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EXHIBIT 99.3
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THE KEVCO PARTNERS INVESTMENT TRUST
(A Delaware Business Trust)
BUSINESS TRUST AGREEMENT
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Dated as of June 28, 1999
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OWNERSHIP PERCENTAGES ARE SUBJECT TO TRANSFER RESTRICTIONS.
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BUSINESS TRUST AGREEMENT
This Business Trust Agreement (this "Agreement"), is dated as of June
28, 1999, among Xxxxxxx Partners II, L.P., a Delaware limited partnership
("Xxxxxxx II"), Xxxxxxx Affiliates II, L.P., a Delaware limited partnership
("WAII"), Armbuck & Co., a Missouri general partnership ("Armbuck"), HC Crown
Corp., a Delaware corporation ("HC Crown"), Limit & Co., a Missouri general
partnership ("Limit"), Xxxxxxx X. & Xxxxxxxxx Xxxxxx Revocable Trust dated
7/3/92 ("Xxxxxx"), Xxxxxxx Investment Company, a Texas general partnership
("Xxxxxxx"), Xxxxx X. Xxxx ("Xxxx" and, together with Xxxxxxx II, WAII, Armbuck,
HC Crown, Limit, Xxxxxx, and Xxxxxxx, the "Grantors"), First Union Trust
Company, National Association, a national banking association, as trustee
(together with any successor trustee appointed pursuant hereto, the "Trustee"),
Xxxxxxxxx X. Xxxx, Xx., as the manager (together with any successor manager
appointed pursuant hereto, the "Manager"), and the persons listed as the
unitholders on SCHEDULE I hereto (the "Unitholders").
WHEREAS, the Grantors and the Trustee desire to establish this Trust (a
defined in Section 1.2) for the purpose of (i) holding, liquidating, or
disposing of (A) 2,700,000 shares of common stock, par value $0.01 per share
(the "Voting Common Stock"), of Kevco, Inc., a Texas corporation (together with
its successors, the "Company"), (B) warrants (collectively, the "Nonvoting
Warrants") to purchase 675,000 shares, 772,772 shares, and 295,455 shares
(collectively, the "Warrant Shares"), respectively, of the Company's nonvoting
common stock, par value $0.01 per share (the "Nonvoting Stock"), (C) a note in
the principal amount of $17 million issued by the Company (the "Tranche A
Note"), and (D) a note in the principal amount of $6.5 million issued by the
Company (the "Tranche B Note" and, together with the Tranche A Note, the
"Notes", and together with the Voting Common Stock, the Nonvoting Stock, the
Nonvoting Warrants, the Tranche A Note, and any capital stock or other
securities into which any of the foregoing may hereafter be changed or
converted, the "Securities"), and (ii) exercising voting and other rights in
respect of the Securities, all in accordance with the terms hereof;
WHEREAS, concurrently with the execution of this Agreement, the
Grantors desire to grant to the Trust all of their right, title, and interest in
and to the Voting Common Stock, the Nonvoting Warrants, and the Notes;
WHEREAS, the Grantors and the Trustee desire that the beneficial
interest in the assets of the Trust be divided into percentage interests of
beneficial interest in the Trust as provided herein; and
WHEREAS, the Trust is intended to be classified as a grantor trust for
purposes of Sections 671 through 679 of the Internal Revenue Code of 1986, as
amended (together with any successor statute, the "Code"), and any comparable
provisions of state or local law as to which the Unitholders are treated as the
owners of the assets and income of the Trust.
NOW, THEREFORE, the Grantors, the Unitholders, the Manager, and the
Trustee hereby declare that all money and property contributed to the Trust
shall be held and administered in trust for the benefit of the Unitholders
subject to the provisions hereof and further agree as follows:
ARTICLE I
ORGANIZATION
1.1 Formation. The Grantors and the Trustee hereby agree to form a
business trust pursuant to and in accordance with the provisions of the Delaware
Business Trust Act, 12 Del. C. Section 3801, et seq., (as amended from time to
time, the "Act"). The Trustee shall promptly file, on behalf of the Trust, a
Certificate of Trust (the "Certificate") conforming to the Act with the office
of the Secretary of State of Delaware. The term of the Trust shall begin upon
the filing of the Certificate and shall continue until
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dissolution, liquidation, and termination of the Trust in accordance with
Article X. This Agreement shall constitute the "governing instrument" (as
defined in the Act) of the Trust.
1.2 Name. The name of the trust created hereby is The Kevco Partners
Investment Trust (the "Trust"). The Manager may change the name of the Trust
from time to time and shall give prompt written notice thereof to the Trustee
and each Unitholder. In any such event, the Trustee shall promptly file in the
office of the Secretary of State of Delaware an amendment to the Certificate
reflecting such change of name.
1.3 Office. The office of the Trust shall be in the care of the
Trustee, addressed to First Union Trust Company, One Xxxxxx Square, Suite 102,
000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxx, Xx.,
or at such other address as the Manager may designate from time to time by
notice to the Trustee and the Unitholders.
1.4 Purpose. The purpose of the Trust shall be (i) to receive, hold,
liquidate, dispose of, sell, and exercise voting and other rights in respect of
the Securities, and (ii) to engage in such other activities as are permitted
hereby or are incidental or ancillary thereto as the Manager may from time to
time deem necessary, appropriate, or advisable, all upon the terms and subject
to the conditions set forth herein.
1.5 Appointment of Trustee. Except as otherwise permitted by this
Agreement, the number of Trustees shall be one. The Grantors hereby appoint the
Trustee as trustee of the Trust to satisfy the requirements of Section 3807 of
the Act, effective as of the date hereof, and to have only such rights, powers,
and duties as expressly provided to the Trustee under this Agreement. The
Trustee acknowledges receipt in trust from the Grantors, as of the date hereof,
of (i) 2,700,000 shares of Voting Common Stock, (ii) the Nonvoting Warrants, and
(iii) the Notes.
1.6 Declaration of Trust. The Trustee hereby declares that it will hold
the Securities and any other right, title, and interest of the Trust in and to
any property contributed to the Trust by the Unitholders or otherwise acquired
by the Trust, including all distributions, payments, and proceeds thereon
(collectively, the "Trust Property") in trust for the use and benefit of the
Unitholders upon the terms and subject to the conditions hereof.
ARTICLE II
CONTRIBUTIONS TO THE TRUST
2.1 Transfer of Voting Common Stock, Nonvoting Warrants, and Notes. The
Grantors hereby grant to the Trust all of their right, title, and interest in
and to the Voting Common Stock, the Nonvoting Warrants, and the Notes in
exchange for units of beneficial interest in the Trust ("Units"). SCHEDULE I
hereto sets forth in respect of each Unitholder, its contribution to the Trust,
its number of Units, and its undivided beneficial interest in the Trust
("Ownership Percentage").
2.2 Capital Contributions.
(a) In the event the Manager elects, in his sole discretion,
to exercise on behalf of the Trust one or more Nonvoting Warrants,
whether in whole or in part, the Manager shall provide each Unitholder
with a written notice of such election (the "Exercise Notice") offering
each Unitholder an opportunity to make a capital contribution to the
Trust for the purpose of paying the Purchase Price (as defined in the
Nonvoting Warrants) of any Nonvoting Stock to be issued upon the
exercise of such Warrant. Each Exercise Notice shall specify: (i)
whether the Nonvoting Warrant is being exercised in whole or in part;
(ii) if such exercise is in part, the number of shares of Nonvoting
Stock to be issued upon such exercise; (iii) the aggregate amount of
capital
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contributions required to pay the Purchase Price; (iv) such
Unitholder's pro rata share (based on its Ownership Percentage) of such
aggregate capital contributions (each Unitholder's share, its "Optional
Capital Contribution"); (v) that such Optional Capital Contribution is
optional and may be made or not made by such Unitholder in its
discretion; (vi) the date on which any such Optional Capital
Contribution is required to be made by such Unitholder; and (vii) the
account or accounts to which any such Optional Capital Contribution
shall be paid. Each Unitholder shall have five business days from the
date of such Exercise Notice to provide the Manager with written notice
of its election ("Unitholder Notice") as to whether or not it desires
to make its Optional Capital Contribution. In the event any Unitholder
fails to timely provide the Manager with its Unitholder Notice, such
Unitholder shall be deemed to have declined to make its Optional
Capital Contribution.
(b) In the event less than all of the Unitholders elect to
make their respective Optional Capital Contributions, the participating
Unitholders may, in addition to their respective Optional Capital
Contributions, make additional capital contributions (each, an
"Additional Capital Contribution" and, together with the Optional
Capital Contributions, the "Capital Contributions") on a pro rata basis
based upon their Ownership Percentages (excluding any non-participating
Unitholder) in an aggregate amount equal to the sum of all Optional
Capital Contributions not made by any non-participating Unitholders.
(c) All Capital Contributions shall be paid on or before the
date specified in the Exercise Notice, or, in the case of Additional
Capital Contributions only, such later date as may be selected by the
Manager. All Capital Contributions shall made by wire transfer of
immediately available funds to the account or accounts specified in the
Exercise Notice, and shall be deemed paid on the date received by the
Trust.
(d) Concurrently with the payment of any Optional or
Additional Capital Contribution by a Unitholder, such Unitholder shall
deliver its Trust Certificates (as defined in Section 3.1) to the
Manager. Promptly upon the receipt by the Manager of such Unitholder's
Trust Certificates, the Manager shall (i) record on the register of the
Trust the number of Units held by such Unitholder and its Ownership
Percentage after giving effect to such Optional or Additional Capital
Contributions and (ii) shall register and issue, execute, and deliver
to such Unitholder a new Trust Certificate evidencing such Units. The
Manager shall also revise SCHEDULE I hereto to reflect any Capital
Contributions made or not made by the Unitholders or any corresponding
adjustments to their respective Ownership Percentages (including the
reduction, if any, of the Ownership Percentage of any non-participating
Unitholder).
2.3 Title to Trust Property. Legal title to all Trust Property shall be
vested at all times in the name of the Trust, except where applicable law in any
jurisdiction requires title to any part of Trust Property to be vested in the
Trustee. No Unitholder shall have legal title to, or any interest in, any
specific Trust Property. Instead, each Unitholder shall have an undivided
beneficial interest in the Trust.
ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF UNITS
3.1 Trust Certificates. As of the date hereof, the Manager shall issue
and deliver or cause to be issued and delivered to each Unitholder a certificate
in the name of such Unitholder evidencing the number of Units held by such
Unitholder (each, a "Trust Certificate"). Each Trust Certificate shall be (i)
dated the date of issuance and (ii) executed by manual or facsimile signature by
the Manager. In the event any Unitholder makes a Capital Contribution such
Unitholder shall deliver its Trust Certificates to the Manager in accordance
with Section 2.2(d) and, promptly upon its receipt of such Trust Certificate,
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the Manager shall issue in accordance with Section 2.2(d) to such Unitholder a
new Trust Certificate evidencing the number of Units held by such Unitholder
after giving effect to such Capital Contribution.
3.2 Registration of Trust Certificates. The Manager shall maintain at
its office, or at the office of any agent appointed by him, a register for the
registration and Transfer (as defined in Section 3.4) of Trust Certificates and
the number of Units represented by each Trust Certificate.
3.3 Lost, Stolen, Destroyed, or Mutilated Trust Certificates. If (i)
any mutilated Trust Certificate is surrendered to the Manager, or (ii) the
Manager receives evidence to his satisfaction that any Trust Certificate has
been lost, stolen, or destroyed and upon proof of ownership satisfactory to the
Manager and the Trust, together with such security or indemnity as may be
requested by the Manager to save him harmless, the Manager shall execute and
deliver a new Trust Certificate for the same number of Units as the Trust
Certificate so mutilated, lost, stolen, or destroyed of like tenor and bearing a
different issue number, with such notations, if any, as the Manager shall
determine.
3.4 No Transfers Without Consent. No Unitholder may assign, sell,
dispose of, exchange, convey, gift, or otherwise transfer or pledge,
hypothecate, mortgage, or otherwise encumber, whether voluntarily,
involuntarily, by operation of law, or otherwise, any Unit or any right, title,
or interest therein or thereto (collectively, "Transfer") without the prior
written consent of a majority in interest of the Unitholders.
3.5 Death, Bankruptcy, etc. of a Unitholder. In the event of the death,
incompetence, insolvency, bankruptcy, dissolution, liquidation, or termination
of a Unitholder: (i) the Trust shall not be dissolved or terminated and the
Trust and its affairs shall continue until the dissolution, liquidation, and
termination thereof in accordance with Article X; (ii) such affected Unitholder
shall thereupon cease to be a Unitholder and, except as provided in Section 3.4,
no officer, partner, beneficiary, creditor, trustee, receiver, fiduciary, or
other legal representative and no estate or other successor in interest of such
affected Unitholder (whether by operation of law or otherwise) shall become or
be deemed to become a Unitholder; (iii) the Units of such affected Unitholder
shall not be subject to redemption in whole or in part prior to the dissolution,
liquidation, and termination of the Trust; (iv) the estate or other successor in
interest of such affected Unitholder shall be deemed a transferee of, and shall
be subject to all of the obligations in respect of, the Units of such affected
Unitholder as of the date of the applicable event; and (v) the legal
representative or successor in interest having lawful ownership of the Units
shall have the right to receive notices, reports, and distributions, if any, to
the same extent as would have been available to such affected Unitholder.
3.6 Issuance of New Trust Certificates Upon Transfer. Subject to
Section 3.4, promptly upon the receipt by the Manager of the transferor's Trust
Certificate, the Manager shall record on the register of the Trust the name of
the transferee as a Unitholder, the number of Units held by the transferee, and
its Ownership Percentage and shall register and issue, execute, and deliver to
such Unitholder a Trust Certificate evidencing such Units. In the event a
transferor Transfers (in accordance with the terms of this Agreement) only a
portion of its Units, the Manager shall register and issue to such transferor a
new Trust Certificate evidencing the number of Units then held by the
transferor. Subsequent to a Transfer and upon the issuance of one or more new
Trust Certificates, the Manager shall cancel the Trust Certificate surrendered
to it in connection with such Transfer. The Manager may treat the registered
holder of any Trust Certificate as shown on the register of the Trust as the
sole owner of the Units evidenced by such Trust Certificate. No fractional Units
shall be created by the Transfer of Units.
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ARTICLE IV
CONCERNING THE UNITHOLDERS
4.1 Authority of Unitholders. No Unitholder shall (i) participate in
the administration, control, or direction of the Trust or its affairs or have
the power to act for or on behalf of or to bind the Trust, such powers, to the
extent expressly set forth herein, being vested exclusively in the Manager or
the Trustee, as the case may be, or (ii) have the right to (A) vote, take part
in, or consent to any corporate or shareholders' action in respect of the
Company or any of its subsidiaries, (B) request that the Manager or the Trust
sell, transfer, assign, or otherwise dispose of, or refrain from selling,
transferring, assigning, or otherwise disposing of, any Securities, or (C)
request that the Manager or the Trust exercise or refrain from exercising any
voting or other rights in respect of the Securities.
4.2 Compliance with the Code. Each Unitholder shall (i) comply with the
applicable provisions of the Code and the regulations promulgated by the
Department of the Treasury thereunder (the "Treasury Regulations") in the manner
necessary to effect the intention of the parties that the Trust be treated as a
grantor trust pursuant to Sections 671 through 679 of the Code (and any
comparable provisions of state or local law) for tax purposes as to which the
Unitholders are treated as the owners of the assets and income of the Trust in
proportion to their respective Ownership Percentages, and that the Trust be
accorded such treatment until dissolution, liquidation, and termination of the
Trust in accordance with Article X, and (ii) take any action required by the
Code or the Treasury Regulations in order to maintain the classification of the
Trust as a grantor trust for federal income tax purposes.
4.3 Voting Rights; Meetings; Action or Consent of Unitholders. Except
as otherwise expressly provided in this Agreement or required by applicable law,
the Unitholders shall have no voting rights whatsoever. On any matter which,
pursuant to the express provisions of this Agreement or applicable law, is the
proper subject of a vote by the Unitholders, each Unitholder entitled to vote
shall be entitled to cast one vote (or fraction thereof) for each Unit (or
fraction thereof) which it holds. The exercise by the Unitholders of any of
their voting and other rights pursuant to and in accordance with this Agreement
shall not constitute participation in the administration, control, or direction
of the Trust or its affairs. No meeting of the Unitholders shall be required;
provided, however, that if the Manager desires to call a meeting of the
Unitholders, he shall provide via facsimile each Unitholder with at least 24
hours' written notice of such meeting. If any action or consent of the
Unitholders is required, it may be effected by a majority in interest of the
Unitholders unless a greater percentage is expressly required by the terms of
this Agreement.
4.4 Liability of Unitholders; Indemnification. The Unitholders shall be
entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit organized under the General Corporation Law
of the State of Delaware. The Unitholders shall not be liable for any
liabilities or obligations of the Trust, including any liability under Article
VIII. If any Unitholder (in its capacity as such) is made a party to any action,
suit, or proceeding to enforce any such liability, it shall not, on account
thereof, be held to any personal liability. To the fullest extent permitted by
law, the Trust shall indemnify and hold harmless each Unitholder from and
against any claim, loss, damage, liability, and expense (including reasonable
attorneys' fees, court costs, and costs of investigation and appeal) to which
such Unitholder may become subject by reason of its being or having been a
Unitholder, and shall upon the request of such Unitholder, advance or promptly
reimburse such Unitholder's reasonable costs of investigation, litigation, or
appeal, including reasonable attorneys' fees.
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ARTICLE V
DISTRIBUTIONS AND ALLOCATIONS
5.1 Distributions. All distributions of cash or other property of the
Trust shall be made to the Unitholders, pro rata, in accordance with their
respective Ownership Percentages immediately prior to such distribution. All
cash of the Trust (including, any cash received from the sale of Securities and
excluding cash resulting from capital contributions) shall be distributed to the
Unitholders promptly following receipt, less such amounts that the Manager
reasonably deems necessary to meet any accrued or foreseeable expenses,
expenditures, liabilities, or other obligations of the Trust. Trust Property
other than cash shall not be distributed prior to the Dissolution Triggering
Date (as defined in Section 10.1). As promptly as practicable after the
Dissolution Triggering Date, the Fair Market Value (as defined below) of all
Trust Property other than cash shall be determined, and following the completion
of such valuation, such non-cash Trust Property and any cash shall be
distributed, after compliance with Section 3808 of the Act as required by
Section 10.2, to the Unitholders in accordance with the formula set forth in the
first sentence of this Section 5.1. For purposes of this Section 5.1, the term
"Fair Market Value" means in respect of any non-cash Trust Property in the form
of securities (i) the average of the last sales price for any such securities
for the ten trading days immediately preceding the date of valuation if such
securities are listed on a national securities exchange, (ii) the average of the
mean between the closing bid and asked quotations in the over-the-counter market
for the ten trading days immediately preceding the date of valuation if such
securities are not listed on a national securities exchange but are traded in an
over-the-counter market, and (iii) the value determined by a nationally
recognized investment banking firm selected by the Liquidator (as defined in
Section 10.2) based upon such factors as such investment banking firm deems
appropriate; provided, however, that in the event any such securities require
the payment of an exercise price or similar payment, such payment shall reduce
on a dollar-for-dollar basis the Fair Market Value thereof. The determination of
any such investment banking firm shall be final and conclusive and all fees and
expenses of any such investment banking firm shall be borne by the Trust.
5.2 Tax Allocations. For United States federal income tax purposes,
allocations of items of income, gain, loss, deduction, expense, and credit for
each fiscal year of the Trust shall be allocated to the Unitholders in
accordance with their respective Ownership Percentages.
5.3 Method of Payment. All cash amounts payable to any Unitholder
pursuant to this Agreement shall be paid by the Trust to such Unitholder or a
nominee therefor by check payable to such Unitholder, mailed first class to the
address of such Unitholder appearing on the register of the Trust.
5.4 No Segregation of Funds; No Interest. Funds received by the Trustee
or the Manager hereunder need not be segregated in any manner except to the
extent required by applicable law and may be deposited under such general
conditions as may be prescribed by law, and neither the Trustee nor the Manager
shall be liable for any interest thereon.
ARTICLE VI
CONCERNING THE MANAGER
6.1 Administration of the Trust. The Trustee hereby delegates to the
Manager the responsibility for the general administration and direction of the
Trust and its affairs as may be necessary to assure that the Trust's affairs
conform to the terms of this Agreement. The Manager is hereby authorized to take
all actions required, permitted, or appropriate in his administration of the
Trust to be taken by him pursuant to the terms of this Agreement and the Act.
The Manager shall at all times discharge (or cause to be discharged) his
responsibilities pursuant to the terms hereof and otherwise administer the Trust
in the interest of the Unitholders.
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6.2 Specific Authority. In addition to the other rights, duties, and
authority of the Manager expressly stated elsewhere in this Agreement and
without limiting the generality of Section 6.1, the Manager:
(a) shall, as to all Securities held by the Trust, possess and
be entitled to exercise all rights of the holders of the Securities of
every kind, including (i) the right to vote (either in person or by
proxy) for election or removal of directors and all other matters as
may be voted upon by the holders of the Securities, including the right
to vote as to any merger, consolidation, or disposition of assets
involving the Company, (ii) the right to exercise any rights in respect
to the Warrants or the Nonvoting Warrants, (iii) the right to sell,
transfer, assign, or otherwise dispose of all or any portion of the
Securities, and (iv) the right to provide the Trustee with written
instructions in respect of any of the foregoing;
(b) may be a director or officer of the Company or any of its
subsidiaries and may vote all of the Securities in favor of his
election as director of the Company;
(c) may vote for or otherwise approve any agreement or other
arrangement between the Company and any affiliate of the Manager;
(d) may, with the prior written consent of a majority in
interest of the Unitholders, enter into, execute, deliver, and perform
any agreement, on behalf of and in the name of the Trust;
(e) may retain any or all assets that constitute a part of the
Trust Property, cause legal title to Trust Property to be held in the
name of the Trust, and invest or reinvest funds of the Trust and cause
such investment or any part thereof to be registered and held in the
name of the Trust;
(f) may, with the prior written consent of a majority in
interest of the Unitholders, initiate, prosecute, defend, supervise,
direct, compromise, or settle any claim, demand, action, suit, or
proceeding relating to the Trust or this Agreement, and, in connection
therewith, retain and employ such agents or professionals (including
professionals who are affiliates of the Manager) and confer upon them
such authority as a majority in interest of the Unitholders may deem
necessary, appropriate, or advisable, and pay reasonable compensation
therefor from the assets of the Trust (provided, that the Manager shall
not be required to take any such action, unless he shall have
sufficient Trust funds on hand therefor or unless he shall have been
indemnified to his satisfaction against all expenses and liabilities to
which he may, in his judgment, be subjected to by any such action);
(g) shall keep the Trustee reasonably informed of any actions
of the Manager or other events (of which the Manager has actual
knowledge) that affect the rights, duties, or liabilities of the
Trustee; and
(h) shall have the power to establish such classes or series
of Units as the Manager may determine is necessary, appropriate, or
advisable in his sole discretion.
6.3 Limitations on Authority. Notwithstanding any other provision of
this Agreement to the contrary, the Manager shall not (i) on behalf of the Trust
or the Unitholders, enter into or engage in any trade or business, and no Trust
Property shall be used or disposed of by the Manager in furtherance of any trade
or business or (ii) be entitled to undertake any act or exercise any discretion
that would cause the Trust to fail to be classified as a "trust" pursuant to
Section 7701 of the Code.
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6.4 No Duties Except as Specified Herein. The Manager shall not have
any duty or obligation in respect of the Trust, its affairs, or any Trust
Property or to otherwise take or refrain from taking any action under or in
connection with this Agreement or any document contemplated hereby to which the
Manager is a party, except as expressly provided by the terms of this Agreement
and no implied duties or obligations shall be read into this Agreement against
the Manager.
6.5 Time Commitment. Subject to Section 6.6, the Manager shall devote
such time, effort, and attention as may be reasonably necessary to administer
the affairs of the Trust; provided, however, that the Manager shall not be
expected to devote his full time, effort, or attention to the Trust.
6.6 Delegation. The Manager may delegate any or all of his rights,
powers, and authority under this Agreement to such persons as the Manager may
determine from time to time. In addition, the Manager may appoint, employ, or
contract with such persons as the Manager may deem necessary, desirable, or
appropriate for the administration of the affairs of the Trust.
6.7 Removal of the Manager. The Manager may be removed at any time with
or without cause by the consent or vote of a majority in interest of the
Unitholders; provided, however, that the Manager shall only be removed after the
appointment of a successor Manager who (i) is appointed by the consent or vote
of a majority in interest of the Unitholders and (ii) agrees to be bound by the
terms of this Agreement.
6.8 Resignation of the Manager. The Manager may resign at any time
without cause by giving at least 60 days' prior written notice to the Trustee
and each Unitholder.
6.9 Compensation; Reimbursement. The Manager shall not be entitled to
any compensation for serving as Manager; provided, however, the Manager shall be
entitled to reimbursement for reasonable out-of-pocket expenses incurred in
connection with the performance of his duties hereunder, including fees and
expenses of professionals.
6.10 Release of Liens. The Manager shall, at his sole cost and expense,
promptly take all action as may be necessary to discharge any lien on any Trust
Property that results from claims against the Manager personally and that is not
related to the administration of Trust Property.
6.11 Other Activities. Neither this Agreement nor any principle of law
or equity shall preclude or limit, in any respect, the right of the Manager or
his affiliates to engage in or derive profit or compensation from any other
activities or investments, nor give any Unitholder any right to participate or
share in such other activities or investments or any profit or compensation
derived therefrom.
ARTICLE VII
CONCERNING THE TRUSTEE
7.1 Acceptance of Trust. The Trustee hereby accepts the Trust and
agrees to perform its duties hereunder but only upon the terms hereof.
7.2 Limitations on Authority. The Trustee shall take no action for, on
behalf of, or in the name of the Trust except for such actions as are expressly
authorized by this Agreement or are in accordance with the written instructions
of the Manager given pursuant to the terms hereof. The Trustee shall (i) have no
authority, duties, or liabilities, except as expressly set forth in Section 7.3
or in any written instructions of the Manager given pursuant to the terms
hereof, (ii) have no implied authority or duties in respect of the affairs of
the Trust, and (iii) have no power, right, or authority to undertake any act
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or exercise any discretion that would cause the Trust to fail to be classified
as a "trust" under Section 7701 of the Code.
7.3 Duties of Trustee. The sole duties of the Trustee in respect of the
Trust and its affairs shall be: (i) to execute, deliver, acknowledge, and file
the Certificate and any amendments thereto required to be filed pursuant to
applicable law, (ii) to execute amendments to this Agreement, (iii) to execute,
deliver, acknowledge, and file any certificate of cancellation required to be
filed pursuant to applicable law, (iv) to comply in all material respects with
any written instructions of the Manager given pursuant to the terms hereof, (v)
to take any action required to be taken by the Trustee under Section 7.7, (vi)
to take such actions, if any, as may be required to be taken by the Trustee
under Section 11.3(b), and (vii) to provide the Manager with prompt written
notice of its performance of any of the foregoing duties.
7.4 No Duties Except as Specified Herein. The Trustee shall not have
any duty or obligation in respect of the Trust, its affairs, or any Trust
Property, or otherwise to take or refrain from taking any action under or in
connection with this Agreement or any document contemplated hereby to which the
Trustee is a party, except as expressly provided by the terms of this Agreement
or are in accordance with the written instructions of the Manager given pursuant
to the terms hereof, and no implied duties or obligations shall be read into
this Agreement against the Trustee.
7.5 Capacity. Except as expressly provided in Section 8.2, in accepting
the Trust, the Trustee acts solely as Trustee hereunder and not in its
individual capacity, and all persons having any claim against the Trustee by
reason of the transactions contemplated by this Agreement shall look solely to
the Trust Property for payment or satisfaction thereof.
7.6 Compensation and Expenses. The Trustee will receive compensation in
accordance with the fee arrangement between the Trustee and the Trust. In
addition, the Trustee shall be entitled to reimbursement for any and all
reasonable out-of-pocket expenses including, reasonable fees and expenses of
counsel and any filing fees incurred in connection with the performance of its
duties under Section 7.3.
7.7 Release of Liens. The Trustee shall, at its sole cost and expense,
promptly take all action as may be necessary to discharge any lien on any Trust
Property that results from claims against the Trustee personally and that is not
related to the ownership or administration of Trust Property.
ARTICLE VIII
EXCULPATION AND INDEMNIFICATION
8.1 Exculpation. Neither the Trustee nor the Manager shall be liable,
responsible, or accountable in damages or otherwise to the Trust, any
Unitholder, or any third person by reason of, arising from, or relating to this
Agreement, the administration of Trust Property, or any action taken or failure
to act on behalf of the Trust, except to the extent that any of the foregoing is
determined, by a final, nonappealable order of a court of competent
jurisdiction, to have been primarily caused by the fraud, gross negligence,
willful misconduct, or bad faith of the person claiming exculpation.
8.2 Indemnification of Trustee and Manager. To the fullest extent
permitted by applicable law, the Trust shall indemnify the Trustee, the Manager,
and their respective Delagatees, successors, assigns, agents, and servants from
and against any claim, loss, damage, liability, tax, or expense (including
reasonable attorneys' fees, court costs, and costs of investigation and appeal)
of any kind or nature whatsoever that may be imposed on, incurred by, or
asserted against any such indemnitee by reason of, arising from, or relating to
this Agreement, the administration of Trust Property, or any action taken or
failure to act on behalf of the Trust, except to the extent any of the foregoing
is determined by final, nonappealable order of a court of competent jurisdiction
to have been primarily caused by the fraud,
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gross negligence, willful misconduct, or bad faith of the person claiming
indemnification. Unless a determination has been made (by final, nonappealable
order of a court of competent jurisdiction) that indemnification is not
required, the Trust shall, upon the request of any indemnitee, advance or
promptly reimburse such indemnitee's reasonable costs of investigation,
litigation, or appeal, including reasonable attorneys' fees; provided, however,
that such indemnitee shall, as a condition of such indemnitee's right to receive
such advances and reimbursements, undertake in writing to promptly repay the
Trust for all such advancements or reimbursements if a court of competent
jurisdiction determines that such indemnitee is not then entitled to
indemnification under this Section 8.2. The written undertaking provided for in
the preceding sentence shall not be secured and the financial ability of such
indemnitee to repay an advance shall not be a prerequisite to the making of such
advance. The rights conferred by this Section 8.2 shall not be exclusive of any
other right that any person may have or hereafter acquire under any law,
agreement, or otherwise. The provisions of this Section 8.2 shall survive the
termination of this Agreement.
8.3 Limitation of Liability. Neither the Trustee nor the Manager shall
be personally liable for: (i) the validity or sufficiency of this Agreement, the
due execution hereof by the Grantors or the Unitholders, the form, validity,
value, or sufficiency of the Trust Property, or the validity and sufficiency of
any Trust Certificate; (ii) its good faith reliance on the provisions of this
Agreement and any other related agreements, certificates, instruments, or other
documents; and (iii) any representation, warranty, covenant, indebtedness, or
other liability or obligation of the Trust. The Manager shall not be personally
liable for any error of judgment made in good faith by any person to whom the
Manager has reasonably and in good faith delegated any of his day-to-day duties
in administering the Trust. The Trustee shall have no liability for the acts or
omissions of the Manager and the Manager shall have no liability for the acts or
omissions of the Trustee. No provision of this Agreement shall require either
the Trustee or the Manager to take any action, expend or risk its personal
funds, or otherwise incur any financial liability in the performance of its
rights, powers, or duties hereunder if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such
action, risk, or liability is not reasonably assured or provided to it.
8.4 Reliance. The Trustee, the Manager, and any other person to whom
the Trustee or the Manager has delegated its duties in administering the Trust
(each, a "Delegatee"), shall incur no liability to any person 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 person or persons. The Trustee,
the Manager, and any Delegatee may accept a certified copy of a resolution or
certificate of the board of directors, general partner, or other governing body
of any person who is not an individual as conclusive evidence that such
resolution or certificate has been duly adopted by such body and that the same
is in full force and effect. As to any fact or matter the manner of
ascertainment of which is not specifically prescribed herein, the Trustee, the
Manager, and any Delegatee may for all purposes hereof rely on a certificate,
signed by any officer, general partner, manager, trustee, or other person
reasonably believed to have similar authority of the relevant person, as to such
fact or matter, and such certificate shall constitute full protection to the
Trustee, the Manager, and any Delegatee for any action taken or omitted to be
taken by them in good faith in reliance thereon.
8.5 Advice of Counsel. In the administration of the Trust and in the
performance of its duties and obligations under this Agreement, each of the
Trustee, the Manager, and any Delegatee (i) may act directly or, at the expense
of the Trust, through agents or attorneys pursuant to agreements entered into
with any of them, and the Trustee, Manager, and any Delegatee shall not be
liable for the default or misconduct of such agents or attorneys if such agents
or attorneys shall have been selected by the Trustee, Manager, or any Delegatee
reasonably and in good faith; and (ii) may, at the expense of the Trust, consult
with counsel, accountants, and other skilled persons to be selected in good
faith and employed by it, and the Trustee, Manager, and any Delegatee shall not
be liable for anything done, suffered, or omitted
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reasonably and in good faith by them in accordance with the advice or opinion of
any such counsel, accountants, or other skilled persons.
ARTICLE IX
ACCOUNTING AND TAX MATTERS
9.1 Books of Account; Reports. The Manager shall keep or cause to be
kept complete and appropriate records and books of account in which shall be
entered all such transactions and other matters relative to the Trust's affairs
as are usually entered into records and books of account that are maintained by
persons conducting affairs of like character. Except as otherwise expressly
provided in this Agreement, such books and records shall be maintained in
accordance with the basis utilized in preparing the Trust's United States
federal income tax returns, which returns, if allowed by applicable law, may in
the discretion of the Manager be prepared on either a cash basis or accrual
basis. As soon as practicable after the end of each fiscal year, the Manager
shall deliver or cause to be delivered to each Unitholder a copy of the annual
financial statement of the Trust for such fiscal year.
9.2 Fiscal Year. The fiscal year of the Trust shall end on December 31
of each calendar year unless, for United States federal income tax purposes,
another fiscal year is required. The Trust shall have the same fiscal year for
United States federal income tax purposes and for accounting purposes.
9.3 Tax Status of the Trust. The Trust is intended to be treated, and
shall be construed, as a trust pursuant to Section 301.7701-4 of the Treasury
Regulations and as a grantor trust subject to the provisions of Subchapter J,
Subpart E of the Code owned by each Unitholder as grantor in proportion to its
respective Ownership Percentage.
9.4 Tax Returns. In accordance with Section 1.671-4(a) of the Treasury
Regulations, the Manager shall prepare and file or cause to be prepared and
filed annual information tax returns (Form 1041) with the Internal Revenue
Service or any successor thereto; provided, however, that items of income,
deduction, and credit attributable to the Trust will not be reported on the Form
1041. Instead, the Manager will attach to the Form 1041 a separate statement
showing the items of income, deduction, and credit attributable to the Trust and
detailing the allocation of such items to the Unitholders. As soon as
practicable after the end of each calendar year (and within the time required by
applicable law), the Manager shall cause to be prepared and mailed to each
Unitholder such information in respect of the Trust as shall be reasonably
necessary for such Unitholder to complete and file its federal, state, and local
income and other tax returns.
9.5 Withholding. Notwithstanding any other provision of this Agreement
to the contrary, the Manager may from time to time withhold from any
distribution from the Trust to any person such amounts as may be sufficient to
pay any tax or other charge under any federal, state, or local tax law that has
been or may be imposed on such person or upon the Trust in respect of any such
distribution.
ARTICLE X
DISSOLUTION AND TERMINATION
10.1 Dissolution. The Trust shall dissolve upon the first to occur of
the following events:
(a) the election of the Manager to dissolve the Trust;
(b) the sale or other final disposition by the Manager of all
or substantially all of the assets of the Trust;
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(c) the election by a majority in interest of the Unitholders
to dissolve the Trust;
(d) the bankruptcy, dissolution, death, incapacity,
resignation, or removal of the Manager, unless within 30 days of the
occurrence of any such event a majority in interest of the Unitholders
agree in writing to continue the affairs of the Trust and to the
appointment, effective as of the date of such event, of a successor
Manager;
(e) the bankruptcy, dissolution, termination, resignation, or
removal of the Trustee, unless a successor Trustee is appointed in
accordance with Section 11.3;
(f) the bankruptcy, dissolution, or termination of Xxxxxxx II
(or any transferee of all of Xxxxxxx II's Units), unless within 10 days
of the occurrence of any such event the remaining Unitholders
unanimously agree in writing to continue the affairs of the Trust; or
(g) the final, nonappealable judgment of a court of competent
jurisdiction that the Trust be dissolved (the date on which the first
to occur of the events set forth in clauses (a) through (g) of this
Section 10.1 being the "Dissolution Triggering Date").
10.2 Accounting on Dissolution. From and after the Dissolution
Triggering Date, the Manager shall act as liquidator of the Trust (the
"Liquidator") unless the Trust is dissolved pursuant to Section 10.1(d) or the
Manager is otherwise unwilling to act as Liquidator, in which case the
Liquidator shall be appointed by a majority in interest of the Unitholders. On
the Dissolution Triggering Date the books of the Trust shall be closed, and a
proper accounting of the Trust's assets and liabilities shall be made by the
Liquidator, all as of the most recent practicable date. The expenses incurred by
the Liquidator in connection with the dissolution, liquidation, and termination
of the Trust shall be borne by the Trust.
10.3 Termination. As expeditiously as practicable, but in no event
later than one year (except as may be necessary to realize upon any material
amount of property that may be illiquid), after the Dissolution Triggering Date,
the Liquidator shall, in accordance with Section 3808 of the Act, cause the
Trust to pay or make reasonable provision to pay all claims and obligations,
including all contingent, conditional or unmatured claims and obligations, known
to the Trust and all claims and obligations that are known to the Trust but for
which the identity of the claimant is unknown. If there are sufficient assets,
such claims and obligations shall be paid in full and any such provision for
payment shall be made in full. If there are insufficient assets, such claims and
obligations shall be paid or provided for according to their priority, ratably
to the extent of assets available therefor. To the extent that cash required for
the foregoing purposes is not otherwise available, the Liquidator may sell
property, if any, of the Trust for cash. Thereafter, all remaining cash or other
property, if any, of the Trust shall be distributed to the Unitholders in
accordance with the provisions of Section 5.1. At the time final distributions
are made in accordance with Section 5.1, the Trustee shall file a certificate of
cancellation in accordance with the Act, and the legal existence of the Trust
shall terminate.
10.4 No Other Cause of Dissolution. The Trust shall not be dissolved,
or its legal existence terminated, for any reason whatsoever except as expressly
provided in this Article X.
10.5 Merger. The Trust may, with the prior written consent of the
Manager and the consent or vote of a majority in interest of the Unitholders,
adopt a plan of merger and engage in any merger permitted by applicable law.
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ARTICLE XI
SUCCESSOR AND ADDITIONAL TRUSTEES
11.1 Resignation of Trustee. The Trustee may resign at any time without
cause by giving at least 60 days' prior written notice to the Manager and each
Unitholder, such resignation to be effective upon the acceptance of appointment
by a successor Trustee in accordance with Section 11.3.
11.2 Removal of Trustee. The Manager may remove the Trustee at any time
with or without cause by an instrument in writing delivered to the Trustee, such
removal to be effective upon the acceptance of appointment by a successor
Trustee in accordance with Section 11.3.
11.3 Appointment of Successor Trustee.
(a) In case of the bankruptcy, dissolution, termination,
resignation, or removal of the Trustee, the Manager may appoint a
successor Trustee; provided, however, that if the Trustee is the sole
Trustee, such successor Trustee shall (i) comply with Section 3807 of
the Act and (ii) be a bank or trust company incorporated and doing
business within the United States of America and having a combined
capital and surplus of at least $50,000,000, if there be such an
institution willing, able, and legally qualified to perform the duties
of the Trustee hereunder upon reasonable or customary terms. If a
successor Trustee shall not have been appointed within 30 days after
the giving of written notice of such resignation or the delivery of the
written instrument in respect of such removal, the Trustee, the
Manager, or any Unitholder may apply to any court of competent
jurisdiction to appoint a successor Trustee to act until such time, if
any, as a successor Trustee shall have been appointed in accordance
with the preceding sentence. Any successor Trustee so appointed by such
court shall immediately and without further act be superseded by any
successor Trustee appointed in accordance with the first sentence of
this Section 11.3(a) within one year from the date of the appointment
by such court.
(b) Any successor Trustee, however appointed, shall execute
and deliver to the predecessor Trustee an instrument accepting such
appointment, and thereupon such successor Trustee, without further act,
shall become vested with all the estates, properties, rights, powers,
duties, and trusts of the predecessor Trustee in the trusts hereunder
with like effect as if originally named the Trustee herein; but
nevertheless, such predecessor Trustee shall duly assign, transfer,
deliver, and pay over to such successor Trustee all Trust Property then
held or subsequently received by such predecessor Trustee upon the
trusts herein expressed. The successor Trustee shall execute, deliver,
and file any certificate of amendment to the Certificate required to be
filed under the Act as a result of the appointment of such successor
Trustee or the bankruptcy, dissolution, termination, resignation, or
removal of the predecessor Trustee.
11.4 Appointment of Additional Trustees. For the purpose of complying
with any law of any jurisdiction in which any part of the Trust Property may be
located, the Manager may from time to time by written instrument appoint one or
more persons to act as separate Trustees of all or any part of the Trust
Property to the full extent local law makes it necessary, appropriate, or
advisable for such separate Trustee to act alone.
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ARTICLE XII
AMENDMENTS AND WAIVERS
12.1 With Unitholder Consent. Except as expressly provided in Section
12.2 or 12.3, this Agreement may be modified or amended, or any provision hereof
waived, only with the written consent of the Manager and a majority in interest
of the Unitholders.
12.2 Without Unitholder Consent. The Manager may, whether with or
without the consent or vote of any Unitholder, amend or waive any provision of
this Agreement which merely (i) corrects an error or clarifies an ambiguity in
this Agreement, (ii) does not adversely affect any Unitholder in any material
respect, (iii) to the extent this Agreement is inconsistent with the Act, the
Code, or any other applicable law, conforms this Agreement to any such law, (iv)
changes SCHEDULE I hereto to reflect the Ownership Percentages of the
Unitholders as from time to time amended in accordance with this Agreement, or
(v) prevents the Trust (or any Unitholder) from being subject to the provisions
of the Investment Company Act of 1940, as amended.
12.3 With Consent of Trustee. No amendment to this Agreement which
materially affects the rights, powers, or duties of the Trustee shall be made
without the prior written consent of the Trustee.
ARTICLE XIII
MISCELLANEOUS
13.1 Captions. The article and section captions in this Agreement are
for convenience of reference only and shall not be deemed to alter or affect the
meaning or interpretation of any provision hereof.
13.2 Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall constitute one and the same instrument.
13.3 Entire Agreement. This Agreement constitutes the entire agreement
among the parties hereto in respect of the subject matter hereof, and supersedes
any prior agreement or understanding among them, in respect of the subject
matter hereof.
13.4 Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware (without
regard to principles of conflicts of laws); provided, however, that there shall
not be applicable to the Trust, the Trustee, or this Agreement any provisions of
the laws (statutory or common) of the State of Delaware, other than the Act,
pertaining to trusts that relate to or regulate, in a manner inconsistent with
the terms hereof (i) the filing with any court or governmental body or agency of
trustee accounts or schedules of trustee fees and charges, (ii) affirmative
requirements to post bonds for trustees, officers, agents, or employees of a
trust, (iii) the necessity for obtaining court or other governmental approval
concerning the acquisition, holding, or disposition of real or personal
property, (iv) fees or other sums payable to trustees, officers, agents, or
employees of a trust, (v) the allocation of receipts and expenditures to income
and principal, (vi) restrictions or limitations on the permissible nature,
amount, or concentration of trust investments or requirements relating to the
titling, storage, or other manner of holding or investing trust assets, (vii)
the establishment of fiduciary or other standards or responsibilities or
limitations on the acts or powers of trustees, or (viii) the provisions of 12
Del. C. Section 3540.
13.5 Limitations on Rights of Others. Nothing in this Agreement,
whether express or implied, shall be construed to give to any person other than
the Trust, the Trustee, and the Unitholders any legal or
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equitable right, remedy, or claim in the Trust Property or under or in respect
of this Agreement or any provision hereof.
13.6 Notices. Except as otherwise expressly stated herein, all notices,
requests, demands, and other communications hereunder shall be in writing and
shall be deemed to have been duly given if sent by overnight courier, hand
delivered, mailed (first class registered mail or certified mail, postage
prepaid), or sent by facsimile if to the Grantors or the Unitholders at their
respective addresses or facsimile numbers set forth on SCHEDULE I hereto, if to
the Trustee or the Manager at their respective addresses or facsimile numbers
set forth on their signature pages hereto or to such other address or facsimile
number as the Grantors, the Unitholders, the Trustee, or the Manager shall have
last designated by notice to all of the other parties hereto in accordance with
this Section 13.6. Notices sent by hand delivery shall be deemed to have been
given when received; notices mailed in accordance with the foregoing shall be
deemed to have been given three days following the date so mailed; notices sent
by facsimile shall be deemed to have been given when electronically confirmed;
and notices sent by overnight courier shall be deemed to have been given on the
next business day following the date so sent.
13.7 Other Terms. All references to articles, sections, and schedules
contained in this Agreement are, unless specifically indicated otherwise,
references to articles and sections of, and schedules to, this Agreement.
Whenever in this Agreement the singular number is used, the same shall include
the plural where appropriate (and vice versa), and words of any gender shall
include each other gender where appropriate. As used in this Agreement, the
following words or phrases shall have the meanings indicated: (i) "or" means
"and/or"; (ii) "day" means a calendar day; (iii) "including," "include," and
their derivatives mean "including without limitation"; (iv) "laws" means
statutes, regulations, rules, judicial orders, and other legal pronouncements
having the effect of law; (v) "person" means any individual, corporation,
partnership, limited liability company, joint venture, trust, unincorporated
association, or other form of business or legal entity or governmental entity;
(vi) "majority in interest of the Unitholders" means the Unitholders owning more
than 50% of the Units of all Unitholders; (vii) "affiliate" means any person
directly or indirectly controlling, controlled by, or under common control with,
another person; and (viii) "control" means the possession, directly or
indirectly, of the power, whether or not exercised, to direct or cause the
direction of the management and policies of any person, whether through the
ownership of voting securities, by contract, or otherwise.
13.8 Severability. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid under the applicable law of any jurisdiction, the remainder of this
Agreement or the application of such provision to other persons or circumstances
or in other jurisdictions shall not be affected thereby. In addition, if any
provision of this Agreement is invalid or unenforceable under any applicable
law, then such provision shall be deemed inoperative to the extent that it may
conflict therewith and shall be deemed modified to conform with such law. Any
provision hereof that may prove invalid or unenforceable under any law shall not
affect the validity or enforceability of any other provision hereof.
13.9 Successors and Assigns. Except as otherwise expressly provided in
this Agreement, this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
TRUSTEE:
FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION, as Trustee
By: /s/ XXXXXX X.XXXXXX, XX.
--------------------------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
------------------------------------------------
Title: Vice President
-----------------------------------------------
Address:
First Union Trust Company, National Association
Xxx Xxxxxx Xxxxxx, Xxxxx 000
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Xx.
Facsimile: (000) 000-0000
MANAGER:
/s/ XXXXXXXXX X. XXXX, XX.
------------------------------------------------------
Xxxxxxxxx X. Xxxx, Xx.,
as Manager and not individually
Address:
c/o Wingate Partners II, L.P.
000 Xxxxx Xx. Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxxxx X. Xxxx, Xx
Facsimile: (000) 000-0000
With a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
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GRANTORS:
XXXXXXX PARTNERS II, L.P.,
as Grantor
By: Xxxxxxx Management Company II, L.P.,
its General Partner
By: Xxxxxxx Management Limited, L.L.C.,
its General Partner
By: /s/ XXXXXXXXX X. XXXX, XX.
------------------------------------------
Name: Xxxxxxxxx X. Xxxx, Xx.
----------------------------------------
Title: Manager
---------------------------------------
XXXXXXX AFFILIATES II, L.P.,
as Grantor
By: /s/ XXXXXXXXX X. XXXX, XX.
----------------------------------------------------
Name: Xxxxxxxxx X. Xxxx, Xx.,
--------------------------------------------------
Title: General Partner
-------------------------------------------------
ARMBUCK & CO.,
as Grantor
By: /s/ XXXXXX X. XXXXXXX
----------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
--------------------------------------------------
Title: Partner
-------------------------------------------------
HC CROWN CORP.,
as Grantor
By: /s/ XXXXXX XXX
----------------------------------------------------
Name: Xxxxxx Xxx
--------------------------------------------------
Title: Vice President
-------------------------------------------------
LIMIT & CO.,
as Grantor
By: /s/ XXXXXXX X. XXXXX
----------------------------------------------------
Name: Xxxxxxx X. Xxxxx
--------------------------------------------------
Title: Partner
-------------------------------------------------
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XXXXXXX X. & XXXXXXXXX XXXXXX REVOCABLE TRUST dated
7/3/92, as Grantor
By: /s/ XXXXXXX X. XXXXXX
----------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
--------------------------------------------------
Title: Trustee
-------------------------------------------------
XXXXXXX INVESTMENT COMPANY, as Grantor
By: XXXXX X. XXXXXXX, XX.
----------------------------------------------------
Name: Xxxxx X. Xxxxxxx, Xx.
--------------------------------------------------
Title: G.P.
-------------------------------------------------
/s/ XXXXX X. XXXX
-------------------------------------------------------
Xxxxx X. Xxxx, as Grantor
UNITHOLDERS:
XXXXXXX PARTNERS II, L.P.,
as Unitholder
By: Xxxxxxx Management Company II, L.P.,
its General Partner
By: Xxxxxxx Management Limited, L.L.C.,
its General Partner
By: XXXXXXXXX X. XXXX, XX.,
----------------------------------
Name: Xxxxxxxxx X. Xxxx, Xx.,
---------------------------------
Title: Manager
-------------------------------
XXXXXXX AFFILIATES II, L.P.,
as Unitholder
By: /s/ XXXXXXXXX X. XXXX, XX.
----------------------------------------------------
Name: Xxxxxxxxx X. Xxxx, Xx.
--------------------------------------------------
Title: General Partner
-------------------------------------------------
ARMBUCK & CO.,
as Unitholder
By: /s/ XXXXXX X. XXXXXXX
----------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
--------------------------------------------------
Title: Partner
-------------------------------------------------
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HC CROWN CORP.,
as Unitholder
By: /s/ XXXXXX XXX
----------------------------------------------------
Name: Xxxxxx Xxx
--------------------------------------------------
Title: Vice President
-------------------------------------------------
LIMIT & CO.,
as Unitholder
By: /s/ XXXXXXX X. XXXXX
----------------------------------------------------
Name: Xxxxxxx X. Xxxxx
--------------------------------------------------
Title: Partner
-------------------------------------------------
XXXXXXX X. & XXXXXXXXX XXXXXX REVOCABLE TRUST
dated 7/3/92, as Unitholder
By: /s/ XXXXXXX X. XXXXXX
----------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
--------------------------------------------------
Title: Trustee
-------------------------------------------------
XXXXXXX INVESTMENT COMPANY, as Unitholder
By: XXXXX X. XXXXXXX, XX.
----------------------------------------------------
Name: Xxxxx X. Xxxxxxx, Xx.
--------------------------------------------------
Title: G.P.
-------------------------------------------------
/s/ XXXXX X. XXXX
---------------------------------------
Xxxxx X. Xxxx, as Xxxxxxxxxx
00
00
SCHEDULE I
---------------------------------------------------------------------------------------------------------------------
OWNERSHIP
UNITHOLDER AND ADDRESS CONTRIBUTIONS TO TRUST NO. OF UNITS PERCENTAGES
-------------------------------------- ------------------------------------------- ----------------- ----------------
-------------------------------------- ------------------------------------------- ----------------- ----------------
Xxxxxxx Partners II, L.P. $18,175,000 49,122 49.122%
000 Xxxxx Xx. Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxxxx X. Xxxx, Xx.
Facsimile: (000) 000-0000
-------------------------------------- ------------------------------------------- ----------------- ----------------
-------------------------------------- ------------------------------------------- ----------------- ----------------
Xxxxxxx Affiliates II, L.P. $350,000 946 0.946%
c/o Wingate Partners II, L.P.
000 Xxxxx Xx. Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxxxx X. Xxxx, Xx.
Facsimile: (000) 000-0000
-------------------------------------- ------------------------------------------- ----------------- ----------------
-------------------------------------- ------------------------------------------- ----------------- ----------------
Armbuck & Co. $5,000,000 13,514 13.514%
c/o The Hall Family Foundation
0000 XxXxx Xxxxxxx Xxx
Mail Drop 323
Xxxxxx Xxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. XxxXxxxxx
-------------------------------------- ------------------------------------------- ----------------- ----------------
-------------------------------------- ------------------------------------------- ----------------- ----------------
HC Crown Corp. $9,087,500 24,561 24.561%
0000 XxXxx Xxxxxxx Xxx
Mail Drop 387
Xxxxxx Xxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx XxXxxxxx
-------------------------------------- ------------------------------------------- ----------------- ----------------
-------------------------------------- ------------------------------------------- ----------------- ----------------
Limit & Co. $4,087,500 11,047 11.047%
0000 XxXxx Xxxxxxx Xxx
Mail Drop 323
Xxxxxx Xxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. XxxXxxxxx
-------------------------------------- ------------------------------------------- ----------------- ----------------
-------------------------------------- ------------------------------------------- ----------------- ----------------
Xxxxxxx X. & Xxxxxxxxx Xxxxxx $100,000 270 0.270%
Revocable Trust dated 7/3/92
c/o InterWest Partners
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
-------------------------------------- ------------------------------------------- ----------------- ----------------
-------------------------------------- ------------------------------------------- ----------------- ----------------
Xxxxxxx Investment Company $150,000 405 0.405%
000 Xxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Xx.
-------------------------------------- ------------------------------------------- ----------------- ----------------
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---------------------------------------------------------------------------------------------------------------------
OWNERSHIP
UNITHOLDER AND ADDRESS CONTRIBUTIONS TO TRUST NO. OF UNITS PERCENTAGES
-------------------------------------- ------------------------------------------- ----------------- ----------------
-------------------------------------- ------------------------------------------- ----------------- ----------------
Xxxxx X. Xxxx $50,000 135 0.135%
c/o Wingate Partners II, L.P.
000 Xxxxx Xx. Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
-------------------------------------- ------------------------------------------- ----------------- ----------------
-------------------------------------- ------------------------------------------- ----------------- ----------------
Total All Unitholders: $37,000,000 100,000 100.000%
========
-------------------------------------- ------------------------------------------- ----------------- ----------------
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