LIQUIDATING TRUST AGREEMENT Dated as of July 12, 2007 by and between ICON CASH FLOW PARTNERS L.P. SEVEN individually as Grantor and ICON CAPITAL CORP. as Managing Trustee and NRAI SERVICES, LLC as Resident Trustee
Exhibit 10.2
Dated
as of July 12, 2007
by
and
between
ICON
CASH
FLOW PARTNERS L.P. SEVEN
and
ICON
CAPITAL CORP.
as
Managing Trustee
and
NRAI
SERVICES, LLC
as
Resident Trustee
1
TABLE
OF CONTENTS
|
LIQUIDATING
TRUST
AGREEMENT..............................................................................................................................................................................
|
4
|
|
|
RECITALS..........................................................................................................................................................................................................................
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4
|
|
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ARTICLE
I: NAME AND
DEFINITIONS..........................................................................................................................................................................
|
5
|
|
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1.1
|
Name.......................................................................................................................................................................................................................
|
5
|
|
1.2
|
Certain
Terms
Defined..............................................................................................................................................................................................
|
5
|
|
ARTICLE
II: NATURE OF
TRANSFER............................................................................................................................................................................
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6
|
|
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2.1
|
Purpose
of
Trust........................................................................................................................................................................................................
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6
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2.2
|
Prohibited
Activities...................................................................................................................................................................................................
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7
|
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2.3
|
No
Reversion to the
Partnership.................................................................................................................................................................................
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7
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2.4
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Payment
of
Liabilities.................................................................................................................................................................................................
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7
|
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2.5
|
Xxxx
of Sale, Assignment, Acceptance and Assumption Agreement; Instruments
of Further
Assurance...........................................................................
|
7
|
|
2.6
|
Incidents
of
Ownership..............................................................................................................................................................................................
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7
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2.7
|
Notice
to Unlocated Holders of Partnership
Units........................................................................................................................................................
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7
|
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ARTICLE
III: BENEFICIARIES.........................................................................................................................................................................................
|
8
|
|
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3.1
|
Beneficial
Interests....................................................................................................................................................................................................
|
8
|
|
3.2
|
Rights
of
Beneficiaries...............................................................................................................................................................................................
|
8
|
|
3.3
|
No
Transfer of Interests of
Beneficiaries....................................................................................................................................................................
|
9
|
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3.4
|
Managing
Trustee as
Beneficiary................................................................................................................................................................................
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9
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ARTICLE
IV: DURATION AND TERMINATION OF
TRUST.........................................................................................................................................
|
9
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|
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4.1
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Duration....................................................................................................................................................................................................................
|
9
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4.2
|
Other
Obligations of the Managing Trustee upon
Termination.......................................................................................................................................
|
9
|
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ARTICLE
V: ADMINISTRATION OF TRUST
ASSETS....................................................................................................................................................
|
10
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|
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5.1
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Sale
of Trust
Assets...................................................................................................................................................................................................
|
10
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5.2
|
Transactions
with Related
Persons..............................................................................................................................................................................
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10
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5.3
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Payment
of Claims, Expenses and
Liabilities................................................................................................................................................................
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10
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5.4
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Interim
Distributions...................................................................................................................................................................................................
|
10
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5.5
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Final
Distribution........................................................................................................................................................................................................
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10
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5.6
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Reports
to Beneficiaries and
Others............................................................................................................................................................................
|
11
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5.7
|
Federal
Income Tax
Information.................................................................................................................................................................................
|
11
|
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5.8
|
Employment
of
Manager............................................................................................................................................................................................
|
11
|
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ARTICLE
VI: POWERS OF AND LIMITATIONS ON THE MANAGING
TRUSTEE.......................................................................................................
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12
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6.1
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Limitations
on the Managing
Trustee...........................................................................................................................................................................
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12
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6.2
|
Specific
Powers of the Managing
Trustee...................................................................................................................................................................
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12
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ARTICLE
VII: RESIDENT
TRUSTEE...............................................................................................................................................................................
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14
|
|
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7.1
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Generally...................................................................................................................................................................................................................
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14
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7.2
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Fees
and
Indemnity....................................................................................................................................................................................................
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16
|
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7.3
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Insurance..................................................................................................................................................................................................................
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16
|
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7.4
|
Miscellaneous............................................................................................................................................................................................................
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16
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ARTICLE
VIII: CONCERNING THE MANAGING TRUSTEE, EMPLOYEES AND
AGENTS.........................................................................................
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17
|
|
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8.1
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Generally...................................................................................................................................................................................................................
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17
|
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8.2
|
Reliance
by Managing
Trustee....................................................................................................................................................................................
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18
|
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8.3
|
Limitation
on Liability to Third
Persons........................................................................................................................................................................
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19
|
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8.4
|
Recitals.....................................................................................................................................................................................................................
|
19
|
|
8.5
|
Indemnification..........................................................................................................................................................................................................
|
19
|
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8.6
|
Rights
of Managing Trustees, Employees, Independent Contractors and Agents
to Own
Trust Units or Other Property and to Engage in Other
Business...
|
20
|
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ARTICLE
IX: PROTECTION OF PERSONS DEALING WITH THE MANAGING
TRUSTEE..........................................................................................
|
20
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2
|
9.1
|
Reliance
on Statements by the Managing
Trustee........................................................................................................................................................
|
20
|
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ARTICLE
X: REIMBURSEMENT TO THE MANAGING
TRUSTEE................................................................................................................................
|
21
|
|
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10.1
|
Expenses..................................................................................................................................................................................................................
|
21
|
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ARTICLE
XI: THE MANAGING TRUSTEE AND SUCCESSOR MANAGING
TRUSTEE...............................................................................................
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21
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11.1
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Number
and Qualification of Managing
Trustees..........................................................................................................................................................
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21
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11.2
|
Resignation
and
Removal...........................................................................................................................................................................................
|
21
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11.3
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Appointment
of
Successor..........................................................................................................................................................................................
|
22
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11.4
|
Acceptance
of Appointment by Successor Managing
Trustee.......................................................................................................................................
|
22
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11.5
|
Bonds.......................................................................................................................................................................................................................
|
22
|
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ARTICLE
XII: CONCERNING THE
BENEFICIARIES.....................................................................................................................................................
|
22
|
|
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12.1
|
Evidence
of Action by
Beneficiaries............................................................................................................................................................................
|
22
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12.2
|
Limitation
on Suits by
Beneficiaries.............................................................................................................................................................................
|
22
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12.3
|
Requirement
of
Undertaking.......................................................................................................................................................................................
|
22
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ARTICLE
XIII: MEETING OF
BENEFICIARIES...............................................................................................................................................................
|
23
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|
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13.1
|
Purpose
of
Meetings..................................................................................................................................................................................................
|
23
|
|
13.2
|
Meeting
Called by Managing
Trustee..........................................................................................................................................................................
|
23
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13.3
|
Meeting
Called on Request of
Beneficiaries.................................................................................................................................................................
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23
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13.4
|
Persons
Entitled to Vote at Meeting of
Beneficiaries....................................................................................................................................................
|
23
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13.5
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Quorum.....................................................................................................................................................................................................................
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23
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13.6
|
Adjournment
of
Meeting.............................................................................................................................................................................................
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23
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13.7
|
Conduct
of
Meeting...................................................................................................................................................................................................
|
23
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ARTICLE
XIV: AMENDMENTS.......................................................................................................................................................................................
|
24
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|
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14.1
|
Consent
of
Beneficiaries............................................................................................................................................................................................
|
24
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14.2
|
Effect
of
Amendment................................................................................................................................................................................................
|
24
|
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14.3
|
Managing
Trustee’s Declining to Execute
Documents..................................................................................................................................................
|
24
|
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ARTICLE
XV: MISCELLANEOUS
PROVISIONS............................................................................................................................................................
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24
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15.1
|
Filing
Documents.......................................................................................................................................................................................................
|
24
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15.2
|
Intention
of Parties to Establish
Trust..........................................................................................................................................................................
|
24
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15.3
|
Beneficiaries
Have No Rights or Privileges as Holders of Partnership
Units..................................................................................................................
|
24
|
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15.4
|
Laws
as to
Construction.............................................................................................................................................................................................
|
25
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15.5
|
Severability...............................................................................................................................................................................................................
|
25
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15.6
|
Notices.....................................................................................................................................................................................................................
|
25
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15.7
|
Counterparts.............................................................................................................................................................................................................
|
25
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EXHIBIT
A: Xxxx of Sale, Assignment, Acceptance and Assumption
Agreement.....................................................................................................................
|
27
|
|
3
This
LIQUIDATING TRUST AGREEMENT (this “Agreement”), dated as of July 12, 2007 (the
“Effective Date”), by and between ICON Cash Flow Partners L.P. Seven, a Delaware
limited partnership, as Grantor (the “Partnership”), ICON Capital Corp., a
Delaware corporation, as Managing Trustee (the “Managing Trustee”), and
NRAI Services, LLC, a Delaware limited liability company, as Resident Trustee
(the “Resident Trustee” and, with the Managing Trustee, the
“Trustees”).
RECITALS:
WHEREAS,
the Partnership was organized for the objectives and purposes of owning and
leasing, and otherwise dealing with equipment and other personal property;
and
WHEREAS,
ICON Capital Corp., a Delaware corporation (the “General Partner”) filed a
Certificate of Cancellation with Secretary of State of the State of Delaware
pursuant to the terms of its Third Amended and Restated Agreement of Limited
Partnership dated as of September 12, 1995, as amended on October 1,
1997 (the
“Partnership Agreement”); and
WHEREAS,
as of the date hereof, substantially all of the assets of the Partnership have
been sold or otherwise disposed of; and
WHEREAS,
the General Partner believes it to be in the best interest of the Partnership
to
complete the liquidation of the Partnership by transferring all remaining assets
of the Partnership (the “Retained Assets”) to a liquidating trust (the
“Liquidating Trust” or “Trust”) with ICON Capital Corp. serving as its initial
Managing Trustee, including cash reserves set aside for the contingent and
existing obligations of the Partnership and the Liquidating Trust (the “Cash
Reserves”); and
WHEREAS,
the Managing Trustee shall administer the Liquidating Trust pursuant to the
terms of this Agreement and, upon satisfaction of all liabilities and
obligations of the Partnership and the Liquidating Trust, the Managing Trustee
shall distribute the residue of the proceeds of the liquidation of the assets
of
the Partnership in accordance with the terms hereof.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the Partnership hereby agrees to grant, release,
assign, convey and deliver unto the Managing Trustee for the benefit of the
Beneficiaries (as hereinafter defined), all of the right, title and interest
of
the Partnership in and to the Retained Assets and Cash Reserves for the uses
and
purposes stated herein on the Effective Date, subject to the terms and
provisions set out below, and the Managing Trustee hereby agrees to accept
such
Retained Assets and Cash Reserves and such Trust, subject to the following
terms
and provisions:
4
ARTICLE
I
NAME
AND DEFINITIONS
1.1
Name. This Trust shall be known as the ICON Cash Flow Partners L.P.
Seven Liquidating Trust.
1.2
Certain Terms Defined. For all purposes of this instrument,
unless the context otherwise requires:
(a)
“AFFILIATE” shall mean, with respect to any Person, (a) any other Person
directly or indirectly controlling, controlled by or under common control with
such Person, (b) any officer, director or partner of such Person, (c) any other
Person owning or controlling 10% or more of the outstanding voting securities
of
such Person and (d) if such Person is an officer, director or partner, any
other
person for which such Person acts in such capacity.
(b)
“AGREEMENT” shall mean this instrument as originally executed or as it may from
time to time be amended pursuant to the terms hereof.
(c)
“BENEFICIAL INTEREST” shall mean each Beneficiary’s proportionate share of the
Trust Assets in the Trust determined by the ratio of the number of
Partnership Units held by the Initial Beneficiary on the close of
business on the Record Date in the Partnership over the total number of
Partnership Units existing on such Record Date in the Partnership and
thereafter each Beneficiary’s proportional beneficial interest in the Trust
represented by Trust Units.
(d)
“BENEFICIARIES” shall mean the holders of Trust Units from time to time on or
after the Record Date, including the Initial Beneficiaries and the Subsequent
Beneficiaries.
(e)
“GRANTOR” shall mean the Partnership.
(f)
“INITIAL BENEFICIARIES” shall mean the initial holders of Trust
Units.
(g)
“LIQUIDATING TRUST” shall mean the liquidating trust maintained by the Managing
Trustee holding the Trust Assets of the Partnership, identified as the “ICON
Cash Flow Partners L.P. Seven Liquidating Trust”; also referred to
herein as the “Trust.”
(h)
“MANAGER” shall mean such Person or Persons who have been employed by, or who
have contracted with, the Managing Trustee to assist in the management of the
Trust, and for the avoidance of doubt, the Manager may be the General Partner
or
any Affiliate of the General Partner.
5
(i)
“PARTNERSHIP UNITS” shall mean the limited and general partnership units in the
Partnership held by each of the Beneficiaries as of the Record
Date.
(j)
“PERSON” shall mean any natural person, partnership, trust, corporation,
association or other legal entity, including, but not limited to, the General
Partner and any Affiliate of the General Partner.
(k)
“RECORD DATE” shall mean the date selected by the Grantor for determination of
the holders of Partnership Units entitled to become Beneficiaries.
(l)
“SUBSEQUENT BENEFICIARIES” shall mean Beneficiaries as reflected on the books
and records of the Trust from time to time after the Effective Date, other
than
the Initial Beneficiaries.
(m)
“TRUST” shall mean a Delaware Statutory Trust pursuant to Chapter 38 of
Title 12 of the Delaware Code and created by the filing of a Certificate of
Trust with the Secretary of State of the State of Delaware.
(n)
“TRUST ASSETS” shall mean all the property held from time to time by the
Managing Trustee under this Agreement, which initially shall consist of the
Retained Assets of the Partnership granted, assigned and conveyed to the
Managing Trustee by the Partnership, the Cash Reserves, and, in addition, shall
thereafter include all proceeds and other receipts of, from, or attributable
to
any assets, causes of actions or claims held by the Trust.
(o)
“TRUST UNITS” shall mean those equal, undivided portions into which the
Beneficial Interests in the Trust Assets are divided, as evidenced on the books
and records of the Trust.
(p)
“TRUSTEE(S)” shall mean the original Trustee(s) under this Agreement and their
successor(s) and assignee(s), if any.
ARTICLE
II
NATURE
OF TRANSFER
2.1
Purpose of the Trust.
(a)
It is
expected that the Partnership shall dissolve and liquidate prior to fully
winding up its affairs, including, but not limited to, the sale of its remaining
assets, the collection of any receivables and the payment of any unsatisfied
debts, claims, liabilities, commitments, suits and other obligations, whether
contingent or fixed or otherwise (the “Liabilities”), except for such
liabilities and obligations for which the Partnership has previously established
reserves by the retention of the Cash Reserves as described in the recitals
hereto. The Trust hereby is organized for the sole purpose of winding up the
affairs of the Partnership as promptly as reasonably possible and with no
objective to continue or engage in the conduct of a trade or
business.
(b)
The
Cash Reserves and Retained Assets to be granted, assigned and conveyed to the
Managing Trustee as of the Effective Date will be held in the Trust, and the
Managing Trustee will: (i) further liquidate the Trust Assets as it deems
necessary to carry out the purpose of the Trust and facilitate distribution
of
the Trust Assets; (ii) protect, conserve and manage the Trust Assets in
accordance with the terms and conditions hereof; and (iii) distribute the Trust
Assets in accordance with the terms and conditions hereof.
(c)
It is
intended that the grant, assignment and conveyance of the Cash Reserves and
the
Retained Assets by the Partnership to the Managing Trustee pursuant hereto
shall
be treated for federal and state income tax purposes as if the Partnership
made
such distributions directly to the holders of Partnership Units. It is further
intended that for federal, state and local income tax purposes the Trust shall
be treated as a liquidating trust under Treasury Regulation Section
301.7701-4(d) and any analogous provision of state or local law, and the
Beneficiaries shall be treated as the owners of their respective share of the
Trust pursuant to Sections 671 through 679 of the Code and any analogous
provision of state or local law and shall be taxed on their respective share
of
the Trust’s taxable income (including both ordinary income and capital gains)
pursuant to Section 671 of the Code and any analogous provision of state or
local law. The Managing Trustee shall file all tax returns required to be filed
with any governmental agency consistent with this position, including, but
not
limited to, any returns required of grantor trusts pursuant to Treasury
Regulation Section 1.671-4(a). The Partnership agrees that a transfer agent
acting on its behalf may prepare and file applicable K-1’s with respect to the
Beneficiaries’ Partnership income. To the extent that the Managing
Trustee becomes liable for the payment of taxes, including withholding
taxes, with respect to income derived from the investment of funds held
hereunder or any payment made hereunder (collectively, the “Taxes”), the
Managing Trustee may pay such Taxes. The Managing Trustee may withhold from
any
payment of the Trust Assets such amount as the Managing Trustee estimates to
be
sufficient to provide for the payment of such Taxes not yet paid, and may use
the sum withheld for that purpose. The Managing Trustee shall be indemnified
and
held harmless against any liability for Taxes and for any penalties or interest
with respect to Taxes on such investment income or payments in the manner
provided herein.
6
2.2
Prohibited Activities. The Trust shall not continue or engage in the
conduct of any trade or business, and the Managing Trustee is expressly
prohibited from continuing or engaging, and shall have no power or authority
to
continue or engage in the conduct of any trade or business on behalf of the
Trust or the Beneficiaries, and all of the terms and conditions hereof shall
be
construed accordingly.
2.3
No Reversion to the Partnership. In no event shall any part of the
Trust Assets revert to or be distributed to the Partnership.
2.4
Payment of Liabilities. The Trust hereby agrees to assume all
Liabilities of the Partnership on the Effective Date. Should any Liability
be
asserted against the Trust as the transferee of the Trust Assets or as a result
of the assumption of the Liabilities, the Managing Trustee may use such part
of
the Trust Assets as may be necessary in contesting any such Liability or in
payment thereof. In no event shall the Managing Trustee, Beneficiaries or
employees or agents of the Trust be personally liable, nor shall any personal
property of such Persons or any other Trust Assets be subject to attachment,
in
the event the Trust Assets are not sufficient to satisfy the Liabilities
asserted against or payable out of the Partnership’s available Trust Assets in
the Trust.
2.5
Xxxx of Sale, Assignment, Acceptance and Assumption Agreement;
Instruments of Further Assurance. On the Effective
Date, the Partnership and the Trust shall execute a Xxxx of Sale, Assignment,
Acceptance and Assumption Agreement conveying the Retained Assets, Cash Reserves
and Liabilities to the Trust, a copy of which is attached as Exhibit A hereto.
After the dissolution of the Partnership, such Persons who shall have the right
and power to so act, will, upon reasonable request of the Managing Trustee,
execute, acknowledge, and deliver such further instruments and do such further
acts as may be necessary or proper to carry out effectively the purposes of
this
Agreement, to confirm or effectuate the transfer to the Managing Trustee of
any
property intended to be covered hereby, and to vest in the Managing Trustee,
its
successors and assigns, the estate, powers, instruments or funds in trust
hereunder.
2.6
Incidents of Ownership. The holders of Partnership Units as of the
Record Date shall be the Initial Beneficiaries of the Trust as holders of Trust
Units in the Trust, and the Managing Trustee shall retain only such
incidents of legal ownership as are necessary to undertake the actions and
transactions authorized herein.
2.7
Notice to Unlocated Holders of Partnership Units. If the Trust holds
Trust Assets for the benefit of unlocated holders of any Partnership Units,
due
notice shall be given to such unlocated holders of Partnership Units in
accordance with Delaware law.
7
ARTICLE
III
BENEFICIARIES
3.1
Beneficial Interests.
(a)
The
Beneficial Interest of each Initial Beneficiary hereof shall be determined
by
the Partnership in accordance with the Partnership’s list of Partnership Unit
holders as of the Record Date (the “List”). The Partnership will deliver the
List to the Managing Trustee promptly after the Record Date specifying the
Partnership Units of each Partner in the Partnership. Each
Partnership Unit owned by a Partner shall be converted into Beneficial Interests
in the Trust. For ease of administration, the List shall express the Beneficial
Interest of each Initial Beneficiary in terms of units and it is intended that
each unit shall represent one Trust Unit in the Trust.
(b)
In
the case of the Partnership Unit holders, book-entry or other records or any
other evidence of ownership satisfactory to the Managing Trustee will be deemed
to evidence the Beneficial Interest in the Trust of each such
Beneficiary.
(c)
If
any conflicting claims or demands are made or asserted with respect to the
ownership of any Trust Units, or if there should be any disagreement between
the
transferees, assignees, heirs, representatives or legatees succeeding to all
or
part of the interest of any Beneficiary resulting in adverse claims or demands
being made in connection with such Trust Units, then, in any of such events,
the
Managing Trustee shall be entitled, at its sole election, to refuse to comply
with any such conflicting claims or demands. In so refusing, the Managing
Trustee may elect to make no payment or distribution with respect to such Trust
Units, or to make such payment to a court of competent jurisdiction or an escrow
agent, and in so doing the Managing Trustee shall not be or become liable to
any
of such parties for their failure or refusal to comply with any of such
conflicting claims or demands, nor shall the Managing Trustee be liable for
interest on any funds which it may so withhold. The Managing Trustee shall
be
entitled to refrain and refuse to act until either (i) the rights of the adverse
claimants have been adjudicated by a final non-appealable judgment of a court
of
competent jurisdiction, (ii) all differences have been adjusted by valid written
agreement between all of such parties, and the Managing Trustee shall have
been
furnished with an executed counterpart of such agreement, or (iii) there is
furnished to the Managing Trustee a surety bond or other security satisfactory
to the Managing Trustee, as it shall deem appropriate, to fully indemnify it
as
between all conflicting claims or demands.
3.2
Rights of Beneficiaries. Each Beneficiary shall be entitled to
participate in the rights and benefits due to a Beneficiary hereunder according
to his Beneficial Interest. Each Beneficiary shall take and hold the same
subject to all the terms and provisions of this Agreement. The interest of
the
Beneficiary hereby is declared and shall be in all respects personal property
and upon the death of an individual Beneficiary, his Beneficial Interest shall
pass as personal property to his legal representative and such death shall
in no
way terminate or affect the validity of this Agreement, provided that the
Managing Trustee shall not be required to evidence a book entry transfer of
a
deceased Beneficiary’s Beneficial Interest to his legal representative until the
Managing Trustee shall have received Letters Testamentary or Letters of
Administration and written notice of the death of the deceased Beneficiary.
A Beneficiary shall have no title or right to, or possession, management or
control of, the Trust Assets except as herein expressly provided. No widower,
widow, heir, or devisee of any Person who may be a Beneficiary shall have any
right of dower, homestead, or inheritance, or of partition, or of any other
right, statutory or otherwise, in any property forming a part of Trust Assets
but the whole title to the Trust Assets shall be vested in the Managing Trustee
and the sole interest of the applicable Beneficiaries shall be the rights and
benefits given to such Persons under this Agreement.
8
3.3
No Transfer of Interests of Beneficiaries. No Beneficial Interest may
be transferred by any Beneficiary in person or by a duly authorized agent or
attorney, or by the properly appointed legal representatives of the
Beneficiary. No Beneficiary has authority or power to sell, assign,
transfer, encumber, or in any other manner dispose of his Beneficial Interest;
provided, however, that the Beneficial Interest shall be assignable or
transferable by will, intestate succession, or operation of law and, further
provided, that the executor or administrator of the estate of a Beneficiary
may
mortgage, pledge, grant a security interest in, hypothecate or otherwise
encumber, the Beneficial Interest held by the estate of such Beneficiary if
necessary in order to borrow money to pay estate, succession or inheritance
taxes or the expenses of administering the estate of the Beneficiary, upon
written notice to and upon written consent of the Managing Trustee, which
consent may be withheld in the Managing Trustee’s sole discretion.
Except
as
may be otherwise required by law, the Beneficial Interests of the Beneficiaries
hereunder shall not be subject to attachment, execution, sequestration or any
order of a court, nor shall such Beneficial Interests be subject to the
contracts, debts, obligations, engagements or liabilities of any Beneficiary,
but the Beneficial Interest of a Beneficiary shall be paid by the Managing
Trustee to the Beneficiary free and clear of all assignments, attachments,
anticipations, levies, executions, decrees and sequestrations and shall become
the property of the Beneficiary only when actually received by such
Beneficiary.
3.4
Managing Trustee as Beneficiary. The
Managing Trustee, either individually or in a representative or fiduciary
capacity, may be a Beneficiary to the same extent as if it were not a Managing
Trustee hereunder and shall have all the rights of a Beneficiary, including,
without limitation, the right to vote and to receive distributions, to the
same
extent as if it were not the Managing Trustee hereunder.
ARTICLE
IV
DURATION
AND TERMINATION OF TRUST
4.1
Duration. The existence of this Trust shall terminate upon the earliest
of (i) a termination required by the applicable laws of the State of Delaware,
(ii) the termination due to the distribution of all Trust Assets as provided
in
Section 5.5, or (iii) July 12, 2010 provided, however, that the Managing
Trustee, in its discretion, may extend the existence of this Trust to such
later
date as it may designate, if it determines that an extension is reasonably
necessary to wind up the affairs of this Trust.
4.2
Other Obligations of the Managing Trustee upon Termination. Upon
distribution of all the Trust Assets, the Managing Trustee shall pay or make
reasonable provision to pay all claims and obligations, including all
contingent, conditional or unmatured claims and obligations, known to the Trust,
but for which the identity of the claimant is unknown and not known to the
Trust, but based on the facts known to the Trust, are likely to arise or to
become known to the Trust within 10 years after the date of dissolution. Except
as otherwise specifically provided herein, upon the distribution of all Trust
Assets in the Trust, the Managing Trustee shall have no further duties or
obligations hereunder.
9
ARTICLE
V
ADMINISTRATION
OF TRUST ASSETS
5.1
Sale of Trust Assets. The Managing
Trustee is hereby authorized and directed, at such times as it may deem
appropriate, to transfer, assign, or otherwise dispose of all or any part of
the
Trust Assets as it deems appropriate at public auction or at private sale for
cash, securities or other property, or upon credit (either secured or unsecured
as the Managing Trustee shall determine, in its sole discretion).
5.2
Transactions with Related Persons. Notwithstanding any other provisions
of this Agreement, the Managing Trustee shall not knowingly, directly or
indirectly, sell or otherwise transfer all or any part of any Trust Assets
to,
or contract with, (i) itself or any other Trustee or an employee or agent
(acting in its or their individual capacities) of this Trust, or (ii) any Person
of which any Trustee, employee or agent of this Trust is an
Affiliate.
5.3
Payment of Claims, Expenses and Liabilities. Provided the Managing
Trustee has been advised in writing with respect to such claims, expenses,
charges, liabilities and obligations, the Managing Trustee shall pay from the
Trust Assets all claims, expenses, charges, liabilities, and obligations of
the
Trust Assets and all Liabilities relating to the Trust Assets and obligations
which the Managing Trustee specifically assumes and agrees to pay pursuant
to
this Agreement and such transferee liabilities which the Managing Trustee may
be
obligated to pay as transferee of the Trust Assets, including, without
limitation, interest, penalties, taxes, assessments, and public charges of
every
kind and nature and the costs, charges, and expenses connected with or growing
out of the execution or administration of this Trust and such other payments
and
disbursements as are provided in this Agreement or which may be determined
to be
a proper charge against the Trust Assets by the Managing Trustee.
5.4
Interim Distributions. At such times as may be determined by it in its
sole discretion, but no less frequently than annually, the Managing Trustee
shall distribute, or cause to be distributed, to the Beneficiaries, in
proportion to the number of Trust Units held by each Beneficiary relating to
the
Trust, such cash or other property comprising a portion of the Trust Assets
as
the Managing Trustee may, in its sole discretion, determine may be distributed
without detriment to the conservation and protection of the Trust Assets in
the
Trust.
5.5
Final Distribution. If the Managing Trustee determines that the
Liabilities and all other claims, expenses, charges, liabilities and obligations
of the Trust have been paid or discharged, or if the existence of the Trust
shall terminate pursuant to Section 4.1 hereof and not have been extended
pursuant to such Section 4.1, the Managing Trustee shall, consistent with the
conservation and protection of the Trust Assets, expeditiously distribute the
Trust Assets to the Beneficiaries pro rata according to the number of Trust
Units held by each Beneficiary in the Trust based on the list submitted to
the
Managing Trustee by the Partnership pursuant to Section 3.1 above, as such
list
may be amended. The Managing Trustee shall hold in the Trust and thereafter
make
disposition of all liquidating distributions and other payments due any
Beneficiaries who have not been located subject to applicable state laws
regarding escheat and abandoned property. It is understood that the Managing
Trustee and the Beneficiary’s bank in any funds transfer may rely solely upon
any account numbers or similar identifying number provided by the parties hereto
to identify (i) the Beneficiary, (ii) the Beneficiary’s bank, or (iii) an
intermediary bank. The Managing Trustee may apply any of the Trust Assets for
any payment order it executes using any such identifying number, even where
its
use may result in a person other than the Beneficiary being paid, or the
transfer of funds to a bank other than the Beneficiary’s bank, or an
intermediary bank designated.
10
5.6
Reports to Beneficiaries and Others. As soon as practicable after the
end of each taxable year of the Trust, the Managing Trustee shall file an
annual report under cover of Form 10-K with the U.S. Securities and Exchange
Commission (the “Commission”) showing the assets and liabilities of the Trust at
the end of each calendar year and the receipts and disbursements of the Managing
Trustee with respect to the Trust for such period covered by the report. The
annual report will also describe the changes in the assets of the Trust and
the
actions taken by the Managing Trustee during such period covered by the report.
The Managing Trustee will also file periodic reports under cover of Form 8-K
with the Commission whenever an event occurs for which a Form 8-K would have
been required to be filed for the Trust or whenever, in the opinion of the
Managing Trustee, any other material event relating to the Trust or its assets
has occurred. The
taxable year of the Trust shall end on December 31 of each year unless the
Managing Trustee deems it advisable to establish some other date as the date
on
which the taxable year of the Trust shall end.
5.7
Federal Income Tax Information. As soon as practicable after the close
of each taxable year, the Managing Trustee shall direct its transfer agent
to
mail to each Person who was a Beneficiary at the close of the year, a statement
showing on a Trust Unit basis in the Trust the dates and amounts of all
distributions made by the Managing Trustee, if any, income earned on Trust
Assets held by the Trust, if any, such other information as is reasonably
available to the Managing Trustee which the Managing Trustee determines may
be
helpful in determining the amount of gross income and expenses attributable
to
the Trust that such Beneficiary should include in such Beneficiary’s federal
income tax return for the preceding year and any other information as may be
required to be furnished under the tax laws. In addition, after receipt of
a
good faith written request, or in its discretion without such request or if
required by applicable law, such transfer agent (or if it cannot, the Managing
Trustee) shall furnish to any Person who has been a Beneficiary at any time
during the preceding year a statement containing such further information as
is
reasonably available to the transfer agent or Managing Trustee, respectively,
which shall be helpful in determining the amount of taxable income which such
Person should include in such Person’s federal income tax return.
5.8
Employment of Manager.
(a)
The
Managing Trustee shall be responsible for the general policies of the Trust
and
for the general supervision of the activities of the Trust conducted by all
agents, employees, advisors or managers of the Trust, including the Manager.
However, the Managing Trustee is not and shall not be required personally to
conduct the activities of the Trust, and consistent with its ultimate
responsibility as stated above, the Managing Trustee shall have the power to
appoint, employ or contract with any Person or Persons as the Managing Trustee
may deem necessary or proper for the transaction of the activities of the Trust,
including the Manager. The Managing Trustee may grant or delegate such authority
to the Manager as the Managing Trustee may in its sole discretion deem necessary
or desirable to carry out the purpose of the Trust without regard to whether
such authority is normally granted or delegated by trustees.
The
Managing Trustee shall have the power to determine the terms and compensation
of
the Manager or any other Person whom it may employ or with whom it may contract.
The Managing Trustee may exercise broad discretion in allowing the Manager
to
administer and regulate the operations of the Trust, to act as agent for the
Trust, to execute documents on behalf of the Managing Trustee, and to make
executive decisions which conform to general policies and general principles
previously established by the Managing Trustee.
(b)
The
Manager or other Persons shall not be required to administer the Trust as its
sole and exclusive function and may have other business interests and may engage
in other activities similar or in addition to those relating to the Trust,
including the rendering of advice or services of any kind to investors or any
other Persons and the management of other investments.
11
ARTICLE
VI
POWERS
OF AND LIMITATIONS ON THE MANAGING TRUSTEE
6.1
Limitations on the Managing Trustee.
Except as contemplated by this Agreement, the Managing Trustee shall not at
any
time, on behalf of the Trust or the Beneficiaries, enter into or engage in
any
trade or business, and no part of any Trust Assets shall be used or disposed
of
by the Managing Trustee in furtherance of any trade or business. Except as
the
Managing Trustee reasonably believes is consistent with and in furtherance
of
its obligations under this Agreement, the Managing Trustee shall be restricted
to the holding, collection and sale of the Trust Assets and the payment and
distribution thereof for the purposes set forth in this Agreement and to the
conservation and protection of the Trust Assets and the administration thereof
in accordance with the provisions of this Agreement. In no event shall the
Managing Trustee receive any property, make any distribution, satisfy or
discharge any claims, expenses, charges, liabilities and obligations or
otherwise take any action which is inconsistent with a complete liquidation
of
the Partnership within the meaning of the Internal Revenue Code of 1986, as
amended, Treasury Regulations promulgated thereunder, and rulings, decisions
and
determinations of the Internal Revenue Service and courts of competent
jurisdiction, or take any action which would jeopardize the status of the Trust
as a “liquidating trust” for federal income tax purposes within the meaning of
Treasury Regulation Section 301.7701-4(d). This limitation shall apply
regardless of whether the conduct of any such trade or business is deemed by
the
Managing Trustee to be necessary or proper for the conservation and protection
of the Trust Assets. The Managing Trustee shall not invest any of the cash
held
as Trust Assets, except that the Managing Trustee may invest in (i) direct
obligations of the United States of America or obligations of any agency or
instrumentality thereof which mature not later than one year from the date
of
acquisition thereof; (ii) money market deposit accounts, checking accounts,
savings accounts, or certificates of deposit, commercial paper rated not less
than A1/P1, or other time deposit accounts which mature not later than one
year
from the date of acquisition thereof which are issued by a commercial bank,
brokerage firm or savings institution organized under the laws of the United
States of America or any state thereof; or (iii) other temporary investments
not
inconsistent with the Trust’s status as a liquidating trust for tax purposes
(collectively, “Permitted Investments”). It is hereby acknowledged that the
Managing Trustee shall not be required to maximize the investment return on
the
Trust Assets during the term of this Agreement. The Managing Trustee shall
be
and hereby is relieved of all liability with respect to the purchasing, holding
or selling of Permitted Investments in accordance with the terms hereof. The
Managing Trustee is not responsible for any losses to the Trust which may occur,
including, without limitation, by reason of bank failure or the amount of the
Trust exceeding the Federal Deposit Insurance Corporation limits.
6.2
Specific Powers of the Managing
Trustee. Subject to the provisions of Section 6.1, the Managing Trustee
shall have the following specific powers in addition to any powers conferred
upon it by any other Section or provision of this Agreement or any statutory
laws of the State of Delaware; provided, however, that the enumeration of the
following powers shall not be considered in any way to limit or control the
power of the Managing Trustee to act as specifically authorized by any other
Section or provision of this Agreement and to act in such a manner as the
Managing Trustee may deem necessary or appropriate to conserve and protect
any
Trust Assets or to confer on the Beneficiaries the benefits intended to be
conferred upon them by this Agreement:
(a)
To
determine the nature and amount of the consideration to be received with respect
to the sale or other disposition of, or the grant of interests in, any Trust
Assets.
12
(b)
To
collect, liquidate or otherwise convert into cash, or such other property as
the
Managing Trustee deems appropriate, all property, assets and rights in any
Trust
Assets, and to pay, discharge and satisfy all other claims, expenses, charges,
liabilities, and obligations existing with respect to any Trust Assets, the
Trust or the Managing Trustee.
(c)
To
elect, appoint, engage, retain or employ any Persons as agents, representatives,
employees, or independent contractors (including, without limitation, real
estate advisors, investment advisors, accountants, transfer agents, custodians,
attorneys-at-law, managers, appraisers, brokers, or otherwise) in one or more
capacities, and to pay compensation from the Trust Assets for services in as
many capacities as such Person may be so elected, appointed, engaged, retained
or employed, to prescribe the titles, powers and duties, terms of service and
other terms and conditions of the election, appointment, engagement, retention
or employment of such Persons and, except as prohibited by law, to delegate
any
of the powers and duties of the Managing Trustee to any one or more Trustees,
agents, representatives, employers, independent contractors or other
Persons.
(d)
To
retain and set aside such funds out of the Trust as the Managing Trustee shall
deem necessary or expedient to pay, or provide for the payment of (i) unpaid
claims, expenses, charges, liabilities, and obligations of the Trust or the
Partnership, except to the extent that liabilities for which the Partnership
has
previously reserved Cash Reserves are satisfied with funds from said Cash
Reserves; (ii) contingencies; and (iii) the expenses of administering the Trust
Assets.
(e)
To do
and perform any and all acts necessary or appropriate for the conservation
and
protection of the Trust Assets, including acts or things necessary or
appropriate to maintain Trust Assets held by the Managing Trustee pending sale
or other disposition thereof or distribution thereof to the
Beneficiaries.
(f)
To
hold legal title to property of the Trust in the name of the Trust, or in the
name of the Managing Trustee, or of any other Person, without disclosure of
the
interest of the Trust therein.
(g)
To
cause any investments of any part of the Trust Assets to be registered and
held
in the name of any one or more of its names or in the names of a nominee or
nominees without increase or decrease of liability with respect
thereto.
(h)
To
institute or defend actions or declaratory judgments or other actions and to
take such other action, in the name of the Trust or the Partnership or as
otherwise required, as the Managing Trustee may deem necessary or desirable
to
enforce any instruments, contracts, agreements, causes of action, claims or
rights relating to or forming a part of the Trust Assets.
(i)
To
determine conclusively from time to time the value of and to revalue the
securities and other property of the Trust, in accordance with independent
appraisals or other information as it deems necessary or
appropriate.
(j)
To
cancel, terminate, or amend any instruments, contracts, agreements, obligations
or causes of action relating to or forming a part of any Trust Assets, and
to
execute new instruments, contracts, agreements, obligations or causes of action
notwithstanding that the terms of any such instruments, contracts, agreements,
obligations or causes of action may extend beyond the terms of this Trust,
provided that no such new instrument, contract, agreement, obligation or cause
of action shall permit the Managing Trustee to engage in any activity prohibited
by Section 6.1 of this Agreement.
13
(k)
To
vote by proxy or otherwise on behalf of the Beneficiaries and with full power
of
substitution all shares of stock and all securities held by the Managing Trustee
hereunder and to exercise every power, election, discretion, option and
subscription right and give every notice, make every demand, and to do every
act
or thing in respect to any shares of stock or any securities held by the
Managing Trustee which the Managing Trustee might or could do if the Managing
Trustee was the absolute owner thereof.
(l)
To
undertake or join in any merger, plan of reorganization, consolidation,
liquidation, dissolution, readjustment or other transaction of any corporation,
any of whose shares of stock or other securities, obligations, or properties
may
at any time constitute a part of any Trust Assets, and to accept the substituted
shares of stock, bonds, securities, obligations and properties and to hold
the
same in trust in accordance with the provisions hereof.
(m)
In
connection with the sale or other disposition or distribution of any securities
held by the Managing Trustee, to comply with the applicable federal and state
securities laws, and to enter into agreements relating to the sale or other
disposition or distribution thereof.
(n)
To
authorize transactions between corporations or other entities whose securities,
or other interests therein (either in the nature of debt or equity) are held
by
the Managing Trustee as part of any Trust Assets.
(o)
To
terminate and dissolve any entities owned by the Trust.
(p)
To
have a judicial settlement of its account of the Trust at any time to the extent
it determines necessary or advisable.
(q)
To
perform any act authorized, permitted, or required under any instrument,
contract, agreement, right, obligation or cause of action relating to or forming
a part of any Trust Assets whether in the nature of an approval, consent, demand
or notice thereunder or otherwise, unless such act would require the consent
of
the Beneficiaries in accordance with the express provisions of this
Agreement.
ARTICLE
VII
RESIDENT
TRUSTEE
7.1
Generally. The Resident Trustee shall be a Trustee for the sole and
limited purpose of fulfilling the requirements of Section 3807 of the
Delaware Statutory Trust Act. The Resident Trustee shall have the power and
authority to execute, deliver, acknowledge and file all documents required
to
maintain the existence of the Trust as required by the Delaware Statutory Trust
Act and shall accept service of legal process upon the Trust in the State of
Delaware. The Resident Trustee shall provide prompt notice to the Managing
Trustee of its performance of any such acts. The Managing Trustee shall
reasonably keep the Resident Trustee informed of any action taken by the
Managing Trustee with respect to the Trust that may affect the Resident Trustee.
The Resident Trustee shall not be entitled to exercise any powers, nor shall
the
Resident Trustee have any of the duties or liabilities, of the Managing Trustee.
The Resident Trustee shall not be liable for the acts or omissions of the
Managing Trustee or the Trust. The Resident Trustee shall owe no fiduciary
or
other duties to the Trust or the Beneficiaries except as expressly provided
for
in this Article VII. Unless required by the Delaware Court of Chancery, the
Resident Trustee shall serve without bond.
14
The
Resident Trustee accepts the trust hereby created and agrees to perform its
duties hereunder with respect to the same but only upon the terms of this
Agreement. The Resident Trustee shall not be personally liable to any Person
under any circumstances in connection with any of the transactions contemplated
by this Agreement, except that such limitation shall not relieve the Resident
Trustee of any personal liability it may have to the Beneficiaries for the
Resident Trustee’s own bad faith, willful misconduct or gross negligence. In
particular, but not by way of limitation:
(a) The
Resident Trustee shall not be personally liable for any error of judgment made
in good faith by any of its officers or employees;
(b) No
provision of this Agreement shall require the Resident Trustee to expend or
risk
its personal funds or otherwise incur any financial liability in the exercise
of
its rights or powers hereunder;
(c) Under
no circumstance shall the Resident Trustee be personally liable for any
representation, warranty, covenant, obligation or indebtedness of the Trust
or
the Managing Trustee; and
(d) The
Resident Trustee shall not be personally responsible for or in respect of the
validity or sufficiency of this Agreement or for the due execution hereof by
any
Person other than the Resident Trustee.
Except
as
otherwise expressly required herein, the Resident Trustee shall not have any
duty or liability with respect to the administration of the Trust, the
investment of the Trust’s Assets or the payment of distributions of income or
principal to the Trust’s Beneficiaries, and no implied obligations shall be
inferred from this Agreement on the part of the Resident Trustee. The Resident
Trustee shall not be liable for the acts or omissions of the Managing Trustee,
the Manager or any other Person who acts on behalf of the Trust, nor shall
the
Resident Trustee be liable for any act or omission by it in good faith in
accordance with the directions of the Managing Trustee.
The
Resident Trustee shall incur no liability to anyone in acting upon any
signature, instrument, notice, resolution, request, consent, order, certificate,
report, opinion, bond or other document or paper believed by it to be genuine
and believed by it to be signed by the proper party or parties. The Resident
Trustee may accept a certified copy of a resolution of the board of directors
or
other governing body of any Person as conclusive evidence that such resolution
has been duly adopted by such body and that the same is in full force and
effect. As to any fact or matter, the Resident Trustee may, for all purposes
hereof, rely on a certificate, signed by any director, the president, any vice
president, the treasurer, any assistant treasurer, the secretary or any
assistant secretary of the relevant party, and such certificate shall constitute
full protection to the Resident Trustee for any action taken or omitted to
be
taken by it in good faith in reliance thereon.
In
the
exercise or administration of the Trust hereunder, the Resident Trustee
(i) may act directly or through agents or attorneys, and the Resident
Trustee shall not be liable for the default or misconduct of such agents or
attorneys selected by it in good faith; and (ii) may, at the expense of the
Trust, consult with counsel, accountants and other skilled persons, and the
Resident Trustee shall not be liable for anything done, suffered or omitted
in
good faith by it in accordance with the advice or opinion of any such counsel,
accountants or other skilled persons selected by it in good faith.
Except
as
expressly provided in this Article VII, in accepting the Trust hereby
created, the Resident Trustee acts solely as Trustee hereunder and not in its
individual capacity, and all Persons having any claim against the Resident
Trustee by reason of the transactions contemplated by this Agreement shall
look
only to the Trust’s property for payment or satisfaction thereof.
15
7.2
Fees and Indemnity. The Resident Trustee shall be entitled to receive
from the Trust as compensation for its services hereunder such fees as have
been
separately agreed upon with the Trust in a separate agreement, which
compensation shall not be limited by any provision of law in regard to
compensation of a trustee of an express trust.
The
Trust
shall (i) reimburse the Resident Trustee for all reasonable expenses
incurred by it in connection with the execution and performance of its rights
and duties hereunder (including reasonable fees and expenses of counsel and
other experts): (ii) indemnify, defend and hold harmless the Resident
Trustee (in both its individual and Trustee capacities) and the officers,
directors, employees and agents of the Resident Trustee (collectively, including
the Resident Trustee in its individual capacity, the “RT Covered Persons”) from
and against any and all losses, damages, liabilities, claims, actions, suits,
costs, expenses, disbursements (including the reasonable fees and expenses
of
counsel), taxes and penalties of any kind and nature whatsoever, to the extent
that such expenses arise out of or are imposed upon or asserted at any time
against one or more RT Covered Persons with respect to the Resident Trustee’s
performance pursuant to this Agreement, the creation, operation, administration
or termination of the Trust, or the transactions contemplated hereby (all such
expenses as provided in clauses (i) and (ii) are herein referred to
collectively as “RT Expenses”); provided, however, that the Trust shall not be
required to indemnify an RT Covered Person for RT Expenses to the extent such
RT
Expenses result from the bad faith, willful misconduct or gross negligence
of
such RT Covered Person; and (iii) advance to each RT Covered Person RT
Expenses (including reasonable legal fees and expenses) incurred by such RT
Covered Person in defending any claim, demand, action, suit or proceeding,
prior
to the final disposition of such claim, demand, action, suit or proceeding,
upon
receipt by the Trust of a written request therefor and of an undertaking by
or
on behalf of the RT Covered Person to repay such amount if it shall ultimately
be determined that the RT Covered Person is not entitled to be indemnified
therefor under this Article VII. With respect to reimbursement or indemnity
provided hereunder, an RT Covered Person shall have a lien on the Trust’s Assets
prior to any rights in such property of the Beneficiaries or any other
Person.
7.3
Insurance. The Resident Trustee shall be permitted to obtain and
maintain fidelity and liability insurance covering the Resident Trustee
personally and insuring against acts of any agents, servants or others retained
or employed by the Resident Trustee and to retain insurance agents and brokers
in connection therewith, all at the expense of the Trust.
7.4
Miscellaneous. The Resident Trustee shall take such action or refrain
from taking such action under this Agreement as it may be directed in writing
by
the Managing Trustee from time to time; provided, however, that the Resident
Trustee shall not be required to take or refrain from taking any such action
if
it shall have determined, or shall have been advised by counsel, that such
performance is likely to incur personal liability for the Resident Trustee
or is
contrary to the terms of this Agreement or of any document contemplated hereby
to which the Trust is a party or is otherwise contrary to law.
16
To
the
extent that, at law or in equity, an RT Covered Person has duties (including
fiduciary duties) and liabilities relating to the Trust, the Beneficiaries
or
any other Person, such RT Covered Person acting under this Agreement shall
not
be liable to the Trust, the Beneficiaries or such other Persons for its good
faith reliance on the provisions of this Agreement. To the extent that
provisions of this Agreement restrict the duties and liabilities of an RT
Covered Person otherwise existing at law or in equity, such provisions are
agreed by the parties hereto to replace such other duties and liabilities of
such RT Covered Person.
The
Resident Trustee may resign and be discharged of the trust created by this
Agreement upon not less than 30 days’ prior written notice to the Managing
Trustee. Upon receiving such notice of resignation, the Managing Trustee shall
use its best efforts promptly to appoint a substitute or successor Resident
Trustee in the manner and meeting the qualifications hereinafter provided by
written instrument or instruments delivered to such resigning Resident Trustee
and the substitute or successor Resident Trustee. In addition, upon not less
than 30 days’ prior written notice to the Resident Trustee, the Managing
Trustee may remove the Resident Trustee, with or without cause, and appoint
a
successor Resident Trustee meeting the qualifications hereinafter provided
by
written instrument or instruments delivered to the Resident Trustee being
removed and to the substitute or successor Resident Trustee. Any resignation
or
removal of the Resident Trustee and appointment of a substitute or successor
Resident Trustee shall become effective only upon acceptance of the appointment
by the substitute or successor Resident Trustee. If no substitute or successor
Resident Trustee shall have been appointed within 30 days after notice of
such resignation or removal has been delivered, the Resident Trustee may apply
to a court of competent jurisdiction for the appointment of a successor Resident
Trustee. Such court may thereupon, after such notice, if any, as it may deem
proper, prescribe and appoint a successor Resident Trustee meeting the
qualifications provided for herein.
Any
Person into which the Resident Trustee may be merged or with which it may be
consolidated, or any Person resulting from any merger or consolidation to which
the Resident Trustee shall be a party, or any Person that succeeds to all or
substantially all of the corporate trust business of the Resident Trustee,
shall
be the successor Resident Trustee under this Agreement without the execution,
delivery or filing of any paper or instrument or further act to be done on
the
part of the parties hereto (except for the filing of an amendment to the Trust’s
certificate of trust if required by law), notwithstanding anything to the
contrary herein; provided, however, that such successor Resident Trustee shall
have its principal place of business in the State of Delaware and otherwise
meet
the requirements of applicable law.
ARTICLE
VIII
CONCERNING
THE MANAGING TRUSTEE, BENEFICIARIES, EMPLOYEES AND AGENTS
8.1
Generally. The Managing Trustee accepts and undertakes to discharge the
Trust created by this Agreement, upon the terms and conditions thereof on behalf
of the Beneficiaries. The Managing Trustee shall exercise such rights and powers
vested in it by this Agreement, and use the same degree of care and skill in
its
exercise as a prudent man would exercise or use under the circumstances in
the
conduct of his own affairs. No provision of this Agreement shall be construed
to
relieve the Managing Trustee from liability for its own willful misconduct,
knowingly and intentionally committed in bad faith, except that:
(a)
No
successor Managing Trustee shall be in any way responsible for the acts or
omissions of the Managing Trustee in office prior to the date on which it became
a Managing Trustee.
17
(b)
The
Managing Trustee shall not be liable for the performance of such duties and
obligations as are specifically set forth in this Agreement except for its
bad
faith or willful misconduct, and no implied covenants or obligations shall
be
read into this Agreement against the Managing Trustee.
(c)
The
Managing Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Managing Trustee and conforming to the requirements
of
this Agreement.
(d)
The
Managing Trustee shall not be liable for any act which the Managing Trustee
may
do or omit to do hereunder, or for any mistake of fact or law, or for any error
of judgment, or for the misconduct of any employee, agent, representative or
attorney appointed by it, or for anything that it may do or refrain from doing
in connection with this Agreement while acting in good faith; unless caused
by
or arising from gross negligence, willful misconduct, fraud or any other breach
of fiduciary duty of the Trustee or any of its employees, agents,
representatives or attorneys.
(e)
The
duties and obligations of the Managing Trustee shall be limited to and
determined solely by the express provisions of this Agreement, and no implied
duties or obligations shall be read into this Agreement against the Managing
Trustee.
8.2
Reliance by the Managing
Trustee.
Except as otherwise provided in Section 7.1
of this Agreement:
(a)
The
Managing Trustee may rely and shall be protected in acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, or other paper or document believed by it to be genuine and to have
been
signed or presented by the proper party or parties.
(b)
The
Managing Trustee may consult with legal counsel, auditors or other experts
to be
selected by it, including firms with which the Managing Trustee may be an
Affiliate, and the advice or opinion of such counsel, accountants, auditors
or
other experts shall be full and complete protection to the Managing Trustee,
the
employees and the agents of the Managing Trustee in respect of any action taken
or omitted or suffered by them in good faith and in reliance on, or in
accordance with, such advice or opinion.
(c)
Persons dealing with the Managing Trustee shall look only to the Trust Assets
to
satisfy any liability incurred by the Managing Trustee to such Person in
carrying out the terms of this Agreement, and the Managing Trustee shall have
no
personal obligation to satisfy any such liability.
(d)
As
far as practicable and except as expressly permitted above, the Managing Trustee
shall cause any written instrument creating an obligation of the Trust to
include a reference to this Agreement and to provide that neither the
Beneficiaries, the Managing Trustee nor their agents shall be liable thereunder
and that the other parties to such instrument shall look solely to the Trust
Assets for the payment of any claim thereunder or the performance thereof;
provided, however, that the omission of such provision from any such instrument
shall not render the Beneficiaries, the Managing Trustee, or their agents
liable, nor shall the Managing Trustee be liable to anyone for such
omission.
18
8.3
Limitation on Liability to Third Persons. No Beneficiary shall be
subject to any personal liability whatsoever, in tort, contract or otherwise,
to
any Person in connection with the Trust Assets or the affairs of the Trust;
and
neither the Managing Trustee nor any employee or agent of the Trust shall be
subject to any personal liability whatsoever, in tort, contract or otherwise,
to
any Person in connection with any Trust Assets or the affairs of the Trust,
except for such Person’s own willful misconduct, knowingly and intentionally
committed in bad faith; and all such other Persons shall look solely to any
Trust Assets for satisfaction of claims of any nature arising in connection
with
the affairs of the Trust. The Managing Trustee shall purchase and maintain
insurance as it deems reasonably necessary for the protection of all Trust
Assets, its Beneficiaries, the Trustee and its employees and agents in such
amount as the Managing Trustee shall deem adequate to cover all foreseeable
liability to the extent available at reasonable rates.
8.4
Recitals. Any written instrument creating an obligation of the Trust
shall be conclusively taken to have been executed or done by the Managing
Trustee, or the employee or agent of this Trust only in its capacity as Managing
Trustee under this Agreement or in its capacity as employee or agent of the
Trust.
8.5
Indemnification. The Managing Trustee and each of its employees and
agents, including the Manager, (each an “Indemnified Person” and collectively,
the “Indemnified Persons”) shall be indemnified out of all Trust Assets
against all liabilities and expenses, including amounts paid in satisfaction
of
judgments, in compromise or as fines and penalties, and all costs and expenses,
including, but not limited to, reasonable counsel fees and disbursements paid
or
incurred in investigating or defending against any such claim, demand, action,
suit or proceeding by the Indemnified Persons in connection with the defense
or
disposition of any action, suit or other proceeding by the Trust or any other
Person, whether civil or criminal, in which the Indemnified Person may be
involved or with which the Indemnified Person may be threatened while in office
or thereafter, by reason of its or his being or having been such a Managing
Trustee, employee or agent; provided, however, that the Indemnified Person
shall
not be entitled to such indemnification in respect of any matter as to which
the
Indemnified Person shall have been adjudicated to have acted in bad faith or
with willful malfeasance or in reckless disregard of the Indemnified Person’s
duties. The rights accruing to any Indemnified Person under these provisions
shall not exclude any other right to which the Indemnified Person may be
lawfully entitled. The Managing Trustee may make advance payments in connection
with indemnification under this Section, provided that the Indemnified Person
shall have given a written undertaking to repay any amount advanced to the
Indemnified Person and to reimburse the Trust in the event it is subsequently
determined in a final adjudication by a court of law that the Indemnified Person
is not entitled to such indemnification. The Managing Trustee may purchase
such
insurance as it believes, in the exercise of its discretion, adequately insures
that each Indemnified Person shall be indemnified against any such loss,
liability or damage pursuant to this Section. The rights accruing to any
Indemnified Person by reason of the foregoing shall not be deemed to exclude
any
other right to which he may legally be entitled nor shall anything else
contained herein restrict the right of the Managing Trustee to indemnify or
reimburse such Indemnified Person in any proper case even though not
specifically provided for herein, nor shall anything contained herein restrict
the right of any such Indemnified Person to contribution under applicable law.
As security for the timely and full payment and satisfaction of all of the
present and future obligations of the parties to the Managing Trustee under
this
Agreement, including, without limitation, the indemnity obligations hereunder,
whether joint or several, the Trust (and by accepting distributions hereunder,
each Beneficiary) hereby grants to the Managing Trustee a continuing security
interest in and to any and all of the Trust Assets, whether now existing or
hereafter acquired or created, together with the products and proceeds thereof,
all payments and other distributions with respect thereto, and any and all
investments, renewals, substitutions, modifications and extensions of any and
all of the foregoing. The Managing Trustee shall have all of the rights and
remedies of a secured party under the Uniform Commercial Code. In addition,
in
the event the Managing Trustee has not received any payment, indemnity,
reimbursement or other amount due it under this Agreement, then, notwithstanding
any other term or provision of this Agreement, the Managing Trustee may, in
its
discretion, set off and apply any of the Trust Assets as is required to pay
and
satisfy those obligations. Promptly after the receipt by the Managing Trustee
of
notice of any demand or claim or the commencement of any action, suit or
proceeding, the Managing Trustee shall, if a claim in respect thereof is to
be
made against any of the other parties hereto, notify such other parties thereof
in writing; but the failure by the Managing Trustee to give such notice shall
not relieve any party from any liability which such party may have to the
Managing Trustee hereunder. Notwithstanding any obligation to make payments
and
deliveries hereunder, the Managing Trustee may retain and hold for such time
as
it reasonably deems necessary such amount of the Trust Assets as it shall from
time to time, in its sole discretion, reasonably deem sufficient to indemnify
itself for any such loss or expense and for any amounts due it hereunder. Except
as required by law or as expressly provided herein, the Managing Trustee shall
be under no duty to institute any suit, or to take any remedial procedures
under
this Agreement, or to enter any appearance or in any way defend any suit in
which it may be made a defendant hereunder until it shall be indemnified as
provided above, except as expressly set forth herein.
19
8.6
Rights of Managing Trustees,
Employees, Independent Contractors and Agents to Own Trust
Units or Other Property and to Engage in Other
Business. Any Managing Trustee, employee, independent contractor or
agent, including the Manager, may own, hold and dispose of Trust Units for
its
individual account, and may exercise all rights thereof and thereunder to the
same extent and in the same manner as if it were not a Managing Trustee,
employee, independent contractor or agent. Any Managing Trustee, employee,
independent contractor or agent, including the Manager, may, in its personal
capacity or in the capacity of trustee, manager, officer, director, shareholder,
partner, member, advisor, employee of any Person or otherwise, have business
interests and holdings similar to or in addition to those relating to the Trust.
Subject to the provisions of Article V hereof, any Managing Trustee, employee,
independent contractor or agent of the Trust, including the Manager, may be
a
trustee, manager, officer, director, shareholder, partner, member, advisor,
employee or independent contractor of, or otherwise have a direct or indirect
interest in, any Person who may be engaged to render advice or services to
the
Trust, and may receive compensation from such Person as well as compensation
as
Trustee, employee, independent contractor or agent, including as Manager, or
otherwise hereunder so long as such interest is disclosed to the Managing
Trustee. None of these activities in and of themselves shall be deemed to
conflict with its duties as Managing Trustee, employee, independent contractor
or agent, including as Manager.
ARTICLE
IX
PROTECTION
OF PERSONS DEALING WITH THE MANAGING TRUSTEE
9.1
Reliance on Statements by the Managing
Trustee. Any Person dealing with the Managing Trustee shall be fully
protected in relying upon the Managing Trustee’s certificate or instrument
signed by the Managing Trustee that it has authority to take any action under
this Trust.
20
ARTICLE
X
REIMBURSEMENT
TO THE MANAGING TRUSTEE
10.1
Expenses. The Managing Trustee shall be reimbursed from the Trust
Assets for all expenses reasonably incurred by it in the performance of its
duties in accordance with this Agreement including the reasonable compensation
and out-of-pocket expenses of attorneys, accountants, appraisers, consultants
and other persons retained by the Managing Trustee or the Manager pursuant
to
the terms of this Agreement.
ARTICLE
XI
THE
MANAGING TRUSTEE AND SUCCESSOR MANAGING TRUSTEE
11.1
Number and Qualification of Managing
Trustees. Subject to the provisions of
Section 11.3 of
the Agreement relating to the period pending the appointment of a successor
Managing Trustee, there shall be one Managing Trustee of this Trust, which
shall
be a citizen and resident of or a corporation or other entity which is
incorporated or formed under the laws of a state of the United States. The
number of Managing Trustees may be increased or decreased from time to time
by
the Managing Trustee.
If
any
corporate Managing Trustee shall change its name, or shall reorganize or
reincorporate, or shall merge with or into or consolidate with any other
corporation or entity, bank or trust company, such corporate Managing Trustee
shall be deemed to be a continuing entity and shall continue to act as a
Managing Trustee hereunder with the same liabilities, duties, powers, titles,
discretions and privileges as are herein specified for a Managing
Trustee.
11.2
Resignation and Removal. Any Managing Trustee may resign and be
discharged from the Trust hereby created by giving written notice thereof to
any
remaining Managing Trustee or Trustees or by giving written notice to the
Beneficiaries. Such resignation shall become effective on the day specified
in
such notice or upon the appointment of such Managing Trustee’s successor and
such successor’s acceptance of such appointment, whichever is earlier. Any
Managing Trustee may be removed only “for cause,” by Beneficiaries having
an aggregate Beneficial Interest of at least a majority of the total Beneficial
Interests in the Trust. Removal “for cause” shall mean removal due to
the (a) gross negligence or fraud of the Managing Trustee, (b) willful
misconduct or willful breach of this Agreement by the Managing Trustee or (c)
bankruptcy, insolvency or inability of the Managing Trustee to meet its
obligations as the same come due. All obligations of the Managing Trustee
hereunder shall cease and terminate on the effective date of its resignation
or
removal and its sole responsibility thereafter shall be to hold the Trust Assets
for a period of thirty (30) calendar days following the effective date of
resignation or removal, at which time, if a successor Managing Trustee shall
have been appointed and have accepted such appointment in a writing to the
Beneficiaries, then upon written notice thereof given by the successor Managing
Trustee to the resigning Managing Trustee, the resigning Managing Trustee shall
deliver the Trust Assets to the successor Managing Trustee. If a successor
Managing Trustee shall not have been appointed within a thirty (30) day period
from the predecessor Managing Trustee’s resignation or removal, for any reason
whatsoever, the resigning Managing Trustee shall deliver the Trust Assets to
a
court of competent jurisdiction in the county in which the Trust Assets are
there being held and give written notice of the same to the parties
hereto.
The
resigning Managing Trustee shall be entitled to payment of any unpaid fees
(which shall be pro-rated as of the effective date of the resignation or
removal) and expenses and to reimbursement by the Beneficiaries out of the
Trust
Assets for any expenses incurred in connection with the transfer of the Trust
Assets pursuant to and in accordance with the provisions of this Section 11.2
of
this Agreement.
21
11.3
Appointment of Successor. Should at any time a Managing Trustee resign
or be removed, unless any remaining Managing Trustees shall decrease the number
of Managing Trustees of the Trust pursuant to Section 11.1 hereof, a vacancy
shall be deemed to exist and a successor shall be appointed by any remaining
Managing Trustees. If there are no remaining Managing Trustees, the
Beneficiaries may, pursuant to Article XIII hereof, call a meeting to appoint
a
successor Managing Trustee by vote of the Beneficiaries holding Trust Units
representing an aggregate of at least a majority of the total Beneficial
Interests in the Trust. If such a vacancy is not filled by any remaining
Managing Trustees within ninety (90) days, the remaining Managing Trustees
must
notify the Beneficiaries of their inability to fill such vacancy, and the
Beneficiaries may, pursuant to Article XIII hereof, call a meeting to appoint
a
successor Managing Trustee by Beneficiaries holding Trust Units representing
an
aggregate of at least a majority of the total Beneficial Interests in the Trust.
Pending the appointment of a successor Managing Trustee, the remaining Managing
Trustee or Trustees then serving may take any action in the manner set forth
in
this Agreement.
11.4
Acceptance of Appointment by Successor Managing
Trustee. Any successor Managing Trustee
appointed
hereunder shall execute an instrument accepting such appointment
hereunder. Thereupon such successor Managing Trustee shall, without
any further act, become vested with all the estates, properties, rights, powers,
trusts and duties of his or its predecessor in the Trust hereunder with like
effect as if originally named therein.
11.5
Bonds. No bond shall be required of the original Managing Trustee
hereunder, and no bond shall be required of any successor Managing Trustee
hereunder. If a bond is required by law, no surety or security with respect
to
such bond shall be required unless required by law.
ARTICLE
XII
CONCERNING
THE BENEFICIARIES
12.1
Evidence of Action by Beneficiaries. Whenever in this Agreement it is
provided that the Beneficiaries may take any action (including the making of
any
demand or request, the giving of any notice, consent, or waiver, the removal
of
a Trustee, the appointment of a successor Trustee, or the taking of any other
action), the fact that at the time of taking any such action such Beneficiaries
have joined therein may be evidenced (i) by any instrument or any number of
instruments of similar tenor executed by Beneficiaries in person or by agent
or
attorney appointed in writing, or (ii) by the record of the Beneficiaries voting
in favor thereof at any meeting of Beneficiaries duly called and held in
accordance with the provisions of Article XIII of this
agreement. Such meeting or writing may take any form permitted under
Delaware law.
12.2
Limitation on Suits by Beneficiaries. No Beneficiary shall have any
right by virtue of any provision of this Agreement to institute any action
or
proceeding at law or in equity against any party other than the Trustees upon
or
under or with respect to any Trust Assets or the agreements relating to or
forming part of any Trust Assets, and the Beneficiaries do hereby waive any
such
right.
12.3
Requirement of Undertaking. The Managing Trustee may request any court
to require, and any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Agreement, or in any suit against
the Managing Trustee for any action taken or omitted by it as Managing Trustee,
the filing by any party litigant in such suit of an undertaking to pay the
costs
of such suit, and such court may in its discretion assess reasonable costs,
including reasonable attorneys’ fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made
by
such party litigant; provided, however, that the provisions of this Section
shall not apply to any suit by the Managing Trustee.
22
ARTICLE
XIII
MEETING
OF BENEFICIARIES
13.1
Purpose of Meetings. A meeting of the Beneficiaries may be called at
any time and from time to time pursuant to the provisions of this Article for
the purposes of taking any action which the terms of this Agreement permit
a
Beneficiary having a specified aggregate Beneficial Interest to take either
acting alone or with the Managing Trustee.
13.2
Meeting Called by the Managing Trustee. The Managing
Trustee may at any time call a meeting of the Beneficiaries of the Trust to
be
held at such time and at such place as the Managing Trustee shall determine.
Written notice of every meeting of the Beneficiaries shall be given by the
Managing Trustee (except as provided in Section 13.3 of this Agreement), which
written notice will set forth the time and place of such meeting and in general
terms the action proposed to be taken at such meeting, and shall be mailed
not
more than sixty (60) nor less than fifteen (15) days before such meeting is
to
be held to all of the Beneficiaries of record not more than fifty (50)
days nor less than ten (10) days before the date of such meeting. The
notice shall be directed to the Beneficiaries at their respective addresses
as
they appear in the records of the Trust.
13.3
Meeting Called on Request of Beneficiaries. Within ten (10) days after
written request to the Managing Trustee by Beneficiaries holding Trust Units
representing at least a majority of the aggregate Beneficial Interests to call
a
meeting of all of the Beneficiaries, which written request shall specify in
reasonable detail the action proposed to be taken, the Managing Trustee shall
proceed under the provisions of Section 13.2 of this Agreement to call a meeting
of the Beneficiaries.
13.4
Persons Entitled to Vote at Meeting of Beneficiaries. Each Beneficiary
shall be entitled to vote at a meeting of the Beneficiaries of the Trust either
in person or by his proxy duly authorized in writing. The vote of each
Beneficiary shall be weighted based on the number of Trust Units held by each
Beneficiary determined pursuant to the list described in Section 3.1, as such
list is amended hereby. The signature of the Beneficiary on such written
authorization need not be witnessed or notarized.
13.5
Quorum. At any meeting of Beneficiaries, the presence in person or by
proxy of Beneficiaries holding Trust Units representing at least a majority
of
the aggregate Beneficial Interests shall constitute a quorum; but if less than
a
quorum be present, Beneficiaries having a majority of the Beneficial Interests
so present and so represented may adjourn such meeting with the same effect
and
for all intents and purposes as though a quorum had been present.
13.6
Adjournment of Meeting. Subject to Section 13.5 hereof, any meeting of
Beneficiaries of the Trust may be adjourned from time to time and a meeting
may
be held at such adjourned time and place without further notice.
13.7
Conduct of Meeting. At each meeting of the
Beneficiaries, the Beneficiaries present or represented by proxy may adopt
such
rules for the conduct of such meeting as they shall deem appropriate, provided
that such rules shall not be inconsistent with the provisions of this
Agreement.
23
ARTICLE
XIV
AMENDMENTS
14.1
Consent of Beneficiaries. At the direction or with the consent of
Beneficiaries holding Trust Units representing at least a majority of the
aggregate Beneficial Interests, or such greater percentage as shall be specified
in this Agreement for the taking of an action by the Beneficiaries under the
affected provision of this Agreement, the Managing Trustee shall promptly make
and execute a declaration amending this Agreement for the purpose of adding
any
material provisions to or changing in any material manner or eliminating any
of
the material provisions of this Agreement or amendments thereto as they apply
to
the Trust; provided, however, that no such amendment shall permit the Managing
Trustee to engage in any activity prohibited by Section 6.1 hereof or affect
the
Beneficiaries’ rights to receive their pro rata shares of the Trust Assets at
the time of distribution; provided further, however, that no consent of the
Beneficiaries shall be required with respect to any amendment made solely for
the purpose of facilitating the transferability by Beneficiaries of Trust Units
or to comply with applicable laws, including tax laws, so long as such amendment
has been approved by the Managing Trustee.
14.2
Effect of Amendment. Upon the execution of any such
declaration of amendment by the Managing Trustee, this Agreement shall be deemed
to be modified and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties, and immunities of the Managing
Trustee and the Beneficiaries under this Agreement with respect to the Trust
shall thereafter be determined, exercised and enforced hereunder subject in
all
respects to such modification and amendments, and all the terms and conditions
of any such amendment shall be thereby deemed to be part of the terms and
conditions of this Agreement for any and all purposes.
14.3
Managing Trustee’s Declining to Execute Documents. If,
in the reasonable opinion of the Managing Trustee, any document required to
be
executed pursuant to the terms of Section 14.2 hereof adversely affects any
right, obligation, immunity or indemnity in favor of the Managing Trustee under
this Agreement, the Managing Trustee may in its discretion decline to execute
such document.
ARTICLE
XV
MISCELLANEOUS
PROVISIONS
15.1
Filing Documents. This Agreement shall be filed or recorded in such
office or offices as the Managing Trustee may determine to be necessary or
desirable. A copy of this Agreement and all amendments thereof shall be
maintained in the office of the Managing Trustee. The Managing Trustee shall
file or record any amendment of this Agreement and any instrument which relates
to any change in the office of the Managing Trustee.
15.2
Intention of Parties to Establish Trust. This Agreement is not intended
to create and shall not be interpreted as creating a corporation, association,
partnership, or joint venture of any kind for purposes of federal income
taxation or for any other purpose.
15.3
Beneficiaries Have No Rights or Privileges as Holders of
Partnership Units. Except as expressly provided in
this Agreement or under applicable law, the Beneficiaries shall have no rights
or privileges attributable to their former status as holders of Partnership
Units.
24
15.4
Laws as to Construction. The Trustees, and the Beneficiaries (by their
acceptance of any distributions made to them pursuant to this Agreement),
consent and agree that this Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of Delaware, without reference
to the choice of law principles thereof.
15.5
Severability. In the event any provision of this Agreement or the
application thereof to any Person or circumstances shall be finally determined
by a court of proper jurisdiction to be invalid or unenforceable to any extent,
the remainder of this Agreement, or the application of such provision to persons
or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each provision of this
Agreement shall be valid and enforced to the fullest extent permitted by
law.
15.6
Notices. Any notice or other communication shall be in writing and
shall be deemed to have been sufficiently given, for all purposes, when
delivered personally or sent by fax or 48 hours after being sent by a
nationally-recognized courier or deposited in the U.S. mail, as certified or
registered mail, with postage prepaid.
ICON
Capital Corp.
|
000
Xxxxx Xxxxxx, 0xx
Xxxxx
Xxx
Xxxx, XX 00000
Fax: (000)
000-0000
Attn:
General Counsel
|
If
to the Resident Trustee:
NRAI
Services, LLC
000
Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxx,
XX 00000
Fax:
(000) 000-0000
Attn:
Xxxx Xxxxxxxx
If
to the Beneficiary:
The
address of such Beneficiary as shown in the records of the Trust.
15.7
Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
[The
remainder of this page is left intentionally blank.]
25
IN
WITNESS WHEREOF, the General Partner of the Grantor has caused this Agreement
to
be executed by an authorized officer, and the Trustees hereunder have executed
this Agreement, as Trustees and not as individuals, as of the date first set
forth herein.
GRANTOR:
ICON
CASH FLOW PARTNERS L.P. SEVEN
By:
ICON
Capital Corp., its General Partner
|
By: /s/
Xxxxxxx X. Xxxxxxx
Its: Chief
Financial Officer
|
MANAGING
TRUSTEE:
ICON
CAPITAL CORP.
|
By: /s/
Xxxxxxx X. Xxxxxxx
Its:
Chief Financial Officer
|
RESIDENT
TRUSTEE:
NRAI
SERVICES, LLC
By:
/s/ Xxxx Xxxxxxxx
Its: Vice-President
26
EXHIBIT
A
XXXX
OF
SALE, ASSIGNMENT, ACCEPTANCE
AND
ASSUMPTION AGREEMENT
27
