Exhibit 10.5
Exhibit 10.5
________________________________________________________________________________
LIQUIDATING TRUST AGREEMENT
Dated as of December 31, 2002
by and among
AFG Investment Trust B, a trust formed under the laws of the State of Delaware
("Investment Trust B")
as Grantor
by
AFG XXXX Corporation, not in its individual capacity
but solely as the Managing Trustee of Grantor
and
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as the Liquidating Trustee
Dated December 31, 2002
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iv
TABLE OF CONTENTS
ARTICLE I: NAME AND DEFINITIONS 2
1.1 Name 2
1.2 Certain Terms Defined 2
ARTICLE II: NATURE OF TRANSFER 4
2.1 Purpose of Liquidating Trust 4
2.2 Prohibited Activities 5
2.3 No Reversion to Investment Trust B 5
2.4 Payment of Liabilities 5
2.5 Xxxx of Sale, Assignment, Acceptance and Assumption Agreement;
Instruments of Further Assurance 5
2.6 Incidents of Ownership 6
2.7 Notice to Unlocated Holders of Investment Trust B Xxxxx 0
XXXXXXX XXX: BENEFICIARIES 6
3.1 Beneficial Interests 6
3.2 Rights of Beneficiaries 7
3.3 No Transfer of Interests of Beneficiaries 7
3.4 Trustee as Beneficiary 8
ARTICLE IV: DURATION AND TERMINATION OF LIQUIDATING TRUST 8
4.1 Duration 8
4.2 Other Obligations of the Liquidating Trustee upon Termination 8
ARTICLE V: ADMINISTRATION OF LIQUIDATING TRUST ASSETS 8
5.1 Sale of Liquidating Trust Assets 8
5.2 Transactions with Related Persons 9
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5.3 Payment of Claims, Expenses and Liabilities 9
5.4 Interim Distributions 9
5.5 Final Distribution 9
5.6 Reports to Beneficiaries and Others 10
5.7 Federal Income Tax Information 10
5.8 Employment of Manager 11
ARTICLE VI: POWERS OF AND LIMITATIONS ON THE LIQUIDATING TRUSTEES 11
6.1 Limitations on Liquidating Trustee 11
6.2 Specific Powers of the Liquidating Trustee 12
ARTICLE VII: CONCERNING THE LIQUIDATING TRUSTEES, BENEFICIARIES, EMPLOYEES AND
AGENTS 15
7.1 Generally 15
7.2 Reliance by Liquidating Trustee 15
7.3 Limitation on Liability to Third Persons 16
7.4 Recitals 17
7.5 Indemnification 17
7.6 Rights of Liquidating Trustees, Employees, Independent Contractors and
Agents to Own Liquidating Trust Units or Other Property and to Engage in Other
Business 18
7.7 Contribution Back 18
ARTICLE VIII: PROTECTION OF PERSONS DEALING WITH THE LIQUIDATING TRUSTEE 19
8.1 Action by Liquidating Trustee 19
8.2 Reliance on Statements by the Liquidating Trustee 19
ARTICLE IX: COMPENSATION OF LIQUIDATING TRUSTEE 19
9.1 Amount of Compensation 19
9.2 Dates of Payment 19
9.3 Expenses 19
ARTICLE X: THE LIQUIDATING TRUSTEE AND SUCCESSOR LIQUIDATING TRUSTEE 19
10.1 Number and Qualification of Liquidating Trustees 19
10.2 Resignation and Removal 20
10.3 Appointment of Successor 20
10.4 Acceptance of Appointment by Successor Liquidating Trustee 21
10.5 Bonds 21
ARTICLE XI: CONCERNING THE BENEFICIARIES 21
11.1 Evidence of Action by Beneficiaries 21
11.2 Limitation on Suits by Beneficiaries 22
11.3 Requirement of Undertaking 22
ARTICLE XII: MEETING OF BENEFICIARIES 22
12.1 Purpose of Meetings 22
12.2 Meeting Called by Liquidating Trustee 22
12.3 Meeting Called on Request of Beneficiaries 22
12.4 Persons Entitled to Vote at Meeting of Beneficiaries 23
12.5 Quorum 23
12.6 Adjournment of Meeting 23
12.7 Conduct of Meetings 23
12.8 Record of Meeting 23
ARTICLE XIII: AMENDMENTS 23
13.1 Consent of Beneficiaries 23
13.2 Notice and Effect of Amendment 24
13.3 Liquidating Trustee's Declining to Execute Documents 24
ARTICLE XIV: MISCELLANEOUS PROVISIONS 24
14.1 Filing Documents 24
14.2 Intention of Parties to Establish Liquidating Trust 24
14.3 Beneficiaries Have No Rights or Privileges as Holders of Investment
Trust B Units 24
14.4 Laws as to Construction 25
14.5 Severability 25
14.6 Notices 25
14.7 Counterparts 26
26
LIQUIDATING TRUST AGREEMENT
This LIQUIDATING TRUST AGREEMENT (this "Agreement"), dated as of December
31, 2002 (the "Effective Date"), by and among AFG XXXX Corporation, not in its
individual capacity but solely as Managing Trustee (the "Managing Trustee") of
AFG Investment Trust B, a trust formed under the laws of the State of Delaware
(the "Investment Trust B") , under a certain Second Amended and Restated
Declaration of Trust dated as of July 15, 1997, as the same has been amended
thereafter from time to time (the "Trust Agreement") and WILMINGTON TRUST
COMPANY, a Delaware banking corporation as Liquidating Trustee (the "Liquidating
Trustee").
WHEREAS, pursuant to Section 1.6 the Trust Agreement shall continue in full
force and effect until December 31, 2003, except that Investment Trust B shall
be dissolved, its affairs wound up and its assets liquidated prior to December
31, 2003 upon the sale or other disposition of all or substantially all of the
Assets of Investment Trust B, unless the Managing Trustee elects to continue
Investment Trust B business for the purpose of the receipt and collection of any
consideration to be received in exchange for Assets (which activities shall be
deemed to be a part of such sale or other disposition and the winding up of the
affairs of Investment Trust B); and
WHEREAS, the Trust Agreement provides that the Managing Trustee shall use its
best efforts to sell all of the Assets of Investment Trust B not later than the
end of the tenth year following Investment Trust B's Final Closing, provided
that market conditions existing at the time permit sale of the Assets on terms
deemed reasonable by the Managing Trustee; and
WHEREAS, pursuant to the Trust Agreement, the Managing Trustee shall have full
power and authority on behalf on Investment Trust B to sell, exchange or
otherwise dispose of the Assets on terms the Managing Trustee deems to be in the
best interests of Investment Trust B; and
WHEREAS, the Managing Trustee has determined that it is necessary and advisable
and in the best interest of Investment Trust B to sell or otherwise dispose of
all or substantially all of its Assets; and
WHEREAS, the Beneficiaries of Investment Trust B have agreed by the written
consent of the Class A and Class B Interests to liquidate and dissolve
Investment Trust B in accordance with the terms hereof; and
WHEREAS, upon the consummation of such sale or other disposition of all or
substantially all of the Assets of Investment Trust B, the Managing Trustee
shall dissolve Investment Trust B and wind up the business of Investment Trust B
in accordance with the Trust Agreement, pursuant to the Plan of Complete
Dissolution and Liquidation (the "Plan"), entered into as of December 31, 2002
by AFG XXXX Corporation, not in its individual capacity but solely as Managing
Trustee and Wilmington Trust Company, not in its individual capacity but solely
as Delaware Trustee of the Trust B and in conformity with the laws of the State
of Delaware; and
WHEREAS, all cash including the Cash Reserves and all right, title and
interest in and to all other assets of Investment Trust B that could not be sold
for cash prior to its dissolution (the "Retained Assets") shall be placed in a
separate liquidating trust, identified individually as "AFG Investment Trust B,
Liquidating Trust," for the benefit of the Beneficiaries (as hereinafter
defined), with WILMINGTON TRUST COMPANY an independent, nationally-recognized
financial institution as its trustee; and
WHEREAS, the Managing Trustee, on behalf of Investment Trust B, wishes to
engage WILMINGTON TRUST COMPANY as the trustee of the AFG Investment Trust B
Liquidating Trust (referred to hereafter as the "Liquidating Trust"), and
WILMINGTON TRUST COMPANY wishes to accept such engagement, each on the terms set
forth in and in accordance with this Agreement;
WHEREAS, capitalized terms used herein but not defined herein shall have
the meanings ascribed to them in the Trust Agreement.
NOW, THEREFORE, for good and valuable consideration, Investment Trust B
hereby agrees to grant, release, assign, convey and deliver unto the Liquidating
Trustee for the benefit of the Beneficiaries (as hereinafter defined), all of
the right, title and interest of Investment Trust B in and to the Retained
Assets for the uses and purposes stated herein on the Effective Date, subject to
the terms and provisions set out below, and the Liquidating Trustee hereby
agrees to accept such Retained Assets and such Liquidating Trust, subject to the
following terms and provisions:
ARTICLE I
NAME AND DEFINITIONSARTICLE I NAME AND DEFINITIONS
1.1 Name1.1 This Liquidating Trust shall be known as the
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"AFG Investment Trust B Liquidating Trust".
1.2 Certain Terms Defined For all
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purposes of this instrument, unless the context otherwise requires:
(a) "AFFILIATED PERSON" shall mean a Person (i) who in his individual
capacity is a director, trustee, officer, partner or employee of the Manager or
of a Person who controls, is controlled by or is under common control with the
Manager or (ii) who controls, is controlled by or is under common control with
the Manager.
(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 Liquidating Trust Assets in the Liquidating Trust determined by the ratio
of the number of Investment Trust B Units held by the Initial Beneficiary on the
close of business on the Record Date in Investment Trust B over the total number
of Investment Trust B Units existing on such Record Date in Investment Trust B
and thereafter each Beneficiary's proportional beneficial interest in Investment
Trust B's Liquidating Trust represented by Trust Units.
(d) "BENEFICIARIES" shall mean the holders from time to time on or after the
Record Date, including the Initial Beneficiaries and the Subsequent
Beneficiaries.
(e) "INITIAL BENEFICIARIES" shall mean the initial holders of Liquidating
Trust Units.
(f) " INVESTMENT TRUST B" shall mean the trust formed under the laws of the
State of Delaware, under a certain Second Amended and Restated Declaration of
Trust dated as of July 15, 1997, as the same has been amended thereafter from
time to time maintained by the Managing Trustee identified as the "AFG
Investment Trust B Liquidating Trust"; also referred to herein as the "Trust."
(g) "INVESTMENT TRUST B UNITS" shall mean the units in Investment Trust B
held by each of the Beneficiaries as of the Record Date.
(h) "LIQUIDATING TRUST" shall mean the liquidating trust created by this
Agreement maintained by the Liquidating Trustee holding Investment Trust B
Assets of Investment Trust B, identified as the "AFG Investment Trust B
Liquidating Trust";
(i) "MANAGER" shall mean such Person or Persons who have been employed by,
or who have contracted with, the Liquidating Trustee to assist in the management
of the Liquidating Trust.
(j) "PERSON" shall mean an individual, a corporation, a partnership, an
association, a joint stock company, a limited liability company, a trust, a
joint venture, any unincorporated organization, or a government or political
subdivision thereof.
(k) "RECORD DATE" shall mean the date selected by the Grantors for
determination of the holders of Investment Trust B Units entitled to become
Beneficiaries.
(l) "LIQUIDATING TRUST ASSETS" shall mean all the property held from
time to time by the Liquidating Trustee under this Agreement, which initially
shall consist of the Retained Assets of Investment Trust B granted, assigned and
conveyed to the Liquidating Trustee by Investment Trust B, 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
Liquidating Trust.
(m) "LIQUIDATING TRUST UNITS" shall mean those equal, undivided portions
into which the Beneficial Interests in the Partnership's Liquidating Trust
Assets are divided, as evidenced on the books and records of the Liquidating
Trust.
(n) "LIQUIDATING TRUSTEE" shall mean the original Liquidating Trustee
under this Agreement and its successor(s), if any.
(o) "SUBSEQUENT BENEFICIARIES" shall mean Beneficiaries as reflected on
the books and records of the Liquidating Trust from time to time after the
Effective Date, other than the Initial Beneficiaries.
ARTICLE II
NATURE OF TRANSFERARTICLE II NATURE OF TRANSFER
2.1 Purpose of Liquidating Trust
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(a) It is expected that Investment Trust B shall liquidate and dissolve
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 for which Investment Trust B has previously reserved
by the retention of the Cash Reserves as described in the recitals hereto. The
Liquidating Trust hereby is organized for the sole purpose of winding up the
affairs of Investment Trust B as promptly as reasonably possible and with no
objective to continue or engage in the conduct of a trade or business.
(b) Investment Trust B's Cash Reserves and Retained Assets to be
granted, assigned and conveyed to the Liquidating Trustee as of the Effective
Date will be held in the Liquidating Trust, and the Liquidating Trustee will:
(i) further liquidate the Liquidating Trust Assets as it deems to be necessary
to carry out the purpose of the Liquidating Trust B and facilitate distribution
of the Liquidating Trust Assets; (ii) protect, conserve and manage Investment
Trust B Liquidating Trust Assets in accordance with the terms and conditions
hereof; (iii) take such actions as may be necessary to carry out the intent of
the proposals approved by the written consent of the unit holders of Investment
Trust B solicited pursuant to a Solicitation Statement dated as of November 25,
2002 (the "Solicitation Statement"); and (iv) distribute the Liquidating Trust
Assets in accordance with the terms and conditions hereof.
(c) It is intended that the granting, assignment and conveyance of the
Cash Reserves and the Retained Assets by Investment Trust B to the Liquidating
Trustee pursuant hereto shall be treated for federal and state income tax
purposes as if Investment Trust B made such distributions directly to the
holders of Investment Trust B Units. It is further intended that for federal,
state and local income tax purposes the Liquidating 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 Liquidating 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
Liquidating 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 Liquidating 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 Section
1.671-4(a) of the Income Tax Regulations. Investment Trust B agrees that the
Transfer Agent acting on its behalf may prepare and file applicable K-1's
respecting the Beneficiaries' Investment Trust B income. To the extent that the
Liquidating Trustee becomes liable for the payment of taxes, including
withholding taxes, in respect of income derived from the investment of funds
held hereunder or any payment made hereunder (collectively, the "Taxes"), the
Liquidating Trustee may pay such Taxes. The Liquidating Trustee may withhold
from any payment of the Liquidating Trust Assets such amount as the Liquidating
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 Liquidating Trustee
shall be indemnified and held harmless against any liability for Taxes and for
any penalties or interest in respect of Taxes on such investment income or
payments in the manner provided herein.
Prohibited Activities
The
liquidating Trust shall not continue or engage in the conduct of any trade or
business, and the Liquidating Trustee is expressly prohibited from, and shall
have no power or authority to, continue or engage in the conduct of any trade or
business on behalf of the Liquidating Trust or the Beneficiaries, and all of the
terms and conditions hereof shall be construed accordingly.
2.3 No Reversion to Investment Trust
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In no event shall any part of the Liquidating Trust Assets revert
to or be distributed to Investment Trust B.
Payment of Liabilities
To the
extent that there are available Liquidating Trust Assets in the Liquidating
Trust, the Liquidating Trust hereby agrees to assume all Liabilities of
Investment Trust B on the Effective Date. Should any Liability be asserted
against the Liquidating Trust Bs the transferee of the Liquidating Trust Assets
or as a result of the assumption made in this paragraph, the Liquidating Trustee
may use such part of Liquidating Trust Assets as may be necessary in contesting
any such Liability or in payment thereof. In no event shall the Liquidating
Trustee, Beneficiaries or employees or agents of the Liquidating Trust be
personally liable, nor shall resort be had to the private property of such
Persons or to any other Liquidating Trust Assets, in the event the Liquidating
Trust Assets are not sufficient to satisfy the Liabilities asserted against or
payable out of such available Liquidating Trust Assets in the Liquidating
Trust.
2.5 Xxxx of Sale, Assignment, Acceptance and Assumption Agreement;
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Instruments of Further Assurance
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On the Effective Date,
Investment Trust B and the Liquidating Trust shall execute a Xxxx of Sale,
Assignment, Acceptance and Assumption Agreement conveying the Retained Assets,
Cash Reserves and Liabilities to the Liquidating Trust, a form of which is
attached as Exhibit A hereto. After the dissolution of Investment Trust B, such
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Persons as shall have the right and power to so act, will, upon reasonable
request of the Liquidating 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 Liquidating Trustee of any property intended to be covered
hereby, and to vest in the Liquidating Trustee, their successors and assigns,
the estate, powers, instruments or funds in trust hereunder.
2.6 Incidents of Ownership The holders
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of Investment Trust B Units as of the Record Date shall be the Initial
Beneficiaries of the Liquidating Trust Bs holders of Trust Units in Investment
Trust B's Trust, and the Liquidating 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 Investment Trust B Units
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If the Liquidating Trust
holds Liquidating Trust Assets for unlocated holders of any Investment Trust B
Units, due notice shall be given to such holders of Investment Trust B Units in
accordance with Delaware law.
ARTICLE III
BENEFICIARIESARTICLE III BENEFICIARIES
3.1 Beneficial Interests
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(a) The Beneficial Interest of each Initial Beneficiary hereof shall be
determined by Investment Trust B in accordance with a certified copy of
Investment Trust B's list of Investment Trust B Unit holders as of the Record
Date (the "List"). The Managing Trustee of Investment Trust B will deliver the
certified copy of the List to the Liquidating Trustee within a reasonable time
after the Record Date specifying the Beneficial Interests of each Initial
Beneficiary in Investment Trust B. 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 Liquidating Trust Unit in
Investment Trust B's Trust.
(b) In the case of Investment Trust B Unit holders, customary
institutional book-entry or other records or any other evidence of ownership
satisfactory to the Liquidating Trustee will be deemed to evidence the
Beneficial Interest in the Liquidating Trust of each such Beneficiary.
(c) If any conflicting claims or demands are made or asserted with
respect to the ownership of any Liquidating 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 Liquidating
Trust Units, then, in any of such events, the Liquidating Trustee shall be
entitled, at its sole election, to refuse to comply with any such conflicting
claims or demands. In so refusing, the Liquidating Trustee may elect to make no
payment or distribution with respect to such Liquidating Trust Units, or to make
such payment to a court of competent jurisdiction or an escrow agent, and in so
doing the Liquidating 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 Liquidating Trustee be liable for interest on
any funds which it may so withhold. The Liquidating 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 judgment of a court of competent
jurisdiction, (ii) all differences have been adjusted by valid written agreement
between all of such parties, and the Liquidating Trustee shall have been
furnished with an executed counterpart of such agreement, or (iii) there is
furnished to the Liquidating Trustee a surety bond or other security
satisfactory to the Liquidating Trustee, as it shall deem appropriate, to fully
indemnify it as between all conflicting claims or demands.
3.2 Rights of Beneficiaries Each
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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 Liquidating Trustee shall not be required
to evidence a book entry transfer of a deceased Beneficiary's Beneficial
Interest to his legal representative until the Liquidating 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 to,
right to, possession of, management of, or control of, Investment Trust B's
Liquidating 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 Liquidating
Trust Assets but the whole title to Investment Trust B's Liquidating Trust
Assets shall be vested in the Liquidating Trustee and the sole interest of the
applicable Beneficiaries shall be the rights and benefits given to such Persons
under this Agreement.
3.3 No Transfer of Interests of Beneficiaries
---------------------------------------------
The Beneficial Interest of a Beneficiary may not 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,
nor may a Beneficiary have 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 Liquidating Trustee.
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 interests be subject to
the contracts, debts, obligations, engagements or liabilities of any
Beneficiary, but the interest of a Beneficiary shall be paid by the Liquidating
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 Trustee as Beneficiary The
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Liquidating Trustee, either individually or in a representative or fiduciary
capacity, may be a Beneficiary to the same extent as if it were not a
Liquidating 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 was not the Liquidating Trustee hereunder.
ARTICLE IV
DURATION AND TERMINATION OF LIQUIDATING TRUSTARTICLE IVDURATION AND TERMINATION
OF TRUST
4.1 Duration The existence of this Liquidating Trust
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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 Liquidating Trust Assets as provided in Section 5.5, or
(iii) December 31, 2003; provided, however, that the Liquidating Trustee, in its
discretion, may extend the existence of this Liquidating Trust to such later
date as it may designate, if it determines that an extension is reasonably
necessary to pay or make provision for then known liabilities, actual or
contingent.
4.2 Other Obligations of the Liquidating Trustee upon Termination
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Upon distribution of all the
Liquidating Trust Assets, the Liquidating Trustee shall provide for the
retention of all necessary books, records, lists of holders of Liquidating Trust
Units in the Liquidating Trust, certificates and files that shall have been
delivered to or created by the Liquidating Trustee for a period of ten (10)
years thereafter, at the Liquidating Trustee's discretion, all of such records
and documents may be destroyed. Except as otherwise specifically provided
herein, upon the distribution of all Liquidating Trust Assets in the Liquidating
Trust, the Liquidating Trustee shall have no further duties or obligations
hereunder.
ARTICLE V
ADMINISTRATION OF LIQUIDATING TRUST ASSETSARTICLE VADMINISTRATION OF TRUST
ASSETS
5.1 Sale of Liquidating Trust Assets The
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Liquidating 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 Liquidating Trust Assets in the Liquidating Trust Bs 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 Liquidating Trustee shall
determine).
5.2 Transactions with Related Persons
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Notwithstanding any other provisions of this Agreement, except as
expressly provided herein and in the proposals approved by written consent of
the unit holders of Investment Trust B pursuant to the Solicitation Statement,
the Liquidating Trustee shall not knowingly, directly or indirectly, sell or
otherwise transfer all or any part of any Liquidating Trust Assets to, or
contract with, (i) itself or any other Liquidating Trustee or an employee or
agent (acting in its or their individual capacities) of this Liquidating Trust,
or (ii) any Person of which any Liquidating Trustee, employee or agent of this
Liquidating Trust is an affiliate by reason of being a trustee, director,
officer, partner or direct or indirect beneficial owner of 5% or more of the
outstanding capital stock, shares or other equity interest of such Persons.
5.3 Payment of Claims, Expenses and Liabilities
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Provided the Liquidating Trustee has been
advised in writing respecting such claims, expenses, charges, liabilities and
obligations, the Liquidating Trustee shall pay from the Liquidating Trust Assets
in the Liquidating Trust B all claims, expenses, charges, liabilities, and
obligations of the Liquidating Trust Assets in the Liquidating Trust B and all
Liabilities relating to the Liquidating Trust Assets held in the Liquidating
Trust B and obligations which the Liquidating Trustee specifically assumes and
agrees to pay pursuant to this Agreement and such transferee liabilities which
the Liquidating Trustee may be obligated to pay as transferees of the
Liquidating Trust Assets in the Liquidating Trust, including among the
foregoing, and without limiting the generality of the foregoing, 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 Liquidating Trust B and such other payments and
disbursements as are provided in this Agreement or which may be determined to
be a proper charge against the Liquidating Trust Assets in the Liquidating Trust
by the Liquidating Trustee.
5.4 Interim Distributions At such times
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as may be determined by it in its sole discretion, the Liquidating Trustee shall
distribute, or cause to be distributed, to the Beneficiaries, in proportion to
the number of Liquidating Trust Units held by each Beneficiary relating to the
Liquidating Trust, such cash or other property comprising a portion of the
Liquidating Trust Assets in the Liquidating Trust Bs the Liquidating Trustee may
in its sole discretion determine may be distributed without detriment to the
conservation and protection of the Liquidating Trust Assets in the Liquidating
Trust.
5.5 Final Distribution If the Liquidating
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Trustee determines that the Liabilities and all other claims, expenses, charges,
liabilities and obligations of the Liquidating Trust have been paid or
discharged, or if the existence of the Liquidating Trust shall terminate
pursuant to Section 4.1, the Liquidating Trustees shall, as expeditiously as is
consistent with the conservation and protection of the Liquidating Trust Assets,
distribute the Liquidating Trust Assets in the Liquidating Trust to the
Beneficiaries in proportion to the number of Liquidating Trust Units held by
each Beneficiary in the Liquidating Trust based on the list submitted to the
Liquidating Trustee by the Managing Trustee of Investment Trust B pursuant to
Section 3.1 above, as such list may be amended. The Liquidating Trustee shall
hold in the Liquidating Trust B and thereafter make disposition of all
liquidating distributions and other payments due any Beneficiaries who have not
been located, in accordance with Delaware law, subject to applicable state laws
regarding escheat and abandoned property. It is understood that the Liquidating
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) and
intermediary bank. The Liquidating Trustee may apply any of the Liquidating
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.
5.6 Reports to Beneficiaries and Others
------------------------------------
As soon as practicable after the end of each taxable year of the
Liquidating Trust B and after termination of the Liquidating Trust, the
Liquidating Trustee shall submit a written report and account to the
Beneficiaries showing (i) the assets and liabilities of the Liquidating Trust Bt
the end of such taxable year or upon termination and the receipts and
disbursements of the Liquidating Trustee for such taxable year or period,
certified by an independent certified public accountant, (ii) any changes in the
Liquidating Trust Assets in the Liquidating Trust which they have not previously
reported, and (iii) any action taken by the Liquidating Trustee in the
performance of its duties under this Agreement which it has not previously
reported and which, in its opinion, materially affects the Liquidating Trust
Assets. The Liquidating Trustee may submit similar reports for such interim
periods during the taxable year as it deems advisable or as may be required by
the Securities and Exchange Commission. The taxable year of the Liquidating
Trust shall end on December 31 of each year unless the Liquidating Trustee deems
it advisable to establish some other date as the date on which the taxable year
of the Liquidating Trust shall end.
5.7 Federal Income Tax Information
---------------------------------
As soon as practicable after the close of each taxable year, the
Liquidating Trustee shall direct the Transfer Agent to mail to each Person who
was a Beneficiary at the close of the year, a statement showing on a Liquidating
Trust Unit basis in the Liquidating Trust the dates and amounts of all
distributions made by the Liquidating Trustee, if any, income earned on assets
held by the Liquidating Trust, if any, such other information as is reasonably
available to the Liquidating Trustee which the Liquidating Trustee determines
may be helpful in determining the amount of gross income and expenses
attributable to the Liquidating Trust that such Beneficiary should include in
such Person'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 written request in good faith, or in its discretion without
such request or if required by applicable law, the Transfer Agent (or if it
cannot, the Liquidating 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
Liquidating 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 Liquidating Trustee shall be responsible for the general
policies of the Liquidating Trust B and for the general supervision of the
activities of the Liquidating Trust conducted by all agents, employees, advisors
or managers of the Liquidating Trust. However, the Liquidating Trustee is not
and shall not be required personally to conduct the activities of the
Liquidating Trust, and consistent with its ultimate responsibility as stated
above, the Liquidating Trustee shall have the power to appoint, employ or
contract with any Person or Persons (including any corporation, partnership, or
trust in which one or more of them may be directors, officers, shareholders,
partners or trustees) as the Liquidating Trustee may deem necessary or proper
for the transaction of the activities of the Liquidating Trust, including, but
not limited to, Equis Financial Group and its affiliates. The Liquidating
Trustee may therefore employ or contract with such Person or Persons (herein
referred to as the "Manager") and may grant or delegate such authority to the
Manager as the Liquidating Trustee may in its sole discretion deem necessary or
desirable to carry out the purpose of the Liquidating Trust without regard to
whether such authority is normally granted or delegated by trustees.
The Liquidating Trustee shall have the power to determine the terms and
compensation of the Manager or any other Person whom they may employ or with
whom they may contract. The Liquidating Trustee may exercise broad discretion
in allowing the Manager to administer and regulate the operations of the
Liquidating Trust, to act as agent for the Liquidating Trust, to execute
documents on behalf of the Liquidating Trustee, and to make executive decisions
which conform to general policies and general principles previously established
by the Liquidating Trustee.
(b) The Manager or other Persons shall not be required to administer
the Liquidating Trust Bs 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 Liquidating Trust, including the rendering of advice or
services of any kind to investors or any other Persons and the management of
other investments.
ARTICLE VI
POWERS OF AND LIMITATIONS ON THE LIQUIDATING TRUSTEESARTICLE VIPOWERS OF AND
LIMITATIONS ON THE TRUSTEES
6.1 Limitations on Liquidating Trustee
------------------------------------
Except as contemplated by this Agreement, the Liquidating Trustee shall not at
any time, on behalf of the Liquidating Trust or Beneficiaries, enter into or
engage in any trade or business, and no part of any Liquidating Trust Assets
shall be used or disposed of by the Liquidating Trustee in furtherance of any
trade or business. Except as the Liquidating Trustee reasonably believes is
consistent with and in furtherance of its obligations under this Agreement, the
Liquidating Trustee shall be restricted to the holding, collection and sale of
the Liquidating Trust Assets and the payment and distribution thereof for the
purposes set forth in this Agreement and to the conservation and protection of
the Liquidating Trust Assets and the administration thereof in accordance with
the provisions of this Agreement. In no event shall the Liquidating 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 Investment Trust Bs 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 Liquidating Trust Bs 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
Liquidating Trustee to be necessary or proper for the conservation and
protection of the Liquidating Trust Assets. The Liquidating Trustee shall not
invest any of the cash held as Liquidating Trust Assets, except that the
Liquidating 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 A1P1, 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 including, the Wilmington Fund, an AAA rated money market fund
managed by Xxxxxx Square, and an affiliate of the Liquidating Trustee,; or (iii)
other temporary investments not inconsistent with the Liquidating Trust's status
as a liquidating trust for tax purposes (collectively, "Permitted Investments").
It is hereby acknowledged that the Liquidating Trustee shall not be required to
maximize the investment return on the Liquidating Trust Assets during the term
of this Liquidating Trust Agreement. The Liquidating 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
Liquidating Trustee is not responsible for any losses to the Liquidating Trust
which may occur, including, without limitation, by reason of bank failure or the
amount of the Liquidating Trust exceeding the Federal Deposit Insurance
Corporation limits.
6.2 Specific Powers of the Liquidating Trustee
--------------------------------------------
Subject to the provisions of Section 6.1, the Liquidating
Trustee shall have the following specific powers in addition to any powers
conferred upon them 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 Liquidating Trustee to act as specifically authorized by any
other Section or provision of this Agreement and to act in such a manner as the
Liquidating Trustee may deem necessary or appropriate to conserve and protect
any Liquidating 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 Liquidating Trust Assets.
(b) To collect, liquidate or otherwise convert into cash, or such other
property as they deem appropriate, all property, assets and rights in any
Liquidating Trust Assets, and to pay, discharge and satisfy all other claims,
expenses, charges, Liabilities, and obligations existing with respect to any
Liquidating Trust Assets, the Liquidating Trust or the Liquidating 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
Liquidating 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 Liquidating Trustee to any one or more Liquidating Trustees, agents,
representatives, employers, independent contractors or other Persons.
(d) To retain and set aside such funds out of the Liquidating Trust Bs
the Liquidating Trustee shall deem necessary or expedient to pay, or provide for
the payment of (i) unpaid claims, expenses, charges, Liabilities, and
obligations of the Liquidating Trust or the Investment Trust, except to the
extent that liabilities for which Investment Trust B has previously reserved
Cash Reserves are satisfied with funds from said Cash Reserves; (ii)
contingencies; and (iii) the expenses of administering the Liquidating Trust
Assets.
(e) To do and perform any and all acts necessary or appropriate for the
conservation and protection of the Liquidating Trust Assets, including acts or
things necessary or appropriate to maintain Liquidating Trust Assets held by the
Liquidating Trustee pending sale or other disposition thereof or distribution
thereof to the Beneficiaries.
(f) To hold legal title to property of the Liquidating Trust in the name of
the Liquidating Trust, or in the name of the Liquidating Trustee, or of any
other Person, without disclosure of the interest of the Liquidating Trust
therein.
(g) To cause any investments of any part of the Liquidating Trust Assets to
be registered and held in the name of any one or more of their 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 Liquidating Trust or the
Partnership or as otherwise required, as the Liquidating 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 Liquidating
Trust Assets.
(i) To determine conclusively from time to time the value of and to revalue
the securities and other property of the Liquidating Trust, in accordance with
independent appraisals or other information as they deem 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 Liquidating
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 Liquidating Trust, provided that no such new instrument, contract,
agreement, obligation or cause of action shall permit the Liquidating Trustee to
engage in any activity prohibited by Section 6.1.
(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
Liquidating 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 Liquidating Trustee which the Liquidating Trustee might or could do if
they were the absolute owners 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 Liquidating 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 Liquidating Trustee, to comply with the applicable
federal and state securities laws, and to enter into agreements relating to 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 Liquidating Trustee as part of any Liquidating Trust Assets.
(o) To terminate and dissolve any entities owned by the Liquidating Trust.
(p) To have a judicial settlement of their account of the Liquidating Trust
Bt any time to the extent they determine 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 Liquidating 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
CONCERNING THE LIQUIDATING TRUSTEES,
BENEFICIARIES, EMPLOYEES AND AGENTSARTICLE VIICONCERNING THE TRUSTEES,
BENEFICIARIES, EMPLOYEES AND AGENTS
7.1 Generally The Liquidating Trustee accepts and
---------
undertakes to discharge the Liquidating Trust created by this Agreement, upon
the terms and conditions thereof on behalf of the Beneficiaries. The
Liquidating Trustee shall exercise such of the 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
Liquidating Trustee from liability for its own willful misconduct, knowingly and
intentionally committed in bad faith, except that:
(a) No successor Liquidating Trustee shall be in any way responsible
for the acts or omissions of the Liquidating Trustee in office prior to the date
on which he or it becomes a Liquidating Trustee.
(b) The Liquidating 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 Liquidating Trustee.
(c) The Liquidating 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 Liquidating Trustee and conforming to
the requirements of this Agreement.
(d) The Liquidating Trustee shall not be liable for any act which the
Liquidating 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 Liquidating Trust 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
Liquidating Trustee or any of its employees, agents, representatives or
attorneys.
(e) The duties and obligations of the Liquidating Trustee shall be
limited to and determined solely by the express provisions of this Liquidating
Trust Agreement and no implied duties or obligations shall be read into this
Liquidating Trust Agreement against the Liquidating Trustee. The Liquidating
Trustee is not bound by and is under no duty to inquire into the terms or
validity of any other agreements or documents, including, but not limited to the
Settlement Agreement and any agreements which may be related to, referred to in
or deposited with the Liquidating Trustee in connection with this Liquidating
Trust Agreement.
7.2 Reliance by Liquidating Trustee Except
-------------------------------
as otherwise provided in Section 7.1:
(a) The Liquidating 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 Liquidating Trustee may consult with legal counsel, auditors or
other experts to be selected by it, including firms with which the Liquidating
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 Liquidating Trustee, the employees and the agents of the Liquidating 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 Liquidating Trustee shall look only to the
Liquidating Trust Assets in the Liquidating Trust to satisfy any liability
relating to the Liquidating Trust Assets in the Liquidating Trust incurred by
the Liquidating Trustee to such Person in carrying out the terms of this
Liquidating Trust, and the Liquidating Trustee shall have no obligation to
satisfy any such liability. If for any purposes hereunder such liability is
properly allocated to two or more Investment Trusts or Liquidating Trusts, then
such liability shall be satisfied from the Liquidating Trust Assets of the
relevant Liquidating Trust Bs directed by the General Partners of the
predecessor Investment Trusts in a manner consistent with the allocation
practices prior to the Investment Trusts' liquidations.
(d) As far as practicable and except as expressly permitted above, the
Liquidating Trustee shall cause any written instrument creating an obligation of
the Liquidating Trust to include a reference to this Agreement and to provide
that neither the Beneficiaries, the Liquidating Trustee nor their agents shall
be liable thereunder and that the other parties to such instrument shall look
solely to the Liquidating Trust Assets held in the Liquidating Trust 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 Liquidating Trustee, or their agents liable nor shall the
Liquidating Trustee be liable to anyone for such omission.
7.3 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 Liquidating Trust Assets or the affairs of this Liquidating
Trust; and neither the Liquidating Trustee nor any employee or agent of this
Liquidating Trust shall be subject to any personal liability whatsoever, in
tort, contract or otherwise, to any Person in connection with any Liquidating
Trust Assets or the affairs of this Liquidating 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 Liquidating Trust Assets held in
such Person's Liquidating Trust for satisfaction of claims of any nature arising
in connection with the affairs of this Liquidating Trust. The Liquidating
Trustee shall, at all times, maintain insurance for the protection of all
Liquidating Trust Assets, its Beneficiaries, the Liquidating Trustee and its
employees and agents in such amount as the Liquidating Trustee shall deem
adequate to cover all foreseeable liability to the extent available at
reasonable rates.
7.4 Recitals Any written instrument creating an
--------
obligation of this Liquidating Trust shall be conclusively taken to have been
executed or done by the Liquidating Trustee, or the employee or agent of this
Liquidating Trust only in its capacity as Liquidating Trustee under this
Agreement or in his capacity as employee or agent of the Liquidating Trust.
7.5 Indemnification Each of the Liquidating
---------------
Trustee and each of its employees and agents (each an "Indemnified Person" and
collectively, the "Indemnified Persons") shall be indemnified out of all
Liquidating 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 Liquidating 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 Liquidating 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
misfeasance or in reckless disregard of the Indemnified Person's duties. The
Liquidating 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 Liquidating 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 Liquidating 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 Liquidating 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 Liquidating Trustee under
this Agreement, including without limitation the indemnity obligations
hereunder, whether joint or several, the Liquidating Trust (and by accepting
distributions hereunder, each Beneficiary) hereby grants to the Liquidating
Trustee a continuing security interest in and to any and all of the Liquidating
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 Liquidating
Trustee shall have all of the rights and remedies of a secured party under the
Uniform Commercial Code. In addition, in the event the Liquidating 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 Liquidating Trustee may in its discretion set off and apply any
of the Liquidating Trust Assets as is required to pay and satisfy those
obligations. Promptly after the receipt by the Liquidating Trustee of notice of
any demand or claim or the commencement of any action, suit or proceeding, the
Liquidating 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 Liquidating Trustee to give such notice shall not relieve
any party from any liability which such party may have to the Liquidating
Trustee hereunder. Notwithstanding any obligation to make payments and
deliveries hereunder, the Liquidating Trustee may retain and hold for such time
as it reasonably deems necessary such amount of the Liquidating 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
Liquidating Trustee shall be under no duty to institute any suit, or to take any
remedial procedures under this Liquidating Trust 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.
7.6 Rights of Liquidating Trustees, Employees, Independent Contractors
-------------------------------------------------------------------
and Agents to Own Liquidating Trust Units or Other Property and to Engage in
--------------------------------------------------------------------------------
Other Business
--------------
Any Liquidating Trustee, employee, independent contractor or agent may own, hold
and dispose of Liquidating Trust Units for its or his individual account, and
may exercise all rights thereof and thereunder to the same extent and in the
same manner as if he were not a Liquidating Trustee, employee, independent
contractor or agent. Any Liquidating Trustee, employee, independent contractor
or agent may, in his personal capacity or in a capacity of trustee, 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 Liquidating Trust. Subject to the provisions of Article V
hereof, any Liquidating Trustee, employee, independent contractor or agent of
the Liquidating Trust may be a trustee, 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 Liquidating Trust, and may receive compensation from such
Person as well as compensation as Trustee, employee, independent contractor or
agent or otherwise hereunder so long as such interest is disclosed to the
Liquidating Trustee. None of these activities in and of themselves shall be
deemed to conflict with his duties as Trustee, employee, independent contractor
or agent.
7.7 Contribution Back In the event any
------------------
amount of Liquidating Trust Assets released to a party under this Liquidating
Trust Agreement is invalidated, declared to be fraudulent or preferential or
must otherwise be restored or returned by the Liquidating Trustee in connection
with the insolvency, bankruptcy or reorganization of such party, whether by
order of or settlement before any court or other authority or otherwise, such
party shall contribute back to the Liquidating Trustee an amount such that such
party will be affected by that invalidation, declaration, restoration or return
ratably in proportion to the distributions it received under this Agreement,
together with any related assignment, release or other instrument or document
the Liquidating Trustee may request to restore the status quo ante.
ARTICLE VIII
PROTECTION OF PERSONS DEALING WITH THE LIQUIDATING TRUSTEEARTICLE VIIIPROTECTION
OF PERSONS DEALING WITH THE TRUSTEE
8.1 Action by Liquidating Trustee All action
-----------------------------
required or permitted to be taken by the Liquidating Trustee, in its capacity as
Trustee, shall be taken by a written vote, resolution, or other writing signed
by the Liquidating Trustee, or if there is more than one Liquidating Trustee
then serving, signed by a majority of them.
8.2 Reliance on Statements by the Liquidating Trustee
---------------------------------------------------
Any Person dealing with the Liquidating Trustee
shall be fully protected in relying upon the Liquidating Trustee's certificate
or instrument signed by the Liquidating Trustee that it has authority to take
any action under this Liquidating Trust.
ARTICLE IX
COMPENSATION OF LIQUIDATING TRUSTEEARTICLE IXCOMPENSATION OF TRUSTEE
9.1 Amount of Compensation The
------------------------
compensation of Wilmington Trust Company in its capacity as the initial
Liquidating Trustee shall be in accordance with the terms specified on Schedule
--------
A hereto or upon such other terms and conditions as may be agreed upon by the
Liquidating Trustee and the Beneficiaries holding Liquidating Trust Units
representing at least a majority of the aggregate Beneficial Interests in all of
the Liquidating Trust B accounts. Schedule A shall apply only to the initial
-------- -
Liquidating Trustee and, in the event a successor to the initial Liquidating
Trustee shall serve, such schedule shall be deleted from this Agreement and
neither such deletion nor the substitution of a counterpart schedule applicable
to the successor Liquidating Trustee shall constitute an amendment of this
Agreement
9.2 Dates of Payment The compensation payable
----------------
to the Liquidating Trustee pursuant to the provisions of Section 9.1 shall be in
accordance with Schedule A or, if Schedule A is no longer in force, at such
-------- - -------- -
other times as the Liquidating Trustee may determine.
9.3 Expenses The Liquidating Trustee shall be
--------
reimbursed from the Liquidating 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 Liquidating Trustee or the Manager in negotiating or pursuant to the terms
of this Agreement.
ARTICLE X
THE LIQUIDATING TRUSTEE AND SUCCESSOR LIQUIDATING TRUSTEEARTICLE XTHE TRUSTEE
AND SUCCESSOR TRUSTEE
10.1 Number and Qualification of Liquidating Trustees
---------------------------------------------------
Subject to the provisions of Section 10.3
relating to the period pending the appointment of a successor Liquidating
Trustee, there shall be one Liquidating Trustee of this Liquidating Trust, which
shall be a citizen and resident of or a corporation which is incorporated under
the laws of a state of the United States and, if a corporation, it shall be
authorized to act as a corporate fiduciary under the laws of the State of
Delaware. The number of Liquidating Trustees may be increased or decreased from
time to time by the Liquidating Trustee. There shall at all times be a
Liquidating Trustee hereunder which shall be a bank or trust company organized
and doing business under the laws of the United States, or of any State of the
United States, which at the time of its appointment shall have total capital and
surplus of at least $50,000,000 and shall be authorized under such laws to
exercise corporate trust powers and be subject to supervision or examination by
federal or state authority
If any corporate Liquidating Trustee shall ever change its name, or shall
reorganize or reincorporate, or shall merge with or into or consolidate with any
other bank or trust company, such corporate Liquidating Trustee shall be deemed
to be a continuing entity and shall continue to act as a Liquidating Trustee
hereunder with the same liabilities, duties, powers, titles, discretions and
privileges as are herein specified for a Liquidating Trustee.
10.2 Resignation and Removal Any
------------------------
Liquidating Trustee may resign and be discharged from the Liquidating Trust
hereby created by giving written notice thereof to any remaining Liquidating
Trustee or Liquidating Trustees or by giving written notice to the Beneficiaries
holding Liquidating Trust Units representing an aggregate of at least a majority
of the total Beneficial Interests in all of the Liquidating Trust B accounts and
the Grantor. Such resignation shall become effective on the day specified in
such notice or upon the appointment of such Liquidating Trustee's successor and
such successor's acceptance of such appointment, whichever is earlier. Any
Liquidating Trustee may be removed at any time, with or without cause, by
Beneficiaries having an aggregate Beneficial Interest of at least a majority of
the total Beneficial Interests in the Liquidating Trust. All obligations of the
Liquidating Trustee hereunder shall cease and terminate on the effective date of
its resignation and its sole responsibility thereafter shall be to hold the
Liquidating Trust Assets for a period of thirty (30) calendar days following the
effective date of resignation, at which time, if a successor Liquidating Trustee
shall have been appointed and have accepted such appointment in a writing to the
Beneficiaries, then upon written notice thereof given by a representative of
the Beneficiaries to the resigning Liquidating Trustee, the resigning
Liquidating Trustee shall deliver the Liquidating Trust Assets to the successor
Liquidating Trustee. If a successor Liquidating Trustee shall not have been
appointed within a thirty (30) day period from the predecessor Liquidating
Trustee's resignation, for any reason whatsoever, the resigning Liquidating
Trustee shall deliver the Liquidating Trust Assets to a court of competent
jurisdiction in the county in which the Liquidating Trust Assets are there being
held and give written notice of the same to the parties hereto.
The resigning Liquidating Trustee shall be entitled to payment of any
unpaid fees (which shall be pro-rated as of the effective date of the
resignation) and expenses and to reimbursement by the Beneficiaries for any
expenses incurred in connection with the transfer of the Liquidating Trust
Assets pursuant to and in accordance with the provisions of this section.
10.3 Appointment of Successor Should
------------------------
at any time a Liquidating Trustee resign or be removed, die, become mentally
incompetent or incapable of action (as determined by the Beneficiaries holding
Liquidating Trust Units representing an aggregate of at least a majority of the
total Beneficial Interests in the Liquidating Trust), or be adjudged a bankrupt
or insolvent, unless any remaining Liquidating Trustees shall decrease the
number of Liquidating Trustees of the Liquidating Trust pursuant to Section 10.1
hereof, a vacancy shall be deemed to exist and a successor shall be appointed by
any remaining Liquidating Trustees. If such a vacancy is not filled by any
remaining Liquidating Trustees within ninety (90) days, the remaining
Liquidating Trustees must notify the Beneficiaries of their inability to fill
such vacancy, and the Beneficiaries may, pursuant to Article XII hereof, call a
meeting to appoint a successor Liquidating Trustee by Beneficiaries holding
Liquidating Trust Units representing an aggregate of at least a majority of the
total Beneficial Interests in the Liquidating Trust. Pending the appointment of
a successor Liquidating Trustee, the remaining Liquidating Trustee or
Liquidating Trustees then serving may take any action in the manner set forth in
Section 8.1.
10.4 Acceptance of Appointment by Successor Liquidating Trustee
--------------------------------------------------------------
Any successor Liquidating
Trustee appointed hereunder shall execute an instrument accepting such
appointment hereunder and shall deliver one counterpart thereof to each of the
other Liquidating Trustees and, in case of a resignation, to the retiring
Liquidating Trustee. Thereupon such successor Liquidating 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 Liquidating Trust
hereunder with like effect as if originally named therein; but the retiring
Liquidating Trustee shall nevertheless, when requested in writing by the
successor Liquidating Trustee or by the remaining Liquidating Trustees, execute
and deliver an instrument or instruments conveying and transferring to such
successor Liquidating Trustee upon the trust herein expressed, all the estates,
properties, rights, powers and trusts of such retiring Liquidating Trustee, and
shall duly assign, transfer and deliver to such successor Liquidating Trustee
all property and money held by him hereunder.
10.5 Bonds No bond shall be required of the original
-----
Liquidating Trustee hereunder, and no bond shall be required of any successor
Liquidating 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 XI
CONCERNING THE BENEFICIARIESARTICLE XICONCERNING THE BENEFICIARIES
11.1 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 Liquidating Trustee, the
appointment of a successor Liquidating 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 XII.
11.2 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 Liquidating Trustees upon or under or
with respect to any Liquidating Trust Assets or the agreements relating to or
forming part of any Liquidating Trust Assets, and the Beneficiaries do hereby
waive any such right.
11.3 Requirement of Undertaking
----------------------------
The Liquidating 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 Liquidating Trustee for any
action taken or omitted by it as Liquidating 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 Liquidating Trustee.
ARTICLE XII
MEETING OF BENEFICIARIESARTICLE XII MEETING OF BENEFICIARIES
12.1 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 Liquidating Trustees.
12.2 Meeting Called by Liquidating Trustee
----------------------------------------
The Liquidating Trustee may at any time call a meeting of the
Beneficiaries of the Liquidating Trust to be held at such time and at such place
within the State of Delaware (or elsewhere if so determined by a majority of the
Liquidating Trustees) as the Liquidating Trustee shall determine. Written
notice of every meeting of the Beneficiaries shall be given by the Liquidating
Trustee (except as provided in Section 12.3), 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 ten (10) days before such meeting is to be held to all of the
Beneficiaries of record not more than sixty (60) 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 Liquidating Trust.
12.3 Meeting Called on Request of Beneficiaries
-------------------------------------------
Within thirty (30) days after written request to
the Liquidating Trustee by Beneficiaries holding Liquidating Trust Units
representing at least a majority of the aggregate Beneficial Interests in the
Liquidating Trust to call a meeting of all of the Beneficiaries of the
Liquidating Trust, which written request shall specify in reasonable detail the
action proposed to be taken, the Liquidating Trustee shall proceed under the
provisions of Section 12.2 to call a meeting of the Beneficiaries, and if the
Liquidating Trustee fails to call such meeting within such thirty (30) day
period then such meeting may be called by Beneficiaries holding Liquidating
Trust Units representing at least a majority of the aggregate Beneficial
Interests in the Liquidating Trust.
12.4 Persons Entitled to Vote at Meeting of Beneficiaries
----------------------------------------------------------
2. Each Beneficiary shall
be entitled to vote at a meeting of the Beneficiaries of the Liquidating 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 Liquidating Trust Units in
the Liquidating Trust 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.
12.5 Quorum At any meeting of Beneficiaries of a
------
Liquidating Trust B account, the presence of Beneficiaries holding Liquidating
Trust Units representing at least a majority of the aggregate Beneficial
Interests in the Liquidating Trust sufficient to take action on any matter for
the transaction of which such meeting was called shall be necessary to
constitute a quorum; but if less than a quorum be present, Beneficiaries having
aggregate Beneficial Interests of more than 50% of the total Beneficial
Interests in the Liquidating Trust of all Beneficiaries represented at the
meeting may adjourn such meeting with the same effect and for all intents and
purposes as though a quorum had been present.
12.6 Adjournment of Meeting Subject to
----------------------
Section 12.5 hereof, any meeting of Beneficiaries of the Liquidating Trust may
be adjourned from time to time and a meeting may be held at such adjourned time
and place without further notice.
12.7 Conduct of Meetings The Liquidating
--------------------
Trustee shall appoint the Chairman and the Secretary of the meeting. The vote
upon any resolution submitted to any meeting of Beneficiaries shall be by
written ballot. An Inspector of Votes, appointed by the Chairman of the
meeting, shall count all votes cast at the meeting for or against any resolution
and shall make and file with the Secretary of the meeting their verified written
report.
12.8 Record of Meeting A record of the
-------------------
proceedings of each meeting of Beneficiaries of the Liquidating Trust shall be
prepared by the Secretary of the meeting. The record shall be signed and
verified by the Secretary of the meeting and shall be delivered to the
Liquidating Trustee to be preserved by it. Any record so signed and verified
shall be conclusive evidence of all the matters therein stated.
ARTICLE XIII
AMENDMENTSARTICLE XIIIAMENDMENTS
13.1 Consent of Beneficiaries At the
------------------------
direction or with the consent of Beneficiaries holding Liquidating Trust Units
representing at least a majority of the aggregate Beneficial Interests in the
Liquidating Trust, 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 Liquidating 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 Liquidating Trust; provided, however, that no such amendment shall permit
the Liquidating 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 Liquidating Trust Assets in the Liquidating Trust Bt 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 Liquidating Trust Units or
to comply with applicable laws, including tax laws, so long as such amendment
has been approved by the Liquidating Trustee.
13.2 Notice and Effect of Amendment
----------------------------------
Promptly after the execution by the Liquidating Trustee of any such
declaration of amendment, the Liquidating Trustee shall give notice of the
substance of such amendment to the Beneficiaries of the Liquidating Trust or, in
lieu thereof, the Liquidating Trustee may send a copy of the amendment to each
Beneficiary. Upon the execution of any such declaration of amendment by the
Liquidating 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 Liquidating Trustee and the
Beneficiaries under this Agreement with respect to the Liquidating 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.
13.3 Liquidating Trustee's Declining to Execute Documents
-----------------------------------------------------
If, in the reasonable opinion of the
Liquidating Trustee, any document required to be executed pursuant to the terms
of Section 13.2 hereof adversely affects any right, obligation, immunity or
indemnity in favor of the Liquidating Trustee under this Agreement, the
Liquidating Trustee may in its discretion decline to execute such document.
ARTICLE XIV
MISCELLANEOUS PROVISIONSARTICLE XIV MISCELLANEOUS PROVISIONS
14.1 Filing Documents This Agreement shall
-----------------
be filed or recorded in such office or offices as the Liquidating 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 Liquidating Trustee
and shall be available at all times during regular business hours for inspection
by any Beneficiary or his duly authorized representative. The Liquidating
Trustee shall file or record any amendment of this Agreement in the same places
where the original Agreement is filed or recorded. The Liquidating Trustee
shall file or record any instrument which relates to any change in the office of
the Liquidating Trustee in the same places where the original Agreement is filed
or recorded.
14.2 Intention of Parties to Establish Liquidating 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.
14.3 Beneficiaries Have No Rights or Privileges as Holders of
----------------------------------------------------------------
Investment Trust B 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 Investment Trust B Units.
14.4 Laws as to Construction The
--------------------------
Liquidating Trustee, and the Beneficiaries (by their acceptance of any
distributions made to them pursuant to this Agreement), consent and agree that
this Liquidating Trust 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. Each of the parties hereto irrevocably
submits to the exclusive jurisdiction of the courts of the state of New York and
the United States District Court for any District within such state for the
purpose of any suit, action, proceeding or judgment relating to or arising out
of this Liquidating Trust Agreement and the transactions contemplated hereby.
Service of process in connection with any such suit, action or proceeding may be
served on each party hereto anywhere in the world by the same methods as are
specified for the giving of notices under this Liquidating Trust Agreement.
Each of the parties hereto irrevocably consents to the jurisdiction of any such
court in any such suit, action or proceeding and to the laying of venue in such
court. Each party hereto irrevocably waives any objection to the laying of
venue of any such suit, action or proceeding brought in such courts and
irrevocably waives any claim that any such suit, action or proceeding brought in
any such court has been brought in an inconvenient forum. Each of the parties
hereto agrees that a final judgment in any action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. All parties waive the right to a jury
trial of all such disputes, claims and demands.
14.5 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.
14.6 Notices Any notice or other communication by the
-------
Liquidating Trustee to any Beneficiary shall be deemed to have been sufficiently
given, for all purposes, if deposited, postage prepaid, in a post office or
letter box addressed to such Person at his address as shown in the records of
the Liquidating Trust.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if delivered personally or sent by
cable, telegram, telecopier or telex to the Liquidating Trustee at the following
address or at such other addresses as shall be specified by the Liquidating
Trustee:
If to the Liquidating Trustee:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust Administration
Facsimile: (000) 000-0000
with a copy to:
Putney, Twombly, Hall & Hirson LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
14.7 Counterparts.14.7 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.
[Remainder of page intentionally left blank. Signature page follows.]
IN WITNESS WHEREOF, the Managing Trustee of Investment Trust B has caused
this Agreement to be executed an authorized officer, and the Liquidating Trustee
hereunder has executed this Agreement, as Liquidating Trustee and not as an
individual, this 31st day of December 2002.
AFG Investment Trust B
By: AFG XXXX Corporation, Trustee
By: /s/ Xxxx X. Xxxxx
--------------------
Xxxx X. Xxxxx, President
LIQUIDATING TRUSTEE:
WILMINGTON TRUST COMPANY
By: /s/ Xxxxx X. XxXxxxxx
------------------------
Name: Xxxxx X. XxXxxxxx
Title: Authorized Signer
5
B651139.3
B651139.3
SCHEDULE A
----------
WILMINGTON TRUST COMPANY
SCHEDULE OF FEES
to act as
TRUSTEE, REGISTRAR, TRANSFER AGENT AND DISTRIBUTION AGENT
LIQUIDATING TRUST
EXHIBIT A
---------
FORM OF XXXX OF SALE, ASSIGNMENT, ACCEPTANCE
AND ASSUMPTION AGREEMENT
This XXXX OF SALE, ASSIGNMENT, ACCEPTANCE AND ASSUMPTION AGREEMENT, made,
executed and entered into as of December 31, 2002, by and among AFG XXXX
Corporation, not in its individual capacity, but solely as Managing Trustee
(the "Managing Trustee") of AFG Investment Trust B, a Delaware business trust
(the "Assignor") and Wilmington Trust Company, a Delaware banking corporation,
--------
not in its individual capacity, but solely as trustee (the "Trustee") of the AFG
-------
Investment Trust B Liquidating Trust (the "Liquidating Trust").
------------------
RECITALS
--------
WHEREAS, the Trustee and the Assignor are parties to a Liquidating Trust
Agreement dated as of the date hereof (the "Agreement"), pursuant to which the
---------
Assignor has created a Liquidating Trust and engaged the Trustee as trustee to
administer the Liquidating Trust in furtherance of a Plan of Complete
Liquidation and Dissolution, entered into by the Assignor, the Managing Trustee
and certain other parties including the Trustee in its capacity as the Delaware
Trustee of the Assignor on December 31, 2002 (the "Plan"); and
----
WHEREAS, the Agreement contemplates that the Assignor will place, as of the
date hereof and in furtherance with the Plan, all of its undistributed assets,
including but not limited to, cash, equipment and securities, along with certain
cash reserves subject to disbursement for the Assignor's and the Liquidating
Trust's contingent liabilities, into the Liquidating Trust established to
receive said assets and reserves; and
WHEREAS, the Trustee and the Assignor now desire to carry out the intent
and purpose of the Agreement by the execution and delivery to the Trustee by the
Assignor of this instrument evidencing the conveyance, assignment, transfer,
sale and delivery to the Trustee of the Transferred Assets (as hereinafter
defined) the acceptance by the Trustee of same and the assumption by the Trustee
of the Assumed Obligations (as hereinafter defined);
NOW, THEREFORE, in consideration of the foregoing premises and for $10 and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged:
ASSIGNMENT
----------
The Assignor does hereby convey, assign, transfer, sell and deliver unto
the Trustee and its successors and assigns, forever, for the benefit of the
Liquidating Trust, all of Assignor's right, title and interest in, to and under
all of the assets of the Assignor as set forth and more fully described by
category of asset and more fully enumerated by Assignor on Exhibit A, hereto,
------- -
including, without limitation any accounts receivable, limited partnership
interests, beneficial interests, rights in litigation, security interests,
contract rights or agreements, rights to payment or distributions or similar
rights that Assignor may possess in same (together, the "Transferred Assets").
------------------
ACCEPTANCE AND ASSUMPTION
---------------------------
The Trustee, not individually but solely in its capacity as Trustee,
accepts the foregoing conveyance, assignment, transfer and delivery of the
Transferred Assets and agrees to assume all liabilities and obligations relating
to the Transferred Assets to the extent specifically set forth in the Agreement
(the "Assumed Obligations").
--------------------
TO HAVE AND TO HOLD the Transferred Assets and the Assumed Obligations unto
the Trustee, its successors and assigns, FOREVER, for the benefit of the
Liquidating Trust.
The Assignor hereby constitutes and appoints the Trustee and its successors
and assigns as its true and lawful attorney-in-fact in connection with the
transactions contemplated by this instrument, with full power of substitution,
in the name and stead of the Assignor but on behalf of and for the benefit of
the Trustee and its successors and assigns, to demand and receive any and all of
the assets, properties, rights and business hereby conveyed, assigned, and
transferred or intended so to be, and to give receipt and releases for and in
respect of the same and any part thereof, and from time to time to institute and
prosecute, in the name of the Assignor or otherwise, for the benefit of the
Liquidating Trust or its successors and assigns, proceedings at law, in equity,
or otherwise, which the Trustee or its successors or assigns reasonably deem
proper in order to collect or reduce to possession or endorse any portion of the
Transferred Assets and to do all acts and things in relation to the assets which
the Trustee or its successors or assigns reasonably deem desirable.
This instrument shall be binding upon and shall inure to the benefit of the
respective successors and assigns of the Assignor and the Trustee.
This instrument shall be construed and enforced in accordance with the laws
of the State of Delaware, without regard to conflict of law.
[The remainder of this page is left intentionally blank.]
IN WITNESS WHEREOF, the undersigned have executed this Xxxx of Sale, Assignment,
Acceptance and Assumption Agreement under seal on the date first above written.
ASSIGNOR:
AFG INVESTMENT TRUST B
a Delaware business trust
By: AFG XXXX CORPORATION, not in its individual
capacity, but solely as its Managing Trustee
By: ____________________________
Name:
Title:
By: WILMINGTON TRUST COMPANY, not in its individual
capacity, but solely as its Delaware Trustee
By: ____________________________
Name:
Title:
TRUSTEE:
WILMINGTON TRUST COMPANY, not in its individual
capacity but solely as Trustee of the
AFG Investment Trust B Liquidating Trust
By: ____________________________
Name:
Title:
EXHIBIT A
TRANSFERRED ASSETS
------------------
Described by Category of Asset
------------------------------
I. Cash and Cash Equivalents
$738,708.31 as of 12/20/02
II. Accounts Receivable
All of the receivables listed on the schedule attached hereto dated
12/19/02
III. Interest in EFG Kirkwood LLC
20% of the membership interests in EFG Kirkwood LLC, a Delaware limited
liability company, held by Assignor
IV. Interest in MILPI Holdings, LLC
17% of the membership interests in MILPI Holdings, LLC, a Delaware limited
liability company, held by Assignor
V. Interest in EFG Palisades LLC
20% of the membership interests in EFG Palisades LLC, a Delaware limited
liability company, held by Assignor
VI. Beneficial Interests in Trusts
All of the beneficial interests held by Assignor in the common law trusts on the
schedule attached hereto dated 12/19/02, such beneficial interest being all the
beneficial interest in such trusts except as noted.
VII. Equipment
All of the equipment listed on the schedule attached hereto dated 12/19/02
The amounts or schedules referenced in I, II and VIII above will be updated and
replaced by schedules dated 12/31/02 once all transactions occurring on or prior
to such date are scheduled by the Assignor.
