protection
in respect of any action taken or not taken by the Trustees hereunder in good
faith and in accordance with the written opinion of or information provided by
any such party.
4.9 TRUSTEES' INDEPENDENCE. The Trustees shall not, during
the term of their service, hold a financial interest in, act as attorney or
agent for, or serve as any other professional for Reorganized AWI.
Notwithstanding the foregoing, any PI Trustee may serve, without any additional
compensation other than the per diem compensation to be paid by the PI Trust
pursuant to Section 4.5(a) above, as a director of Reorganized AWI. No PI
Trustee shall act as an attorney for any person who holds an asbestos claim.
4.10 BOND. The Trustees shall not be required to post any
bond or other form of surety or security unless otherwise ordered by the
Bankruptcy Court.
SECTION 5
TRUST ADVISORY COMMITTEE
5.1 MEMBERS. The TAC shall consist of five (5) members, who
shall initially be the persons named on the signature page hereof.
5.2 DUTIES. The members of the TAC shall serve in a
fiduciary capacity representing all holders of present Asbestos Personal Injury
Claims. The Trustees must consult with the TAC on matters identified in Section
2.2(e) above and in other provisions herein, and must obtain the consent of the
TAC on matters identified in Section 2.2(f) above. Where provided in the TDP,
certain other actions by the Trustees are also subject to the consent of the
TAC.
5.3 TERM OF OFFICE.
(a) Each member of the TAC shall serve until the earlier of
(i) his or her death, (ii) his or her resignation pursuant to Section 5.3(b)
below, (iii) his or her removal pursuant to Section 5.3(c) below, or (iv) the
termination of the PI Trust pursuant to Section 7.2 below.
(b) A member of the TAC may resign at any time by written
notice to the other members of the TAC, the Trustees and the Future Claimants'
Representative. Such notice shall specify a date when such resignation shall
take effect, which shall not be less than ninety (90) days after the date such
notice is given, where practicable.
(c) A member of the TAC may be removed in the event that he
or she becomes unable to discharge his or her duties hereunder due to accident,
physical deterioration, mental incompetence, or a consistent pattern of neglect
and failure to perform or to participate in performing the duties of such member
hereunder, such as repeated non-attendance at scheduled meetings, or for other
Exhibit 1.23-10
good cause. Such removal shall be made at the recommendation of the remaining
members of the TAC with the approval of the Bankruptcy Court.
5.4 APPOINTMENT OF SUCCESSOR.
(a) In the event of a vacancy caused by the resignation of
a TAC member, his or her successor shall be selected by the TAC member who is
resigning, unless the remaining members unanimously veto the selection, in which
case, the successor shall be selected by a unanimous vote of the remaining
members. If the remaining members cannot unanimously agree, the Bankruptcy Court
shall appoint the successor. In the event of a vacancy caused by removal or
death of a TAC member, or in the event that a resigning or retiring member does
not name his or her successor, the remaining members of the TAC by unanimous
vote shall name the successor. If the remaining members of the TAC cannot reach
unanimous agreement, the Bankruptcy Court shall appoint the successor.
(b) Each successor TAC member shall serve until the earlier
of (i) his or her death, (ii) his or her resignation pursuant to Section 5.3(b)
above, (iii) his or her removal pursuant to Section 5.3(c) above, or (iv) the
termination of the PI Trust pursuant to Section 7.2 below.
5.5 TAC'S EMPLOYMENT OF PROFESSIONALS.
(a) The TAC may but is not required to retain and/or
consult counsel, accountants, appraisers, auditors, forecasters, experts, and
financial and investment advisors, and such other parties deemed by the TAC to
be qualified as experts on matters submitted to the TAC (the "PROFESSIONALS").
The TAC and its Professionals shall at all times have complete access to the PI
Trust's officers, employees and agents, as well as to the Professionals retained
by the PI Trust, and shall also have complete access to all information
generated by them or otherwise available to the PI Trust or the Trustees. In the
absence of gross negligence, the written opinion of or information provided by
any Professional deemed by the TAC to be qualified as an expert on the
particular matter submitted to the TAC shall be full and complete authorization
and protection in support of any action taken or not taken by the TAC in good
faith and in accordance with the written opinion of or information provided by
the Professional.
(b) The Trust shall promptly reimburse, or pay directly if
so instructed, the TAC for all reasonable fees and costs associated with the
TAC's employment of legal counsel pursuant to this provision in connection with
the TAC's performance of its duties hereunder. The Trust shall also promptly
reimburse, or pay directly if so instructed, the TAC for all reasonable fees and
costs associated with the TAC's employment of any other Professional pursuant to
this provision in connection with the TAC's performance of its duties hereunder;
provided, however, that (i) the TAC has first submitted to the Trust a written
request for such reimbursement setting forth the reasons (A) why the TAC desires
to employ such Professional, and (B) why the TAC cannot rely on Professionals
retained by the Trust to meet the need of the TAC for such expertise or advice,
and (ii) the Trust has approved the TAC's request for reimbursement in writing.
If the Trust agrees to pay for the TAC Professional, such reimbursement shall be
treated as a Trust expense. If the Trust declines to pay for the TAC
Professional, it must set forth its reasons in writing. If the TAC still desires
to employ such Professional at Trust expense, the TAC and/or the Trustees shall
resolve their dispute pursuant to Section 7.13 below.
5.6 COMPENSATION AND EXPENSES OF TAC. The members of the
TAC shall receive compensation from the PI Trust for their services as TAC
members in the form of a reasonable hourly rate set by the Trustees for
attendance at meetings or other conduct of PI Trust business. The members of the
TAC shall also be reimbursed promptly for all reasonable out-of-pocket costs and
expenses incurred in connection with the performance of their duties hereunder.
Such reimbursement or direct payment shall be deemed a PI Trust expense. The PI
Trust shall include a description of the amounts paid under this Section 5.6 in
the accounts to be filed with the Bankruptcy Court and provided to the Trustees,
the Future Claimants' Representative, and Reorganized AWI pursuant to Section
2.2(c)(i).
Exhibit 1.23-11
5.7 PROCEDURES FOR CONSULTATION WITH AND OBTAINING THE
CONSENT OF THE TAC.
(A) CONSULTATION PROCESS.
(i) In the event the Trustees are required to
consult with the TAC pursuant to Section 2.2(e)
above or on other matters as provided herein,
the Trustees shall provide the TAC with written
advance notice of the matter under
consideration, and with all relevant
information concerning the matter as is
reasonably practicable under the circumstances.
The Trustees shall also provide the TAC with
such reasonable access to Professionals and
other experts retained by the PI Trust and its
staff (if any) as the TAC may reasonably
request during the time that the Trustees are
considering such matter, and shall also provide
the TAC the opportunity, at reasonable times
and for reasonable periods of time, to discuss
and comment on such matter with the Trustees.
(ii) The Trustees shall take into consideration the
time required for the TAC, if its members so
wish, to engage and consult with its own
independent financial or investment advisors as
to such matter.
(B) CONSENT PROCESS.
(i) In the event the Trustees are required to
obtain the consent of the TAC pursuant to
Section 2.2(f) above, the Trustees shall
provide the TAC with a written notice stating
that their consent is being sought pursuant to
that provision, describing in detail the nature
and scope of the action the Trustees propose to
take, and explaining in detail the reasons why
the Trustees desire to take such action. The
Trustees shall provide the TAC as much relevant
additional information concerning the proposed
action as is reasonably practicable under the
circumstances. The Trustees shall also provide
the TAC with such reasonable access to
Professionals and other experts retained by the
PI Trust and its staff (if any) as the TAC may
reasonably request during the time that the
Trustees are considering such action, and shall
also provide the TAC the opportunity, at
reasonable times and for reasonable periods of
time, to discuss and comment on such action
with the Trustees.
(ii) The TAC must consider in good faith and in a
timely fashion any request for its consent by
the Trustees, and must in any event advise the
Trustees in writing of its consent or its
objection to the proposed action within 30 days
of receiving the original request for consent
from the Trustees. The TAC may not withhold its
consent unreasonably. If the TAC decides to
withhold its consent, it must explain in detail
its objections to the proposed action. If the
TAC does not advise the Trustees in writing of
its consent or its objections to the action
within 30 days of receiving notice regarding
such request, the TAC's consent to the proposed
actions shall be deemed to have been
affirmatively granted.
(iii) If, after following the procedures specified in
this Section 5.7(b), the TAC continues to
object to the proposed action and to withhold
its consent to the proposed action, the
Trustees and/or the TAC shall resolve their
dispute pursuant to Section 7.13. However, the
burden of proof with respect to the validity of
Exhibit 1.23-12
the TAC's objection and withholding of its
consent shall be on the TAC.
SECTION 6
THE FUTURE CLAIMANTS' REPRESENTATIVE
6.1 DUTIES. The initial Future Claimants' Representative
shall be the individual identified on the signature pages hereto, namely Dean M.
Trafalet, Esquire. He shall serve in a fiduciary capacity, representing the
interests of the holders of future Asbestos Personal Injury Claims for the
purpose of protecting the rights of such persons. The Trustees must consult with
the Future Claimants' Representative on matters identified in Section 2.2(e)
above and on certain other matters provided herein, and must obtain the consent
of the Future Claimants' Representative on matters identified in Section 2.2(f)
above. Where provided in the TDP, certain other actions by the Trustees are also
subject to the consent of the Future Claimants' Representative.
6.2 TERM OF OFFICE.
(a) The Future Claimants' Representative shall serve until
the earlier of (i) his or her death, (ii) his or her resignation pursuant to
Section 6.2(b) below, (iii) his or her removal pursuant to Section 6.2(c) below,
or (iv) the termination of the PI Trust pursuant to Section 7.2 below.
(b) The Future Claimants' Representative may resign at any
time by written notice to the Trustees. Such notice shall specify a date when
such resignation shall take effect, which shall not be less than ninety (90)
days after the date such notice is given, where practicable.
(c) The Future Claimants' Representative may be removed by
the Bankruptcy Court in the event he or she becomes unable to discharge his or
her duties hereunder due to accident, physical deterioration, mental
incompetence, or a consistent pattern of neglect and failure to perform or to
participate in performing the duties hereunder, such as repeated non-attendance
at scheduled meetings, or for other good cause.
6.3 APPOINTMENT OF SUCCESSOR. A vacancy caused by
resignation shall be filled with an individual nominated prior to the effective
date of the resignation by the resigning Future Claimants' Representative, and a
vacancy caused by death or removal of the Future Claimants' Representative shall
be filled with an individual nominated by the Trustees, the TAC or both. In any
case, the nominee shall be subject to the approval of the Court.
6.4 FUTURE CLAIMANTS' REPRESENTATIVE'S EMPLOYMENT OF
PROFESSIONALS.
(a) The Future Claimants' Representative may but is not
required to retain and/or consult counsel, accountants, appraisers, auditors,
forecasters, experts, and financial and investment advisors, and such other
parties deemed by the Future Claimants' Representative to be qualified as
experts on matters submitted to the Future Claimants' Representative (the
"PROFESSIONALS"). The Future Claimants' Representative and his or her experts
shall at all times have complete access to the PI Trust's officers, employees
and agents, as well as to the Professionals retained by the PI Trust, and shall
also have complete access to all information generated by them or otherwise
available to the PI Trust or the Trustees. In the absence of gross negligence,
the written opinion of or information provided by any Professional deemed by the
Future Claimants' Representative to be qualified as an expert on the particular
matter submitted to the Future Claimants' Representative shall be full and
complete authorization and protection in support of any action taken or not
taken by the Future Claimants' Representative in good faith and in accordance
with the written opinion of or information provided by the Professional.
(b) The Trust shall promptly reimburse, or pay directly if
so instructed, the Future Claimants' Representative for all reasonable fees and
costs associated with the Future Claimants' Representative's employment of legal
counsel pursuant to this provision in connection with the Future Claimants'
Representative's performance of his or her duties hereunder. The Trust shall
also promptly reimburse, or pay directly if so instructed, the Future Claimants'
Representative for all reasonable fees and costs associated with the Future
Exhibit 1.23-13
Claimants' Representative's employment of any other Professionals pursuant to
this provision in connection with the Future Claimants' Representative's
performance of his or her duties hereunder; provided, however, that (i) the
Future Claimants' Representative has first submitted to the Trust a written
request for such reimbursement setting forth the reasons (A) why the Future
Claimants' Representative desires to employ the Professional, and (B) why the
Future Claimants' Representative cannot rely on Professionals retained by the
Trust to meet the need of the Future Claimants' Representative for such
expertise or advice, and (ii) the Trust has approved the Future Claimants'
Representative's request for reimbursement in writing. If the Trust agrees to
pay for the Future Claimants' Representative's Professional, such reimbursement
shall be treated as a Trust Expense. If the Trust declines to pay for the Future
Claimants' Representative's Professional, it must set forth its reasons in
writing. If the Future Claimants' Representative still desires to employ the
Professional at Trust expense, the Future Claimants' Representative and/or the
Trustees shall resolve their dispute pursuant to Section 7.13 below.
6.5 COMPENSATION AND EXPENSES OF THE FUTURE CLAIMANTS'
REPRESENTATIVE. The Future Claimants' Representative shall receive compensation
from the PI Trust in the form of the Future Claimants' Representative's normal
hourly rate for services performed. The PI Trust will promptly reimburse the
Future Claimants' Representative for all reasonable out-of-pocket costs and
expenses incurred by the Future Claimants' Representative in connection with the
performance of his or her duties hereunder. Such reimbursement or direct payment
shall be deemed a PI Trust expense. The PI Trust shall include a description of
the amounts paid under this Section 6.5 in the accounts to be filed with the
Bankruptcy Court and provided to the Trustees, the Future Claimants'
Representative, and Reorganized AWI pursuant to Section 2.2(c)(i).
6.6 PROCEDURES FOR CONSULTATION WITH AND OBTAINING THE
CONSENT OF THE FUTURE CLAIMANTS REPRESENTATIVE.
(a) CONSULTATION PROCESS.
(i) In the event the Trustees are required to
consult with the Future Claimants'
Representative pursuant to Section 2.2(e) above
or on any other matters specified herein, the
Trustees shall provide the Future Claimants'
Representative with written advance notice of
the matter under consideration, and with all
relevant information concerning the matter as
is reasonably practicable under the
circumstances. The Trustees shall also provide
the Future Claimants' Representative with such
reasonable access to Professionals and other
experts retained by the PI Trust and its staff
(if any) as the Future Claimants'
Representative may reasonably request during
the time that the Trustees are considering such
matter, and shall also provide the Future
Claimants' Representative the opportunity, at
reasonable times and for reasonable periods of
time, to discuss and comment on such matter
with the Trustees.
(ii) The Trustees shall take into consideration the
time required for the Future Claimants'
Representative, if he or she so wishes, to
engage and consult with his or her own
independent financial or investment advisors as
to such matter.
(b) CONSENT PROCESS.
(i) In the event the Trustees are required to
obtain the consent of the Future Claimants'
Representative pursuant to Section 2.2(f)
above, the Trustees shall provide the Future
Claimants' Representative with a written notice
stating that his or her consent is being sought
Exhibit 1.23-14
pursuant to that provision, describing in
detail the nature and scope of the action the
Trustees propose to take, and explaining in
detail the reasons why the Trustees desire to
take such action. The Trustees shall provide
the Future Claimants' Representative as much
relevant additional information concerning the
proposed action as is reasonably practicable
under the circumstances. The Trustees shall
also provide the Future Claimants'
Representative with such reasonable access to
Professional and other experts retained by the
PI Trust and its staff (if any) as the Future
Claimants' Representative may reasonably
request during the time that the Trustees are
considering such action, and shall also provide
the Future Claimants' Representative the
opportunity, at reasonable times and for
reasonable periods of time, to discuss and
comment on such action with the Trustees.
(ii) The Future Claimants' Representative must
consider in good faith and in a timely fashion
any request for his or her consent by the
Trustees, and must in any event advise the
Trustees in writing of his or her consent or
objection to the proposed action within 30 days
of receiving the original request for consent
from the Trustees. The Future Claimants'
Representative may not withhold his or her
consent unreasonably. If the Future Claimants'
Representative decides to withhold consent, he
or she must explain in detail his or her
objections to the proposed action. If the
Future Claimants' Representative does not
advise the Trustees in writing of his or her
consent or objections to the proposed action
within 30 days of receiving the notice from the
Trustees regarding such consent, the Future
Claimants' Representative's consent shall be
deemed to have been affirmatively granted.
(iii) If, after following the procedures specified in
this Section 5.7(b), the Future Claimants'
Representative continues to object to the
proposed action and to withhold its consent to
the proposed action, the Trustees and/or the
Future Claimants' Representative shall resolve
their dispute pursuant to Section 7.13.
However, the burden of proof with respect to
the validity of the Future Claimants'
Representative's objection and withholding of
his or her consent shall be on the Future
Claimants' Representative.
SECTION 7
GENERAL PROVISIONS
7.1 IRREVOCABILITY. The PI Trust is irrevocable.
7.2 TERMINATION.
(a) The PI Trust shall automatically terminate on the date
ninety (90) days after the first to occur of the following events:
(i) the Trustees decide to terminate the PI Trust
because (A) they deem it unlikely that new
asbestos claims will be filed against the PI
Trust, (B) all Asbestos Personal Injury Claims
duly filed with the PI Trust have been
liquidated and paid to the extent provided in
this PI Trust Agreement and the TDP or
Exhibit 1.23-15
disallowed by a final, non-appealable order, to
the extent possible based upon the funds
available through the Plan, and (C) twelve (12)
consecutive months have elapsed during which no
new asbestos claim has been filed with the PI
Trust; or
(ii) if the Trustees have procured and have in place
irrevocable insurance policies and have
established claims handling agreements and
other necessary arrangements with suitable
third parties adequate to discharge all
expected remaining obligations and expenses of
the PI Trust in a manner consistent with this
PI Trust Agreement and the TDP, the date on
which the Bankruptcy Court enters an order
approving such insurance and other arrangements
and such order becomes a final order; or
(iii) to the extent that any rule against
perpetuities shall be deemed applicable to the
PI Trust, twenty-one (21) years less ninety-one
(91) days pass after the death of the last
survivor of all of the descendants of the late
Joseph P. Kennedy, Sr., father of the late
President John F. Kennedy, living on the date
hereof.
(b) On the Termination Date, after payment of all the PI
Trust's liabilities have been provided for, all monies remaining in the PI Trust
estate shall be given to such organization(s) exempt from federal income tax
under section 501(c)(3) of the Internal Revenue Code, which tax-exempt
organization(s) shall be selected by the Trustees using their reasonable
discretion; provided, however, that (i) if practicable, the activities of the
selected tax-exempt organization(s) shall be related to the treatment of,
research on, or the relief of suffering of individuals suffering from asbestos
related lung disorders, and (ii) the tax-exempt organization(s) shall not bear
any relationship to Reorganized AWI within the meaning of section 468B(d)(3) of
the Internal Revenue Code. Notwithstanding any contrary provision of the Plan
and related documents, this Section 7.2(b) cannot be modified or amended.
7.3 AMENDMENTS. The Trustees, after consultation with the
TAC and the Future Claimants' Representative, and subject to the unanimous
consent of the TAC and the Future Claimants' Representative, may modify or amend
this PI Trust Agreement and the PI Trust By-laws. The Trustees, after
consultation with the TAC and the Future Claimants' Representative, and subject
to the consent of the TAC and the Future Claimants' Representative, may modify
or amend the TDP; provided, however, that no amendment to the TDP shall be
inconsistent with the provisions limiting amendments to that document provided
therein, and in particular the provisions limiting amendment of the Claims
Payment Ratio set forth in Section 2.5 of the TDP and of the Payment Percentage
set forth in Section 4.2 of the TDP. Any modification or amendment made pursuant
to this Article must be done in writing. Notwithstanding anything contained in
this PI Trust Agreement to the contrary, neither this PI Trust Agreement, the PI
Trust Bylaws, the TDP, nor any document annexed to the foregoing shall be
modified or amended in any way that could jeopardize, impair, or modify the
applicability of section 524(g) of the Bankruptcy Code, the efficacy or
enforceability of the injunction entered thereunder, or the PI Trust's qualified
settlement fund status under Section 468B of the Internal Revenue Code.
7.4 MEETINGS. The Trustees, the TAC, and the Future
Claimants' Representative, shall be deemed to have attended a meeting in the
event such person spends a substantial portion of the day conferring, in person
or by telephone conference call, on PI Trust matters with the TAC, the Future
Claimants' Representative, or Trustees, as applicable. A Trustee shall also be
deemed to have attended a meeting in the event he or she spends a substantial
portion of the day engaging in activities related to Reorganized AWI, including
attendance at its Board of Directors meetings. The Trustees, the TAC and the
Future Claimants' Representative shall have complete discretion to determine
whether a meeting, as described herein, occurred for purposes of Sections 4.5,
5.6, and 6.5 above.
Exhibit 1.23-16
7.5 SEVERABILITY. Should any provision in this PI Trust
Agreement be determined to be unenforceable, such determination shall in no way
limit or affect the enforceability and operative effect of any and all other
provisions of this PI Trust Agreement.
7.6 NOTICES. Notices to persons asserting claims shall be
given by first class mail, postage prepaid, at the address of such person, or,
where applicable, such person's legal representative, in each case as provided
on such person's claim form submitted to the PI Trust with respect to his or her
PI Trust Claim.
(a) Any notices or other communications required or
permitted hereunder to the following parties shall be in writing and delivered
at the addresses designated below, or sent by telex, telecopy or facsimile
pursuant to the instructions listed below, or mailed by registered or certified
mail, return receipt requested, postage prepaid, addressed as follows, or to
such other address or addresses as may hereafter be furnished in writing to each
of the other parties listed below in compliance with the terms hereof.
To the PI Trust through the Trustees:
To the TAC:
To the Future Claimants' Representative:
To Reorganized AWI:
(b) All such notices and communications if mailed shall be
effective when physically delivered at the designated addresses or, if
electronically transmitted, when the communication is received at the designated
addresses and confirmed by the recipient by return transmission.
7.7 SUCCESSORS AND ASSIGNS. The provisions of this PI Trust
Agreement shall be binding upon and inure to the benefit of AWI, the PI Trust,
the Trustees and Reorganized AWI, and their respective successors and assigns,
except that neither AWI, the PI Trust, the Trustees nor Reorganized AWI may
assign or otherwise transfer any of its, or their, rights or obligations under
this PI Trust Agreement except, in the case of the PI Trust and the Trustees, as
contemplated by Section 2.1 above.
7.8 LIMITATION ON CLAIM INTERESTS FOR SECURITIES LAWS
PURPOSES. Asbestos Personal Injury Claims, and any interests therein (a) shall
not be assigned, conveyed, hypothecated, pledged or otherwise transferred,
voluntarily or involuntarily, directly or indirectly, except by will or under
the laws of descent and distribution; (b) shall not be evidenced by a
certificate or other instrument; (c) shall not possess any voting rights; and
(d) shall not be entitled to receive any dividends or interest; provided,
Exhibit 1.23-17
however, that clause (a) of this Section 7.8 shall not apply to the holder of a
claim that is subrogated to a PI Trust Claim as a result of its satisfaction of
such PI Trust Claim.
7.9 ENTIRE AGREEMENT; NO WAIVER. The entire agreement of
the parties relating to the subject matter of this PI Trust Agreement is
contained herein and in the documents referred to herein, and this PI Trust
Agreement and such documents supersede any prior oral or written agreements
concerning the subject matter hereof. No failure to exercise or delay in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any further exercise thereof or of any other right,
power or privilege. The rights and remedies herein provided are cumulative and
are not exclusive of rights under law or in equity.
7.10 HEADINGS. The headings used in this PI Trust Agreement
are inserted for convenience only and do not constitute a portion of this PI
Trust Agreement, nor in any manner affect the construction of the provisions of
this PI Trust Agreement.
7.11 GOVERNING LAW. This PI Trust Agreement shall be
governed by, and construed in accordance with, the laws of the State of
Delaware, without regard to Delaware conflict of law principles.
7.12 SETTLOR REPRESENTATIVE AND COOPERATION. AWI is hereby
irrevocably designated as the Settlor, and it is hereby authorized to take any
action required of the Settlor in connection with the PI Trust Agreement. AWI
agrees to cooperate in implementing the goals and objectives of this PI Trust.
7.13 DISPUTE RESOLUTION. Any disputes that arise under this
PI Trust Agreement or under the TDP shall be resolved by submission of the
matter to an alternative dispute resolution ("ADR") process mutually agreeable
to the parties involved. Should any party to the ADR process be dissatisfied
with the decision of the arbitrator(s), that party may apply to the Bankruptcy
Court for a judicial determination of the matter. In either case, if the dispute
arose pursuant to the consent provision set forth in Section 5.7(b) (in the case
of the TAC) or Section 6.6(b) (in the case of the Future Claimants'
Representative), the burden of proof shall be on the party or parties who
withheld consent to show that the objection was valid. Should the dispute not be
resolved by ADR process within thirty (30) days after submission, the parties
are relieved of the requirement to pursue ADR prior to application to the
Bankruptcy Court. Notwithstanding anything else herein contained, to the extent
any provision of this PI Trust Agreement is inconsistent with any provision of
the Plan or the TDP, the Plan or the TDP shall control.
7.14 ENFORCEMENT AND ADMINISTRATION. The provisions of this
PI Trust Agreement and the TDP attached hereto shall be enforced by the
Bankruptcy Court pursuant to the Plan. The parties hereby further acknowledge
and agree that the Bankruptcy Court shall have exclusive jurisdiction over the
settlement of the accounts of the Trustees and over any disputes hereunder not
resolved by alternative dispute resolution in accordance with Section 7.13
above.
7.15 EFFECTIVENESS. This PI Trust Agreement shall not
become effective until it has been executed and delivered by all the parties
hereto.
7.16 COUNTERPART SIGNATURES. This PI Trust Agreement may be
executed in any number of counterparts, each of which shall constitute an
original, but such counterparts shall together constitute but one and the same
instrument.
Exhibit 1.23-18
IN WITNESS WHEREOF, the parties have executed this PI Trust
Agreement this _____ day of ________________________, _______.
ARMSTRONG WORLD INDUSTRIES, INC., SETTLOR, BY
Name:
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Title:
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TRUSTEES
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Exhibit 1.23-19
ASBESTOS CLAIMANTS' COMMITTEE
By:_____________________________________
TRUST ADVISORY COMMITTEE
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FUTURE CLAIMANTS' REPRESENTATIVE
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Dean M. Trafelet, Esq.
Exhibit 1.23-20