EXHIBIT 2.2
JMXI LIQUIDATING TRUST AGREEMENT
▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, LIQUIDATING TRUSTEE
▇▇▇▇▇ FARGO DELAWARE TRUST COMPANY, DELAWARE TRUSTEE
MAY 1, 2003
JMXI LIQUIDATING TRUST AGREEMENT
▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, LIQUIDATING TRUSTEE
▇▇▇▇▇ FARGO DELAWARE TRUST COMPANY, DELAWARE TRUSTEE
THIS LIQUIDATING TRUST AGREEMENT is made and entered into
effective the 1st day of May, 2003, by and among JMXI, Inc., a Delaware
corporation (the "CORPORATION"), and ▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as liquidating trustee (the "LIQUIDATING TRUSTEE") and ▇▇▇▇▇ FARGO
DELAWARE TRUST COMPANY, the Liquidating Trustee's affiliate, as Delaware trustee
(the "DELAWARE TRUSTEE") (the Liquidating Trustee and the Delaware Trustee,
separately without distinction or collectively, the "TRUSTEES," not in their
individual capacities but solely as trustees of the trust created hereunder),
for the benefit of the Corporation and the Beneficiaries (as defined herein).
RECITALS
WHEREAS, on July 31, 2002, the stockholders of the Corporation approved the Plan
of Dissolution and Liquidation;
WHEREAS, on April 22, 2003, the Board of Directors of the Corporation approved
a Plan of Distribution (the "PLAN");
WHEREAS, the Plan provides, among other things, for the establishment of a
liquidating trust to which all Assets of the Corporation (other than those
previously distributed to the stockholders of the Corporation pursuant to the
Plan) will be transferred, assigned and conveyed for the benefit of the
Beneficiaries;
WHEREAS, on the Effective Date, the Corporation desires to establish a
liquidating trust to be known as the JMXI Liquidating Trust ("TRUST") and the
Corporation desires to (i) assign, transfer and convey unto the Trust all of its
right, title, benefit and interest in and to the Assets, and (ii) cause the
Trust to assume all of the Trust Property Liabilities and other Liabilities;
WHEREAS, the Corporation desires to appoint the Liquidating Trustee and the
Delaware Trustee as trustees of the Trust;
WHEREAS, the Liquidating Trustee and Delaware Trustee are willing to serve as
trustees of the Trust;
WHEREAS, for federal income tax purposes, the Corporation's assignment,
conveyance and transfer of the Assets to the Trust pursuant to Article Two
hereof is deemed to be the final liquidating distribution pursuant to the Plan
and Section 331 of the Code from the Corporation to the Corporation
Stockholders; and
WHEREAS, for federal income tax purposes, such Corporation Stockholders are
deemed to contribute the Assets to the Trust that the Corporation is assigning,
conveying and transferring to the Trust pursuant to Article Two hereof.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and
agreements contained herein, the Corporation and the Trustees hereby agree as
follows:
ARTICLE 1
DEFINITIONS
1.1 CERTAIN TERMS DEFINED. For all purposes of this Agreement,
unless the context otherwise requires:
(a) "ADVISORY SERVICES" shall have the meaning provided
in Section 13.1 hereof.
(b) "AGREEMENT" shall mean this Liquidating Trust
Agreement, as it may be amended from time to time pursuant to the terms hereof.
(c) "ASCERTAINABLE LIABILITIES" shall mean (i) any claims
(excluding any Litigation Liabilities), of which the Liquidating Trustee has
actual knowledge or which become known to the Liquidating Trustee, which have
been asserted in writing, or otherwise overtly asserted or identified as claims
against the Trust Estate, including, but not limited to, all Trustees' Expenses
and those Trust Property Liabilities listed on Schedule F attached hereto or
(ii) any future claims that have not yet arisen or have not been made known to
the Liquidating Trustee, but that, based on facts known to the Liquidating
Trustee, are likely to arise or to become known within ten (10) years after the
date hereof.
(d) "ASSETS" shall mean all of the rights, titles,
benefits and interest of the Corporation in and to (i) the Subsidiaries listed
on SCHEDULE C attached hereto, (ii) sub-lease payments, properties and other
assets listed on SCHEDULE A attached hereto, together with (iii) all other
assets, properties, claims and rights of the Corporation of whatever kind or
character and wheresoever situated to which the Corporation would otherwise have
been entitled to before or after the Effective Date excluding the Initial
Liquidating Distribution.
(e) "BENEFICIARIES" shall mean the Corporation
Stockholders listed on SCHEDULE B attached hereto, who in accordance with the
terms hereof, shall have received appropriate Beneficiary's Percentage Interests
in the Trust upon the Effective Date in such amounts as set forth next to their
names on SCHEDULE B.
(f) "BENEFICIARY'S PERCENTAGE INTEREST" shall mean the
share of each Beneficiary in the Trust expressed as a percentage determined by
dividing the aggregate number of shares of Common Stock (as defined herein) held
by such Corporation Stockholder on the Effective Date by the aggregate number of
issued and outstanding shares of Common Stock held by all Corporation
Stockholders on the Effective Date and multiplying the result by one hundred
(100).
(g) "BOARD" shall mean the board of directors of the
Corporation.
(h) "CODE" shall mean the Internal Revenue Code of 1986,
as amended.
(i) "COMMON STOCK" shall mean the common stock, par value
$0.01 per share, of the Corporation outstanding on the Effective Date.
(j) "CORPORATION STOCKHOLDER" shall mean each record
holder of Common Stock on the Effective Date that is listed in the Corporation
Stockholder List (as defined herein) that is held by the Corporation's transfer
agent, American Stock Transfer & Trust Corporation; it being agreed that if a
Corporation Stockholder holds Common Stock in street name for underlying
beneficial holders, such Corporation Stockholder may hold Beneficiary's
Percentage
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Interests in street name for the same beneficial holders.
(k) "CORPORATION STOCKHOLDER LIST" shall have the meaning
provided in Section 11.1(a) hereof.
(l) "DELAWARE LOCATION REQUIREMENT" shall have the
meaning provided in Section 6.1(a) hereof.
(m) "DELAWARE TRUSTEE" shall mean ▇▇▇▇▇ Fargo Delaware
Trust Company, not in its individual capacity but solely as Delaware Trustee of
the Trust under this Agreement, or any successor to ▇▇▇▇▇ Fargo Delaware Trust
Company, as Delaware Trustee of the Trust.
(n) "DGCL" shall mean the Delaware General Corporation
Law (8 Del. C. Section 101 et seq.), as amended from time to time.
(o) "EFFECTIVE DATE" shall mean May 1, 2003, the date on
which the Corporation will transfer Assets and Liabilities to the Trust in
accordance with Section 2.2 herein, determine the Stockholders (and thus the
Beneficiaries of the Trust) and distribute the Beneficiary's Percentage Interest
to each Beneficiary.
(p) "FINAL LIABILITIES" shall mean: (i) Ascertainable
Liabilities (including Trust Property Liabilities and Trustees' Expenses) which
the Liquidating Trustee determines shall be accepted or settled and paid out
from the Trust Estate in accordance with the procedures set forth in Section 9.1
hereof; (ii) Litigation Liabilities which are evidenced by any final
non-appealable judgments, orders or decrees; stipulations or other agreements
(including any binding arbitration awards) that have the effect of any such
final judgments, orders or decrees and (iii) Litigation Liabilities which the
Liquidating Trustee determines shall be accepted or settled and paid out from
the Trust Estate in accordance with the procedures set forth in Section 9.1
hereof.
(q) "FINAL LIQUIDATING DISTRIBUTION" shall have the
meaning provided in Section 9.8(b) hereof.
(r) "INITIAL LIQUIDATING DISTRIBUTION" shall mean $0.10
per share which shall have been paid to the Corporation's Shareholders
immediately prior to the Effective Date.
(s) "INTERIM LIQUIDATING DISTRIBUTION" shall have the
meaning provided in Section 9.8(a) hereof.
(y) "LEASE AGREEMENTS" shall mean all lease agreements
entered into by the Corporation prior to the adoption of the Plan and which
shall continue after the Effective Date, including, but not limited to, such
lease agreements as set forth on SCHEDULE D attached hereto.
(z) "LIABILITIES" shall mean any unsatisfied debts,
claims, judgments, decrees, suits or other payment obligations, whether
contingent or fixed, acknowledged or disputed as to validity, or identified or
asserted prior to or after the Effective Date related to (i) Ascertainable
Liabilities (including Trust Property Liabilities and Trustees' Expenses); (ii)
Litigation Liabilities and (iii) Final Liabilities.
(aa) "LIQUIDATING TRUSTEE" shall mean ▇▇▇▇▇ Fargo Bank
Minnesota, National Association, not in its individual capacity but solely in
its capacity as Liquidating Trustee of the Trust under this Agreement, or any
successor to ▇▇▇▇▇ Fargo Bank Minnesota, National Association as Liquidating
Trustee of the Trust.
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(bb) "LITIGATION LIABILITIES" shall mean (i) claims which
involve any legal action or proceeding for which the Delaware Trustee or the
Liquidating Trustee receives service of process; (ii) any pending claims with
respect to litigation of which the Corporation is aware of on the Effective
Date, including, but not limited to, those claims listed on SCHEDULE E attached
hereto or (iii) any future claims with respect to litigation that have not yet
arisen or have not been made known to the Liquidating Trustee, but that, based
on facts known to the Liquidating Trustee, are likely to arise or to become
known within ten (10) years after the date hereof.
(cc) "PERMITTED INVESTMENTS" shall mean demand and time
deposits at savings institutions, short-term certificates of deposit or Treasury
bills, or in investment grade commercial paper (if, in the opinion of nationally
recognized tax counsel to the Trust, such investment would not cause the Trust
to fail to qualify as a liquidating trust for U.S. federal tax purposes),
securities with short-term original or remaining maturities issued by state or
local governments (or agencies or instrumentalities thereof), or AAA rated money
market funds (which may be sponsored or provided by the Liquidating Trustee or
any affiliate thereof.
(dd) "PERSON" shall mean any individual, corporation,
company, voluntary association, partnership, limited liability company, joint
venture, trust, unincorporated association or organization or government (or any
agency, authority, instrumentality or political subdivision thereof).
(ee) "PLAN" shall have the meaning provided in the
recitals.
(ff) "PROTECTED PARTY" shall mean any Person who was or is
a party or is threatened to be made a party to any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
or investigative, including any action or suit by or in the right of the
Corporation to procure a judgment in its favor, by reason of the fact that such
Person is or was an officer or director of the Corporation.
(gg) "RELEVANT TRUSTEE" shall have the meaning provided in
Section 15.3 hereof.
(hh) "RENOUNCED INTEREST" shall have the meaning provided
in Section 11.4 hereof.
(ii) "RESERVE" shall have the meaning provided in Section
8.3(n) hereof.
(jj) "SEC" shall mean the United States Securities and
Exchange Commission.
(kk) "SUBSIDIARIES" shall mean all domestic and foreign
entities which the Corporation owns as of the Effective Date, including, but not
limited to the list of all domestic and foreign entities, including the address
and principal officers of each entity is set forth on SCHEDULE C attached
hereto.
(ll) "THIRD PARTY CLAIMS" shall have the meaning provided
in Section 12.3 hereof.
(mm) "TRANSFER" shall have the meaning provided in Section
2.2 hereof.
(nn) "TRUST" shall have the meaning provided in Section
2.1 hereof and refer to
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the JMXI Liquidating Trust.
(oo) "TRUST ACT" shall mean the Delaware Statutory Trust
Act (12 Del. C. Section 3801 et seq.), as amended from time to time.
(pp) "TRUST ADVISOR" shall have the meaning provided in
Section 13.1 hereof.
(qq) "TRUST ADVISOR EXPENSES" shall have the meaning
provided in Section 13.1 hereof.
(rr) "TRUST ASSETS" shall have the meaning provided in
Section 2.2 hereof.
(ss) "TRUST EXPENSES" shall mean all pre-transfer
Corporation expenses, together with all post-transfer expenses of the Trust
(tt) "TRUST ESTATE" shall mean rights to all Assets
transferred and delivered by the Corporation to the Trust and held by the Trust
from time to time in trust pursuant to this Agreement, including Trust Receipts.
(uu) "TRUST PROPERTY LIABILITIES" shall mean the
liabilities listed on SCHEDULE F attached hereto (whether such liabilities are
or will be absolute, accrued, asserted, fixed, contingent or otherwise) of the
Corporation arising out of (i) the Lease Agreements entered into by the
Corporation; (ii) the ownership by the Corporation of the Assets or (iii) any
other liabilities arising out of the conduct by the Corporation from the
activities in which it engaged prior to the adoption of the Plan.
(vv) "TRUST RECEIPTS" shall mean all income including, but
not limited to, interest and other receipts from investment of the Trust Estate
and all proceeds from the sale, transfer, collection (including rents from
sub-lessors of the property described by the Lease Agreements) or other
disposition of the Trust Estate.
(ww) "TRUSTEES" shall mean the Liquidating Trustee or the
Delaware Trustee separately, or the two of them collectively as the context may
require, and their respective successor or successors.
(xx) "TRUSTEES' EXPENSES" shall mean all such amounts paid
by the Trust to the Trustees (i) in consideration of the performance of its
duties and obligations as Trustees and (ii) for reimbursement for certain
expenses incurred pursuant to the performance of the Trustees' duties hereunder
as described on EXHIBIT A attached hereto.
Any defined terms used herein that are not otherwise defined shall have the
meaning set forth in the Plan.
1.2 MEANING OF OTHER TERMS. Except where the context otherwise
requires, words importing the masculine gender include the feminine and the
neuter, if appropriate, words importing the singular number shall include the
plural number and vice versa, and words importing persons shall include firms,
associations, and corporations. All references herein to articles, sections, and
other subdivisions refer to the corresponding articles, sections, and other
subdivisions of this Agreement; and the words herein, hereof, hereby, hereunder,
and words of similar import, refer to this Agreement as a whole and not to any
particular article, section, or subdivision of the Agreement.
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ARTICLE 2
CREATION OF TRUST
2.1 CREATION OF TRUST. It is the intention of the parties to form
a statutory trust pursuant to the Trust Act and that this Agreement constitute
the governing instrument of such statutory trust (the "TRUST"). The Trust is a
liquidating trust pursuant to which the Trust is to hold the Trust Estate and
dispose of all or part of the same in accordance with this Agreement and the
Plan. The Delaware Trustee has filed a Certificate of Trust with the Secretary
of State of the State of Delaware pursuant to Section 3810(a) of the Trust Act.
The execution and filing of the Certificate of Trust by the Delaware Trustee is
hereby ratified, authorized and approved. The Trustees shall have the power and
authority and are hereby authorized and empowered, to execute and file with the
Secretary of State of the State of Delaware any other certificate required or
permitted under the Trust Act to be filed with the Secretary of State.
2.2 TRANSFER OF ASSETS TO TRUST. As of the Effective Date, the
Corporation does hereby convey and assign, transfer and convent unto the Trust
(the "TRANSFER"), all of the rights, titles, benefits and interest of the
Corporation in and to the Assets (the "TRUST ASSETS") for the benefit of the
Beneficiaries. Prior to the creation of the Trust, the Corporation shall have
executed or caused to be executed and delivered to, or upon the order of, the
Liquidating Trustee, any and all documents and other instruments as may be
necessary or useful to convert the Assets to, and to confirm title to the Trust
of the Assets. The Corporation will, upon reasonable request of the Trustees,
execute, acknowledge and deliver such further instruments and do such further
acts as may be necessary or proper to transfer to the Trust any portion of the
Assets to be conveyed hereby and to vest in the Trust the powers, instruments or
funds in trust hereunder.
2.3 ASSUMPTION OF THE CORPORATION'S LIABILITIES. The Trust hereby
assumes all of the Trust Property Liabilities (including those with respect to
contingent or unliquidated claims) and any other Liabilities, and hereafter
agrees to cause the Trust to pay, discharge and perform, when due, all of the
Final Liabilities. The Trust will execute, acknowledge and deliver further
instruments, undertakings and other agreements and do such further acts as may
be necessary or proper to cause and effect the assumption of the Trust Property
Liabilities and other Liabilities. Should any liability be asserted against the
Liquidating Trustee as a result of the assumption made in this Section, the
Liquidating Trustee may use such part of the Trust Estate that it deems
necessary or appropriate in contesting any such liability or payment thereof.
2.4 ASSIGNMENT FOR BENEFIT OF BENEFICIARIES. Effective upon the
Transfer, the Trust hereby accepts any and all of the Corporation's assets,
interests and rights held as of the Effective Date, to hold in trust solely for
the benefit of the Beneficiaries of the Trust, and retains only such incidents
of ownership as are necessary to undertake the actions and transactions
authorized herein.
ARTICLE 3
NAME, DURATION AND TERMINATION OF TRUST
3.1 NAME. The Trust shall be known as the "JMXI LIQUIDATING
TRUST," in which name the Trust shall have power and authority and is hereby
authorized and empowered, without the need for further action on part of the
Trust. The Trustees shall have the power and authority
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and are hereby authorized and empowered, to conduct the business of the Trust,
make and execute contracts and other instruments and ▇▇▇ and be sued on behalf
of the Trust.
3.2 PRINCIPAL PLACE OF BUSINESS AND REGISTERED OFFICE OF TRUSTEE.
The principal place of business for the Trust shall be ▇▇▇▇▇ Fargo Bank
Minnesota, N.A., Sixth and Marquette; MAC ▇▇▇▇▇-▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or
such location or locations as the Liquidating Trustee may select in accordance
with applicable law and designate by written notice to the Beneficiaries. The
registered office of the Delaware Trustee is ▇▇▇▇▇ Fargo Delaware Trust Company,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other
location as the Delaware Trustee may elect.
3.3 DURATION AND TERMINATION. Subject to Section 3.5, the Trust
shall dissolve upon the first to occur of the following: (i) three years from
the date of this Agreement, or (ii) when all of the Assets of the Trust Estate
have been distributed in kind to the Beneficiaries or sold the Assets and
distributed the proceeds to the Beneficiaries, and shall have paid or otherwise
discharged all of the Final Liabilities; provided, however, that the Trust may
be dissolved only if the Liquidating Trustee has (y) determined that, to the
best of its knowledge, there are no claims with respect to Liabilities that are
likely to arise or become known to the Liquidating Trustee, or (z) made such
provision as will be reasonably likely to be sufficient to provide payments for
any claims with respect to Liabilities that have not yet arisen but that, based
on facts known to the Liquidating Trustee, are likely to arise prior to
dissolution. Notwithstanding the expiration of the initial three year term
pursuant to the foregoing clause (i), if the Trust Estate has not been fully
distributed or business of the Trust has not been completed, then the
Liquidating Trustee may, in its discretion, elect for the three year anniversary
of the date hereof not to be an event of dissolution and for the Trust to remain
in existence for up to three successive one year periods; provided, however,
that in order for the third anniversary of the date hereof not to constitute an
event of dissolution as aforesaid, the Liquidating Trustee shall have received
an opinion of counsel to the Trust regarding the registration and reporting
requirements of the Trust under the Securities Act of 1933, as amended, and the
Securities Exchange Act of 1934, as amended, and any other matters, including
tax matters, the Liquidating Trustee shall request with regard to compliance by
the Trust with applicable federal securities and tax laws.
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3.4 TITLE TO TRUST ASSETS. Upon Transfer, the Trust Estate and
Trust Receipts shall be vested in the Trust solely for the benefit of the
Beneficiaries, subject to the payment and discharge of the Final Liabilities as
provided herein. Title to the Trust Estate and the Trust Receipts shall be held
either, in the discretion of the Liquidating Trustee, in the name of the Trust
or in the name of the Liquidating Trustee, not in its individual capacity, but
solely as Liquidating Trustee.
3.5 DISSOLUTION BY BENEFICIARIES. The Trust may be dissolved at
any time by the action of Beneficiaries having more than 66.7% of the aggregate
Beneficiary's Percentage Interests; provided, however, that the Trust may not be
dissolved pursuant to such action of Beneficiaries unless prior to any such
dissolution, the Liquidating Trustee has determined, in accordance with Article
Nine that, to the best of its knowledge, there remains no Liabilities for which
the Trust may be responsible.
ARTICLE 4
PURPOSE OF TRUST
4.1 PURPOSE. The purpose of the Trust is to conserve, protect,
liquidate and collect the Trust Estate in a manner calculated to conserve and
protect the Trust Estate (including any Trust Receipts received from sub-lessors
of the real property described by the Lease Agreements) until such time as the
proceeds can be distributed, and to collect and distribute the income and
proceeds therefrom to the Beneficiaries in as prompt and orderly a fashion as
possible after the payment of Final Liabilities and the making of reasonable
provision for claims and contingent liabilities, all in accordance with the
provisions of this Agreement and the Plan. The Trust is, therefore, organized
and shall be administered for the sole purpose of resolving such claims, paying
such liabilities and liquidating and collecting such Assets of the Corporation
as existed immediately prior to the Transfer, and of the Trust as may exist
after the Transfer, and distributing the available Assets to the Beneficiaries.
The activities of the Trust shall be limited to those directly related to that
purpose. The Trust shall not be or have the power to be an organization having
as a purpose the carrying on of any trade or business. This Agreement is not
intended to create and shall not be interpreted as creating an association,
partnership, joint venture or any other entity formed to conduct a trade or
business.
4.2 UNKNOWN ASSETS AND LIABILITIES. The Liquidating Trustee shall
be responsible only for Assets assigned to it hereunder, and shall have no duty
to make, nor incur any liability for failing to make any search for unknown
Assets or Liabilities.
ARTICLE 5
APPOINTMENT OF TRUSTEES
5.1 TRUSTEES. The Trust shall have one, and may have more than
one, trustee; provided, however, that at all times during the life of the Trust,
no less than one trustee shall qualify as a resident in the State of Delaware
pursuant to Section 3807 of the Trust Act, which shall initially be the Delaware
Trustee. If the Delaware Trustee or its successor is the sole trustee of the
Trust, then the Delaware Trustee shall have all of the power and authority of
the Liquidating Trustee hereunder.
5.2 APPOINTMENT OF TRUSTEES. The Corporation hereby appoints the
Delaware Trustee and the Liquidating Trustee as trustees of the Trust effective
as of the date hereof, to have all the rights, powers and duties set forth
herein.
5.3 ACTION BY SOLE TRUSTEE. The Liquidating Trustee shall have the
power, whether general or specific, acting alone, to perform any action
authorized to be performed by the Trustees pursuant to this Agreement or the
Trust Act; provided, however, that as to matters and duties for which action is
required of the Delaware Trustee by the Trust Act, the Delaware Trustee shall
have authority and duty to act on behalf of the Trust, but shall have no
authority or obligation to act in any other matter or duty, except as
specifically provided in the last sentence of Section 5.1.
5.4 NO BOND. The Trustees shall serve without bond.
ARTICLE 6
DUTIES OF DELAWARE TRUSTEE
6.1 APPOINTMENT OF DELAWARE TRUSTEE. The Delaware Trustee hereby
accepts its appointment made in this Agreement subject to the terms hereof, and
the conditions enumerated below and agrees to act as Delaware Trustee pursuant
to the terms hereof.
(a) The Delaware Trustee is appointed to serve as the
trustee of the Trust in the State of Delaware for the sole purpose of satisfying
the requirement of Section 3807(a) of the Trust Act that the Trust have at least
one trustee with a principal place of business in the State of Delaware (the
"DELAWARE LOCATION REQUIREMENT"). It is understood and agreed by the parties
hereto that the Delaware Trustee shall have none of the duties or liabilities of
the Liquidating Trustee.
(b) The duties of the Delaware Trustee shall be limited
to (i) accepting legal process served on the Trust in the State of Delaware and
(ii) the execution of any certificates required to be filed with the Delaware
Secretary of State which the Delaware Trustee is required to execute under
Section 3811 of the Trust Act. To the extent that, at law or in equity, the
Delaware Trustee has duties (including fiduciary duties) and liabilities
relating thereto to the Trust or the Beneficiaries, it is hereby understood and
agreed by the other parties thereto that such duties and liabilities are
replaced by the duties and liabilities of the Delaware Trustee expressly set
forth in this Agreement. The Delaware Trustee shall have no liability for the
acts
or omissions of the Liquidating Trustee.
(c) Any Person into which the Delaware Trustee may be
merged or with which it may be consolidated, or any Person resulting from any
merger or consolidation to which the Delaware Trustee shall be a party, or any
Person which succeeds to all or substantially all of the corporate trust
business of the Delaware Trustee, shall be the successor Delaware Trustee under
this Agreement without the execution, delivery or filing or any paper or
instrument or further act to be done on the part of the party thereto, except as
may be required by applicable law; provided that such successor trustee must
result in the Trust continuing to meet the Delaware Location Requirement.
(d) The Delaware Trustee shall be entitled to all of the
same rights, protections, limitations of duty or liability, indemnities and
immunities under this Agreement and with respect to the Trust as the Liquidating
Trustee, mutates mutandis. No amendment or waiver of any provision of this
Agreement which adversely affects the Delaware Trustee shall be effective
against it without its prior written consent.
ARTICLE 7
ACCEPTANCE BY LIQUIDATING TRUSTEE
7.1 ACCEPTANCE OF APPOINTMENT. The Liquidating Trustee hereby
accepts its appointment made in this Agreement subject to the terms hereof, and
the conditions enumerated below and agrees to act as Liquidating Trustee
pursuant to the terms hereof.
(a) The Liquidating Trustee shall in no case or event be
liable for any damage caused by the exercise of its discretion as authorized in
this Agreement in any particular manner, or for any other reason, except with
respect to any matter as to which the Liquidating Trustee shall have been
adjudicated to have acted in bad faith or with willful misfeasance, reckless
disregard of its duties or gross negligence, nor shall the Liquidating Trustee
be liable or responsible for forgeries or false impersonation. The Liquidating
Trustee shall not be liable for honest mistakes of judgment or for losses or
liabilities due to such honest mistakes of judgment.
(b) If any controversy arises between the parties hereto
or with any third person with respect to the subject matter of this Agreement or
its terms or conditions, the Liquidating Trustee shall not be required to
determine the same or to take any action in the premises but may await the
settlement of any such controversy by final appropriate legal proceedings or
otherwise as the Liquidating Trustee may reasonably require.
(c) The Liquidating Trustee may utilize or be reimbursed
from the Trust Estate with respect to all Liabilities (including amounts paid in
satisfaction of judgments, in compromise, or as attorneys' fees and expenses)
reasonably incurred by the Liquidating Trustee in connection with the defense or
disposition of any Assets, action, suit or other proceeding in which the
Liquidating Trustee may be involved or with which the Liquidating Trustee may be
threatened by reason of its being or having been a trustee pursuant to this
Agreement, except with respect to any matter as to which the Liquidating Trustee
shall have been adjudicated to have acted in bad faith or with willful
misfeasance, reckless disregard of its duties or gross negligence.
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(d) Notwithstanding any other provision of this
Agreement, the Liquidating Trustee's responsibility for payment of, or provision
for, any Liabilities of the Trust or the Liquidating Trustee (other than taxes
and other charges based upon or measured by the Liquidating Trustee's net or
gross income or net or gross receipts relating to the compensation paid to the
Liquidating Trustee hereunder) shall be limited to the property and assets in
the Trust Estate and shall be dischargeable only therefrom.
7.2 LIMITATIONS. The Liquidating Trustee accepts and undertakes to
discharge the Trust created by this Agreement, upon the terms and conditions
thereof. The Liquidating Trustee shall not be subject to any personal liability
whatsoever to any person in connection with the Trust Estate or the affairs of
the Trust, and all persons dealing with the Trustees must look solely to the
Trust Estate for the enforcement of any claims against the Trustees of the Trust
Estate, except with respect to any matter as to which the Liquidating Trustee
shall have been adjudicated to have acted in bad faith or with willful
misfeasance, reckless disregard of its duties or gross negligence. No provision
of this Agreement shall be construed to relieve the Liquidating Trustee from
liability for its own misconduct knowingly and intentionally committed in bad
faith, except that:
(a) The Liquidating Trustee shall not be required to
perform any duties or obligations, except for the performance of such duties and
obligations as are specifically set forth in this Agreement, and no implied
covenants or obligations shall be read into this Agreement against the
Liquidating Trustee;
(b) In the absence of bad faith on the part of the
Liquidating Trustee, the Liquidating Trustee may conclusively rely, as to the
truth, accuracy and completeness thereof, on the statements and certificates or
opinions furnished to the Liquidating Trustee and conforming to the requirements
of this Agreement;
(c) The Liquidating Trustee shall not be liable for any
error of judgment made in good faith; and
(d) In the absence of bad faith by the Liquidating Trust,
the Liquidating Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in accordance with (i) a written opinion of legal
counsel addressed to the Liquidating Trustee or (ii) the direction of the
Beneficiaries holding 66.7% aggregate Beneficiary's Percentage Interests on any
matter relating to the exercise by the Liquidating Trustee with respect to the
Trust of any trust or power conferred upon the Liquidating Trustee under this
Agreement.
7.3 RELIANCE OF LIQUIDATING TRUSTEE. Except as otherwise provided
in Section 7.2:
(a) The Liquidating Trustee may rely upon 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 to be selected by it, and in the absence of bad faith, the Liquidating
Trustee shall not be liable for any action taken or suffered by them in
accordance with the advice of counsel; and
(c) Persons dealing with the Liquidating Trustee in
connection with the Trust
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shall look only to the Trust Estate to satisfy any liability incurred by the
Liquidating Trustee in good faith to any such person in carrying out the terms
of the Trust, and the Liquidating Trustee shall have no personal or individual
obligation to satisfy any such liability.
ARTICLE 8
DUTIES OF LIQUIDATING TRUSTEE
8.1 GENERAL POWERS OF THE LIQUIDATING TRUSTEE. In addition to such
powers as may from time to time be granted to the Liquidating Trustee, the
Liquidating Trustee may take all such action and is hereby granted such powers
as may appear necessary or proper to comply with the laws of the appropriate
jurisdictions and to effect and carry out the terms and purposes of this
Agreement with respect to the Trust Estate. The Trust or the Liquidating Trustee
shall hold legal and equitable title to all Assets at any time constituting a
part of the Trust Estate solely for the benefit of the Beneficiaries and shall
hold such Assets in trust to be administered and disposed of by the Liquidating
Trustee pursuant to the terms of this Agreement.
8.2 LIMITATIONS ON LIQUIDATING TRUSTEE. The Liquidating Trustee
shall not at any time, on behalf of the Trust or the Beneficiaries, enter into
or engage in any activity except to the extent necessary to conserve or maintain
the Trust Estate, to resolve, contest, settle, satisfy or discharge the
Liabilities, and to facilitate expeditious liquidation of the Trust Estate, and
to carry out its duties under this Agreement.
8.3 SPECIFIC POWERS EXERCISABLE BY LIQUIDATING TRUSTEE. The
Liquidating Trustee shall have the following specific powers with respect to the
Trust, and the enumeration of such powers shall not be considered in any way to
limit or control the power of the Liquidating Trustee to act as specifically
authorized in any other section or provision of this Agreement:
(a) To evaluate and determine the terms on which Assets
comprising the Trust Estate should be sold or otherwise disposed of and to sell
or otherwise dispose of any of the Trust Estate in exchange for the fair value
thereof if the Liquidating Trustee finds such sale or disposition necessary or
advisable to render the Trust Estate's assets more suitable for distribution to
the Beneficiaries;
(b) To collect and receive on behalf of the Beneficiaries
and for their benefit any and all monies and other property of whatsoever kind
or nature due to, or owing or belonging to the Trust and to give full discharge
and acquittance therefor;
(c) Pending sale or other disposition or distribution, to
retain all or any Assets constituting part of the Trust Estate;
(d) To do and perform any acts or things necessary or
appropriate to carry out the purpose of the Trust, including acts or things
necessary or appropriate to maintain Assets held by the Liquidating Trustee
pending sale or other disposition thereof or distribution thereof to the
Beneficiaries;
(e) To cause any investments of the Trust Estate to be
registered and held in the name of the Liquidating Trustee or in the names of a
nominee or nominees without increase
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or decrease of liability with respect thereto;
(f) To prosecute, contest, defend, settle and compromise
any and all claims, suits or other actions that are or may be brought by or
against the Trust or the Liquidating Trustee relating to the Assets, the Trust,
the Liquidating Trustee or the Trust Estate, and to pay, discharge or otherwise
satisfy Final Liabilities as provided in Section 9.1 hereof, and to carry any
such insurance, as the Liquidating Trustee shall determine, to protect the Trust
Estate and Liquidating Trustee from liability;
(g) To cancel, terminate, or amend any instruments,
contracts, or agreements relating to or forming a part of the Trust Estate or
negotiate a compromise or settlement with respect thereto, and to execute new
instruments, contracts or agreements, notwithstanding that the terms of any such
instruments, contracts, or agreements may extend beyond the terms of the Trust,
provided that no such new instrument, contract or agreement shall permit the
Liquidating Trustee to engage in any activity prohibited hereunder;
(h) Upon a determination of insolvency pursuant to
Section 9.1(d) hereof, the Liquidating Trustee may on behalf of the Trust: (i)
commence a voluntary case under the federal bankruptcy laws (as now or hereafter
in effect); (ii) file a petition seeking to take advantage of any other laws,
domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding
up or composition for adjustment of debts, to consent to or fail to contest in a
timely and appropriate manner any petition filed against the Trust in an
involuntary case under such bankruptcy laws or other laws, (iv) apply for or
consent to, or fail to contest in a timely and appropriate manner, the
appointment of, or the taking of possession by, a receiver, custodian, trustee,
or liquidator of itself or of a substantial part of the Trust Assets, (v) admit
in writing the Trust's inability to pay its debts as they become due, (vi) make
a general assignment for the benefit of creditors, or (vii) take any action for
the purpose of authorizing any of the foregoing.
(i) In the event any of the property which is or may
become a part of the Trust Estate is situated in any state or other jurisdiction
in which the Liquidating Trustee is not qualified to act as Liquidating Trustee,
to nominate and appoint an individual or corporate trustee qualified to act in
such state or other jurisdiction in connection with the property situated in
that state or other jurisdiction as a trustee of such property and require from
such trustee such security as may be designated by the Liquidating Trustee. The
trustee so appointed shall have all the rights, powers, privileges and duties
and shall be subject to the conditions and limitations of this Trust, except as
limited by the Liquidating Trustee and except where the same may be modified by
the laws of such state or other jurisdiction (in which case, the laws of the
state or other jurisdiction in which such trustee is acting shall prevail to the
extent necessary). Such trustee shall be answerable to the Liquidating Trustee
herein appointed for all monies, assets and other property which may be received
by it in connection with the administration of such property. The Liquidating
Trustee hereunder may remove such trustee, with or without cause, and appoint a
successor trustee at any time by the execution by the Liquidating Trustee of a
written instrument declaring such trustee removed from office, and specifying
the effective date of removal;
(j) To perform any act authorized, permitted, or required
under any instrument, contract, agreement, or cause of action relating to or
forming a part of the Trust
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Estate, 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;
(k) To institute or defend actions or declaratory
judgments or other actions and to take such other action, in the name of the
Trust or of the Corporation if otherwise required, as the Liquidating Trustee
may deem necessary or desirable to enforce any instruments, contracts,
agreements, or causes of action relating to or forming a part of the Trust
Estate;
(l) To prepare and issue to the Beneficiaries reports and
accountings of the Trust's Assets, income and expenses in connection with (i)
distributions of Trust income and Assets to Beneficiaries, (ii) Trust and
Beneficiary tax filings, (iii) a final accounting of Trust income and Assets
upon termination of the Trust, or (iv) as may be required by law, it being
understood and agreed that it is a purpose of the Trust that its reporting
obligations to Beneficiaries be simplified in order to reduce costs and to
preserve the Assets of the Trust, provided that the Liquidating Trustee may rely
upon the advice of the Trust's legal counsel in determining its obligations
under this Section 8.3(l);
(m) To pay from the Trust Estate all Trust Expenses,
including, without limitation, the following: (i) Trustees' Expenses, (ii) Trust
Advisor Expenses and any other Liabilities, owed or to be reimbursed by the
Trust to any provider of services to the Trust, including without limitation
legal, accounting, audit, brokerage, banking and similar services, (iii) all
mailing, distribution and other expenses incurred in connection with reporting
to and communicating with the Beneficiaries pursuant to Section 8.3(l) above,
(iv) all claims against the Trust Estate, including claims against the Trust for
indemnification by the Trust and all Liabilities pursuant to Section 9.1 hereof,
(v) premiums for insurance coverage to protect the Trust's income and assets
pursuant to Section 8.3(f) above, which the Liquidating Trustee, in its sole
discretion, deems to be in the best interest of the Beneficiaries, and (vi) such
other Final Liabilities as the Liquidating Trustee believes, in its good faith
judgment, to be proper charges against the Trust's income and assets, including,
without limitation, the following expenses accrued with respect to the
Corporation prior to its transfer to the Trust: (A) costs and expenses incurred
in connection with the operations of the Corporation, (B) audit and tax
preparation services, (C) claims and liabilities of the Corporation, including,
without limitation, legal costs and other costs of investigation and defense,
and (D) such other costs and expenses as the Liquidating Trustee believes, in
its good faith judgment, to be proper charges against the Trust with respect to
the Corporation's existence and operations and the Transfer. Payment of such
expenses by the Trust shall be subject to the Liquidating Trustee's receipt of
satisfactory documentation for such expenses;
(n) To establish and maintain from cash Assets
transferred by the Corporation and Trust Receipts, such amounts as the
Liquidating Trustee, in its good faith judgment, determines from time to time
are sufficient to pay estimated Trust Expenses, such amounts to be held in the
name of the Trust in cash or cash equivalents, or in Permitted Investments, as a
reserve (the "RESERVE");
(o) The Liquidating Trustee, or its affiliated investment
advisor, may, on a temporary basis, for purposes of retaining sufficient cash to
meet future Liabilities or prior to any distributions to Beneficiaries, invest
any portion of the Trust Estate in Permitted Investments.
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The Liquidating Trustee shall be restricted to the holding and collection of the
Trust Estate, to the payment and distribution thereof for the purposes set forth
in this Agreement and to the conservation and protection of the Trust Estate and
the administration thereof in accordance with the provisions of this Agreement.
The Liquidating Trustee shall reinvest such part of the Trust Estate as may be
in cash, or as may be converted into cash, in Permitted Investments. In no event
shall the Liquidating Trustee receive any property, make any distribution,
satisfy or discharge any obligation, claim, liability or expense or otherwise
take any action which is inconsistent with a complete liquidation of the Trust.
(p) To select one or more additional trustees to assist
in the management and administration of the Trust, provided, however, that the
Trust incurs no additional cost or expense thereby;
(q) To employ such agents and advisors (which may include
the Liquidating Trustee, one or more of the Beneficiaries, or corporations or
partnerships owned or controlled by the Liquidating Trustee or one or more
Beneficiaries or former officers, employees and agents of the Corporation
(including, without limitation, the engagement of Messrs. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or
▇▇▇▇▇▇ ▇▇▇▇▇▇ as Trust Advisors, as described in Article 13 hereof), and to
confer upon them such authority as the Liquidating Trustee may deem necessary,
appropriate or expedient (including the right to hire sub-agents or sub-advisors
to assist them), and to pay reasonable compensation therefor from the Trust
Estate; provided that any such agreements or arrangements with a person or
entity affiliated with the Liquidating Trustee shall be on terms no less
favorable to the Trust than those available to the Trust in similar agreements
or arrangements with unaffiliated third parties, and such agreements or
arrangements shall be terminable, without penalty, on not more than 60 days'
prior written notice by the Trust;
(r) While serving as Liquidating Trustee, to engage
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (or such other counsel as the Liquidating Trustee may
designate) as legal counsel for the benefit of the Liquidating Trustee and the
Delaware Trustee, and to pay the fees and expenses of such counsel from the
Trust Estate, and to engage such other consultants or legal counsel as the
Liquidating Trustee shall see fit to assist in the administration of the Trust;
and
(s) While serving as Liquidating Trustee, to engage Ernst
& Young LLP (or such other independent auditor as the Liquidating Trustee may
designate) as independent auditor for the benefit of the Liquidating Trustee,
and to pay the fees and expenses of such independent auditor from the Trust
Estate, and to engage such other consultants as the Liquidating Trustee shall
see fit to assist in the administration of the Trust.
8.4 SAFEKEEPING OF TRUST ASSETS. All Corporation Assets received
hereunder by the Liquidating Trustee shall, until distributed or paid over as
herein provided, be held in trust for the benefit of the Beneficiaries. The
Liquidating Trustee shall be under no liability for interest or for producing
income on any moneys held or received by the Liquidating Trustee hereunder and
held for distribution or payments to the Beneficiaries, except as such interest
shall actually be received by the Liquidating Trustee.
8.5 DETERMINATION OF OWNERSHIP. In the event of any disagreement
between persons claiming to be transferees of any Beneficiary, the Liquidating
Trustee shall be entitled at its option to refuse to recognize any such claims
so long as such disagreement shall continue. In so
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refusing, the Liquidating Trustee may elect to make no payment or distribution
in respect of such Beneficiary, and in so doing, the Liquidating Trustee shall
be entitled to continue so to refrain and refuse so to act, until:
(a) the rights of the adverse claimants have been
adjudicated by a final judgment of a court assuming and having jurisdiction of
the parties and the interest and money involved; or
(b) all differences have been adjusted by valid agreement
between such parties and the Liquidating Trustee shall have been notified
thereof in a writing signed by all of the interested parties.
8.6 CONTINUANCE OF LIQUIDATING TRUSTEE'S AUTHORITY AFTER
TERMINATION. After the dissolution of the Trust and for the purpose of winding
up the affairs of the Trust, the Liquidating Trustee shall continue to have the
authority to act as such in accordance with the provisions of the Plan and this
Agreement until its duties have been fully performed. Upon distribution of the
entire Trust Estate, the Liquidating Trustee shall retain for a period of two
years the books, records, Beneficiary lists and any other documents and files
created by the Corporation or Trust and which shall have been delivered to the
Liquidating Trustee. At the Liquidating Trustee's discretion, all of such
records and documents may, but need not, be destroyed an any time after three
years from the completion and winding up of the affairs of the Trust. Except as
otherwise specifically provided herein, upon the discharge of all Liabilities of
the Trust and final distribution of the entire Trust Estate, the Liquidating
Trustee shall have no further duties or obligations hereunder.
8.7 EXECUTION OF ESCROW AGREEMENT. On a date hereafter, the Trust
shall enter into an escrow agreement in connection with the reimbursement of
certain lease payments to be made with respect to the demised first and second
floor premises located at ▇▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇. The form of such
escrow agreement shall be substantially in the form attached hereto as Exhibit
C.
ARTICLE 9
COLLECTION AND APPLICATION OF TRUST ASSETS
9.1 ADMINISTRATION OF LIABILITIES.
(a) The Liquidating Trustee shall determine claims
against the Trust and administer the Liabilities as provided in this paragraph
9.1.
(i) To facilitate the administration and
disposition of Liabilities pursuant to this Agreement the Corporation shall,
upon request, deliver, or shall cause the Trust Advisors, as such term is
defined in Article 13 hereof, to deliver to the Trust such records, files and
documents in the possession of the Corporation or the Trust Advisors as the
Liquidating Trustee may request in order to perform its obligations under this
Section 9.1.
(ii) When administering Liabilities involving
claims or legal actions against the Trust Estate, the Liquidating Trustee shall
observe, subject to the other applicable provisions of this Agreement, the
following procedures:
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(1) ASCERTAINABLE LIABILITIES: The
Liquidating Trustee will review and analyze each of the Ascertainable
Liabilities and determine whether to accept and pay or to dispute and contest
such Ascertainable Liabilities based upon the Liquidating Trustee's
determination of such Ascertainable Liabilities' legal validity (whether the
claim asserted is legally enforceable) and amount (whether correct and due).
(2) LITIGATION LIABILITIES: The
Liquidating Trustee will contest and defend Litigation Liabilities to final
judgment, including appropriate appeals, or settle as an appropriate resolution
of Litigation Liabilities, as it may determine in its discretion to be in the
best interest of the Beneficiaries, but subject to the requirements of this
Agreement.
(b) In determining whether to contest or settle each of
the Ascertainable Liabilities or Litigation Liabilities, the Liquidating Trustee
shall consider, among other things, the following criteria:
(i) Cost of defense (including, without
limitation, all legal fees and expenses attributable to such Liabilities and
defense of a legal action seeking to enforce such Liabilities) compared to the
amount of such Liabilities.
(ii) Likelihood of the claimants of such
Liabilities prevailing under the asserted legal theory or cause of action and
then known facts (including proof considerations).
(iii) Precedential effect on administration of
other Liabilities or potential Liabilities against the Trust Estate and whether
the amount of such Liabilities is or is not supported by known facts regarding
actual damages.
(c) In evaluating whether to contest or settle, the
Liquidating Trustee shall apply the reasonable business judgment (i.e., the
Liquidating Trustee would be responsible for diligent identification of the
legal issues, factual considerations and related risks and uncertainties
presented by each of the Ascertainable Liabilities or Litigation Liabilities,
relying on advice and evaluations of legal counsel and other professional
advisors or consultants) which may include counsel retained by the Corporation
prior to the creation of the Trust to defend such Liabilities, and other
professional advisors or consultants), and then exercising reasonable judgment
after consideration of all relevant factors and information. In the selection of
legal counsel for any matter, the Liquidating Trustee shall consider the amount
and complexity of the matter in relation to the appropriate experience,
resources, reputation and fees and costs of selected counsel and shall consult
in good faith with the Trust Advisors; provided, however, that if insurance
coverage is available to the Trust on account of such Liabilities, the
Liquidating Trustee shall have the right to accept counsel selected by any
insurer which undertakes the defense of such Liabilities.
(d) The Liquidating Trustee shall have the right to
defend any Liabilities, claims or legal actions on behalf of the Trust and may
assert counterclaims in such actions. Upon advice of counsel, the Liquidating
Trustee may initiate any legal proceeding against a third party regarding any
Liabilities. In any action taken by the Liquidating Trustee, the Liquidating
Trustee shall be deemed to represent the interests of all of the Beneficiaries,
and it shall not be necessary to make any Beneficiary a party to such action.
The Liquidating Trustee may file such proofs of claim and other papers as may be
necessary or appropriate in order to have the claims of the
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Trust or the Beneficiaries allowed in any judicial proceeding.
(e) Whenever the Liquidating Trustee, after consultation
with counsel, consultants or other professional advisors, determines that there
is a reasonable prospect that the Trust Estate will not be sufficient to satisfy
all outstanding Liabilities and reasonably anticipated Liabilities, including
Trustees' Expenses, or that the Trust is insolvent as such term is defined in
Section 101(32) of the Bankruptcy Code (11 U.S.C. Section 101(32)), the
Liquidating Trustee may issue a notice of determination of anticipated
insolvency pursuant hereof, based upon the Liquidating Trustee's assessment of
available information. The Liquidating Trustee may also revoke any such
determination at any time if it determines that certain facts or circumstances,
material to its previous determination, have changed. Notwithstanding anything
to the contrary in this Agreement, upon notice of a determination of
anticipated insolvency, and so long as such determination has not been revoked
by the Liquidating Trustee, no payments shall be made by the Liquidating
Trustee in respect of Liabilities. In the event of a determination of
insolvency, the Liquidating Trustee on behalf of the Trust may take any of the
actions described in Section 8.3(h) hereof.
9.2 PAYMENT OF EXPENSES AND LIABILITIES. The Liquidating Trustee
shall pay from the Trust Estate or otherwise discharge or provide defense or
other resolution of all Liabilities of the Trust Estate in accordance with
Section 9.1, including without limitation, interest, taxes, assessments, public
charges of every kind and nature, and costs, charges and expenses in connection
with or growing out of the execution or administration of the Trust and such
other payments and disbursements as are provided for in this Agreement or which
may be determined by the Liquidating Trustee to be a proper charge against the
Trust Estate, including any and all liabilities of the Corporation as of the
date hereof or which arise hereafter. The Liquidating Trustee, in its sole
discretion, may make provision by reserve or otherwise out of the Trust Estate
for such amounts as may be determined by the Liquidating Trustee to be necessary
or advisable to meet present or future Liabilities of the Trust, whether fixed
or contingent, previously known or unknown.
(a) In accordance with Section 9.1, the following
Liabilities shall be allocated and charged against the respective Trust Estate:
(i) All Trustees' Expenses shall have priority
over any other Final Liabilities arising contemporaneously with or subsequent to
such Trustees' Expenses. All Trustees' Expenses shall be paid to the Trustees in
cash equal to the amount of such obligation as such obligation becomes due. The
Trust hereby grants to the Trustees a security interest in, and a lien on the
Trust Estate to the extent that any Trustees' Expenses shall remain unpaid.
(ii) A Person holding the rights to payment of
Final Liabilities shall be paid cash equal to the amount of such obligations as
such obligations become due, or shall be paid in such other form and manner as
specified in the final judgment, if any, or settlement agreement, if any, with
respect to such Final Liabilities.
(b) After the Effective Date, all payments with respect
to Liabilities of the Corporation shall be made out of the Assets of the Trust
Estate and nothing herein shall be deemed to establish an exclusive fund out of
which any particular type of obligation is required to be paid. All payments by
the Trust shall be made from principal or income or both as
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determined by the Liquidating Trustee in its absolute discretion.
9.3 SALE OF TRUST ESTATE. The Liquidating Trustee may, at such
times and for such amounts as it may deem appropriate, collect, liquidate,
reduce to cash, sell, transfer, assign, exchange, convey or otherwise dispose of
all or any part of the Trust Estate that it deems appropriate at public auction
or at private sale for cash, securities or other property upon credit (either
secure or unsecured) and upon such other terms and conditions as the Liquidating
Trustee shall determine in its sole discretion; provided, however, that all such
public auctions and/or private sales shall be conducted in such manned as to be
deemed commercially reasonable. In addition, the Liquidating Trustee may
evaluate and determine the disposition of Assets using the same criteria
described in 9.1(b) hereof.
9.4 SUB-LEASING OF PROPERTY DESCRIBED IN LEASE AGREEMENTS. The
Liquidating Trustee shall use its commercially reasonable efforts, in its sole
discretion, to minimize any Liabilities of the Trust or Corporation and conserve
the Trust Estate by either (i) terminating the Lease Agreements, as promptly as
possible consistent with payment to the lessor of fair value as described under
the Lease Agreement or by law or (ii) hiring leasing brokers or agents to assist
it in locating sub-lessees for any real property described in the Lease
Agreements (the "Properties"), entering into leases with sub-lessees for any of
the Properties upon such terms as the Liquidating Trustee may deem appropriate
given current market conditions, it being understood that the Trustee shall use
its reasonable judgment to determine the best course of action to follow in
connection with the Properties to minimize such Liabilities.
9.5 COLLECTION OF TRUST ASSETS. All Assets constituting the Trust
Estate shall be received, accepted and safekept by the Liquidating Trustee as
provided in Section 2.2 hereof, and all Trust Receipts shall be collected by the
Liquidating Trustee and held as part of the Trust established herein. The Trust
Estate shall be held and administered for the payment and discharge of
Liabilities as provided in Section 9.1, and for the distribution to the
Beneficiaries as provided in Section 9.8.
9.6 CONTINUING EFFORTS TO RESOLVE CLAIMS AND LIABILITIES. In
accordance with this article, the Liquidating Trustee will make continuing
efforts to resolve any Liabilities for which the Trust may be responsible,
dispose of the Trust Estate, make timely distributions, and not unduly prolong
the duration of the Trust.
9.7 LIQUIDATION OF ASSETS. The Liquidating Trustee shall use
reasonable best efforts, in its sole discretion, (i) to liquidate, as promptly
as possible consistent with obtaining fair value for such Assets, all Assets not
divisible into separate legal interests or otherwise not suited for in kind
distribution in the form in which such Assets are received by the Trust, and
(ii) to distribute all Assets suitable for in kind distribution unless such
distribution will result in loss of value. All monies received on such
liquidation shall be paid or distributed as provided herein and be subject to
all provisions hereof.
9.8 INTERIM LIQUIDATING DISTRIBUTIONS; FINAL LIQUIDATING
DISTRIBUTIONS.
(a) From time to time, the Liquidating Trustee may (i)
conduct a review of all payments made from the Trust after the Effective Date
and of all anticipated and pending
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Liabilities against the Trust, (ii) consider the extent to which the value of
the Assets held by the Trust exceeds the amount of anticipated Final Liabilities
to be made out of the Assets of the Trust prior to the Final Distribution Date;
(iii) consider the expense likely to be associated with any Interim Liquidating
Distribution to Beneficiaries; and (iv) consider any other information the
Liquidating Trustee deems relevant. Based on such considerations, the
Liquidating Trustee may, in its sole discretion, distribute, on one or more
occasions subsequent to the Effective Date and prior to the Final Distribution
Date, such amount from the Assets of the Trust as the Liquidating Trustee, in
its sole discretion, deems reasonable and appropriate, ratably to Beneficiaries
in accordance with their Beneficiary's Percentage Interests (an "INTERIM
LIQUIDATING DISTRIBUTION"); provided that the Liquidating Trustee must be
reasonably satisfied that the value of the Assets remaining in the Trust
following each such distribution will be reasonably likely to be sufficient to
satisfy all remaining Liabilities of the Trust that are pending or likely to
arise prior to the Final Distribution Date. Subject to the foregoing proviso,
the Liquidating Trustee shall make an Interim Liquidating Distribution no later
than December 31st each year of any proceeds from Trust Receipts or income from
Permitted Investments. Each Interim Liquidating Distribution, if any, shall be
made by the Liquidating Trustee (with or without the assistance of a transfer
agent) in the same manner provided in paragraph (c) of this Section 9.8 with
respect to the Final Liquidating Distribution, if any.
(b) As soon as practicable after (i) all Final
Liabilities have been paid (including the payment of all Trustees' Expenses);
and (ii) the Liquidating Trustee has (y) determined to the best of its knowledge
that there are no claims with respect to future Liabilities that are likely to
arise, or (z) made such provision or arrangement with respect to such future
Liabilities, the Liquidating Trustee shall distribute all Assets remaining in
the Trust (to the extent any Assets remain), ratably (except as set forth in
Section 16.4 hereof) to the Beneficiaries in accordance with their Beneficiary's
Percentage Interests (the "FINAL LIQUIDATING DISTRIBUTION"). Remaining amounts,
if any, reserved pursuant to clause (z) above but ultimately not used to satisfy
future Liabilities, shall be distributed to the Beneficiaries ratably in
accordance with their Beneficiary's Percentage Interests.
(c) The Final Liquidating Distribution, if any, shall be
made by the Liquidating Trustee (with or without the assistance of a transfer
agent) by first class mail, postage prepaid, or by such other means as the
Liquidating Trustee deems appropriate. The Final Liquidating Distribution shall
be sent to the last known address of each Beneficiary as shown in the records of
the Liquidating Trustee.
9.9 DISTRIBUTIONS BY LIQUIDATING TRUSTEE ON DISSOLUTION. Upon
termination of the Trust, the Liquidating Trustee shall distribute or apply the
remaining Trust Estate to or for the benefit of the Beneficiaries as set forth
in Sections 9.7 and 9.8. The Corporation and Liquidating Trustee acknowledge and
agree that, upon dissolution of the Trust, certain Assets of the Trust Estate
may not be divisible for purposes of in kind distribution to the Beneficiaries,
or may not be marketable or otherwise transferable. The Liquidating Trustee may,
on the advice of counsel, retain a reasonable sum for payment of or to provide
for all known Liabilities of the Trust and the Liquidating Trustee.
ARTICLE 10
REPORTING REQUIREMENTS
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10.1 ANNUAL REPORTS. The fiscal year of the 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 fiscal year of the Trust
shall end. Unless relief from such requirements is granted by the SEC, as soon
as practicable after the close of each fiscal year (including the year in which
the Trust dissolves as provided in Article Three or Article Nine), and in any
event within 90 days after the close of each fiscal year (including the year in
which the Trust dissolves as provided in Article Three or Article Nine), the
Liquidating Trustee shall prepare, file with the SEC an Annual Report on Form
10-K using the file number of the Corporation. Such report shall also describe
the changes in the Trust's assets during the period and the actions taken by the
Liquidating Trustee during the period. The financial statements contained in
such reports shall not need to be audited by an independent public accountant.
10.2 FEDERAL INCOME TAX REPORTING. The Liquidating Trustee will
file annually on a timely basis the appropriate tax returns for the Trust and
which treat the Trust as a grantor trust pursuant to U.S Treasury Regulation
Section 301.7701-4(d), and will provide each Beneficiary with the information
needed to file his or her federal income tax return. The Liquidating Trustee
will file any other tax forms or reports that are required with respect to the
Trust or its Beneficiaries.
10.3 SEC FILINGS. During the course of a fiscal year, whenever a
material event relating to the Trust's assets occurs, the Liquidating Trustee
shall, within a reasonable period of time after such occurrence, prepare and
file with the SEC a Current Report on Form 8-K or an interim report describing
such event. The occurrence of a material event need not be reported on an
interim report if an annual report pursuant to Section 10.1 will be issued at
approximately the same time that such interim report would be issued and such
annual report describes the material event as it would be discussed in an
interim report. The occurrence of a material event will be determined solely by
the Liquidating Trustee.
10.4 FINAL REPORT. Before making its Final Liquidating
Distribution, the Liquidating Trustee shall submit a written report to the
Beneficiaries (which report shall constitute the final accounting of the
Liquidating Trustee) showing the assets administered, the distributions made by
the Liquidation Trustee and the final distributions to be made by the
Liquidation Trustee. Any Beneficiary who fails to file and serve on the
Liquidation Trustee a written objection to the final report and accounting
within twenty (20) days after such report or account is first mailed to the
Beneficiaries (with no additional days to be added for service by mail) shall be
deemed to have assented thereto and approved the contents thereof. If no
objection is filed to the final report and accounting within the time frame set
forth above, then upon making the Final Liquidating Distribution in the manner
set forth in the final report, the Trustees shall be: (i) fully discharged of
their duties hereunder and under the Plan; and, (ii) fully discharged and
released from all duties, liabilities and obligations of every kind and nature
to the Beneficiaries, except as expressly set forth herein to the contrary.
ARTICLE 11
BENEFICIARIES
11.1 BENEFICIAL INTERESTS.
(a) After the Effective Date, the Beneficiary's
Percentage Interest of each
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Beneficiary shall be determined by the Liquidation Trustee in accordance with
Section 1.1(f) above. Such determination shall be based upon a certified copy of
the list of Corporation Stockholders and their addresses as of the Effective
Date as shown on SCHEDULE B attached hereto (the "CORPORATION STOCKHOLDER
LIST"). To be able to determine the appropriate Beneficiary's Percentage
Interest of each Beneficiary, on (or promptly after) the Effective Date, the
Corporation will cause the transfer agent of the Corporation to deliver a
certified copy of the Corporation Stockholder List to the Liquidating Trustee.
The Beneficiary's Percentage Interest of each Beneficiary shall be set forth
next to the name of each Beneficiary as shown on SCHEDULE B attached hereto.
(b) After the Effective Date, Beneficiary's Percentage
Interests in the Trust shall not be represented by certificates, and no
Beneficiary shall be entitled to such a certificate.
(c) If the Beneficiary's address shall change from that
set forth in the Corporation Stockholder List, such Beneficiary must promptly
notify the Liquidating Trustee in writing with respect to the change in address.
11.2 RIGHTS OF BENEFICIARIES. Each Beneficiary shall be entitled to
participation in the rights and benefits due to a Beneficiary hereunder
according to his Beneficiary's Percentage Interest. Each Beneficiary shall take
and hold the same subject to all the terms and provisions of this Agreement. The
Beneficiary's Percentage Interest of each Beneficiary is hereby declared and
shall be in all respects personal property and upon the death of an individual
Beneficiary, such Beneficiary's Percentage Interest shall pass to such
Beneficiary's legal representative and heirs, as applicable, and such death
shall not terminate or affect the validity of this Agreement. A Beneficiary
shall have no title to, possession of, management of, or control of, the Trust
Estate except as herein expressly provided. No widower, widow, heir, or devisee
or 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 whatever forming a part of the Trust Estate, but the whole title
to all the Trust Estate shall be vested in the Liquidating Trustee and the sole
interest of the Beneficiaries shall be the rights and benefits given to such
persons under this Agreement. The Beneficiaries will be treated as the grantors
and deemed owners of the Trust for federal income tax purposes, and they will be
treated for federal income tax purposes as owning undivided interests in its
Assets.
11.3 NO TRANSFER OF INTERESTS OF BENEFICIARIES. After the Effective
Date, the Beneficiary's Percentage Interest of a Beneficiary may not be
transferred either by the 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 anticipate or dispose of such Beneficiary's
Percentage Interest in the Trust; provided, however, that the Beneficiary's
Percentage Interest of a Beneficiary shall be assignable or transferable by
will, intestate succession, or operation of law and, in any event, in accordance
with applicable federal and state securities laws.
11.4 UNCLAIMED INTERESTS. In the event that the Liquidating Trustee
receives notice by a Beneficiary of its intent to abandon, renounce or otherwise
not claim its beneficiary interests (the "RENOUNCED INTEREST") in the Trust, the
Liquidating Trustee shall allocate and distribute the Renounced Interest to the
Beneficiaries participating in the distributions with respect to the
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Trust. In the event that the Liquidating Trustee is unable to locate a
Beneficiary for purposes of making a distribution, no further distributions to
such Beneficiary shall be made unless and until the Liquidating Trustee is
informed in writing by such Beneficiary of the Beneficiary's current address, at
which time missed distributions shall be made to such Beneficiary without
interest. The Liquidating Trustee has no duty to attempt to locate any
Beneficiary. If any Beneficiary cannot be located, such distributions shall be
set aside and maintained by the Liquidating Trustee. If any Beneficiary cannot
be located prior to the Final Liquidating Distribution, any unclaimed and
undeliverable distributions shall become the property of the Trust Estate and
shall escheat to the state of such Beneficiary's last known state of residence
pursuant to the manner prescribed by law for the handling and disposition of
unclaimed property.
11.5 NO PARTICIPATION IN TRUST MANAGEMENT AND ADMINISTRATION. No
Beneficiary, as such, shall take part in the management or administration of the
Trust, or transact any business for the Trust, or have power to sign for or bind
the Trust to any agreement, oral or written, or any instrument or other
document. Notwithstanding anything herein to the contrary, unless approved by
the consent more than 66.7% of the aggregate Beneficiary's Percentage Interests
(subject to the penultimate sentence of this Section 11.5), the Liquidating
Trustee shall not:
(a) Dissolve the Trust, except as provided in Section 3.5
above;
(b) Merge or consolidate with any other partnership,
corporation, limited liability company or other entity or convert this statutory
trust to any other form of business entity; or
(c) Amend this Agreement with respect to any provision
which will by its terms materially adversely affect the rights of any
Beneficiary with respect to its Beneficiary Interest, except to the extent such
amendment is required by applicable law.
The Beneficiaries shall not have any voting rights other than as expressly
provided in this Agreement.
11.6 WRITTEN CONSENT. No meetings of the Beneficiaries shall be
held and all votes or consents required or permitted to be taken by the
Beneficiaries shall be taken by a consent in writing, setting forth the action
so taken, signed by Beneficiaries having not less than the minimum number of
votes necessary to authorize or take that action.
11.7 EVIDENCE OF ACTION BY BENEFICIARIES. Whenever in this
Agreement it is provided that the Beneficiaries may take any action (including
any vote, the making of any demand or request, the giving of any notice,
consent, or waiver, the removal of one of the Trustees, the appointment of a
successor trustee, or the taking of any other action), the fact that at the time
of taking any such action, such holders have joined therein may be evidenced by
any instrument or any number of instruments of similar tenor executed by the
Beneficiaries in person or by agent or attorney appointed in writing.
11.8 LIMITATIONS ON SUITS BY BENEFICIARIES. No Beneficiary shall
have any right by virtue of any provision in this Agreement to institute any
action or proceeding at law or in equity against any party other than the Trust,
upon or under or with respect to the Trust Estate or any
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agreements relating to or forming parts of the Trust Estate, and the
Beneficiaries do hereby waive any such right.
11.9 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, that the provisions of
this Section shall not apply to any suit by the Liquidating Trustee, and such
undertaking shall not be required from the Liquidating Trustee or otherwise
required in any suit by any Beneficiary or group of Beneficiaries having
aggregate Beneficiary's Percentage Interests of more than 66.7% of all
Beneficiary's Percentage Interests.
11.10 DISCLOSURE OF BENEFICIARIES. If requested in writing by a
Beneficiary, the Liquidating Trustee shall deliver a list of the Beneficiaries
(reflecting names and addresses as shown on the records of the Liquidating
Trustee) including the Beneficiary's Percentage Interests held by each such
Beneficiary in the Trust.
ARTICLE 12
TRUSTEES' EXPENSES; INDEMNIFICATION
12.1 COMPENSATION AND REIMBURSEMENT OF EXPENSES. All Trustees'
Expenses shall be paid in accordance with Section 9.2(a) hereof. To the extent
that any Trustees' Expenses remain unpaid, the Trustees shall have a lien on the
Trust Estate until the Trust has paid to the Trustees any outstanding amounts.
12.2 MULTIPLE TRUSTEES. In the event there is more than one
trustee, the Liquidating Trustee may allocate the Trustees' Expenses among
Trustees as they may, in their discretion, mutually agree; provided, however,
that in no event shall the Trust incur aggregate costs or expenses in connection
with the Trustees' Expenses greater in amount than would have been incurred were
there a single trustee performing such services as required by this Agreement.
12.3 INDEMNIFICATION OF TRUSTEES. Each of the Trustees shall be
indemnified by and receive reimbursement from the Trust Estate from any and all
claims, losses, liabilities or damages which such Trustee may incur or sustain,
in the good faith exercise and performance of any of the powers and duties of
such Trustee with respect to the Trust under this Agreement; provided, however,
no party other than the Liquidating Trustee shall have the right to cause the
Trust to indemnify the Trustees. The Beneficiaries shall indemnify the Trustees
and Trust to the extent of any claims made by third parties against the Trustees
or Trust for making distributions to Beneficiaries under this Agreement ("THIRD
PARTY CLAIMS"); provided, however, that the liability of any Beneficiary for
such indemnification shall be the lesser of (i) its Beneficiary's Percentage
Interest times the amount of such Third Party Claims or (ii) the aggregate
amount of distributions which such Beneficiary has received hereunder. The
Liquidating Trustee shall purchase with Assets of the Trust Estate such
insurance as it feels, in the exercise of its discretion, adequately insures
that it shall be indemnified against any such loss, liability or
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damage pursuant to Article 7 hereof and this Article 12.
12.4 NO DUTY NOT TO COMPETE. The Trustees, in their individual
capacity or through corporations, partnerships or other entities which they
control or in which they have an interest, may engage in or possess any interest
in any business venture, including, but not limited to, the ownership,
financing, management of real property, or the investment of securities, or the
provision of any services in connection with such activities, whether or not in
competition with any part of the Trust Estate. The Trustees have no duties to
present any business opportunity to the Trust before taking advantage of such
opportunity either in their individual capacities or through participation in
any entity.
ARTICLE 13
ADVISORY SERVICES
13.1 ADVISORY SERVICES AGREEMENT. The Liquidating Trustee shall
cause the Trust to enter into an agreement with each of Messrs. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇ to serve as advisors to the Trust (the "TRUST
ADVISORS"), in the forms attached hereto as EXHIBITS B-1 AND B-2. With respect
to the Liquidating Trustee's performance of its duties hereunder, the
Liquidating Trustee may, but is not obligated to, rely on the advice and counsel
of the Trust Advisors with respect to certain matters, including, without
limitation, matters relating to the Corporation's continuing lease obligations,
state sales tax obligations, interests in ongoing litigation matters and other
Liabilities. Each Trust Advisor will receive a fee or other compensation in
connection with his services to the Trust ("ADVISORY SERVICES") in accordance
with EXHIBITS B-1 AND B-2, and the Trust will reimburse the Trust Advisors for
out-of-pocket expenses and related expenses directly incurred in connection with
the provision of Advisory Services ("TRUST ADVISOR EXPENSES").
13.2 OTHER ACTIVITIES. Each of the Trust Advisors may engage in any
activities, whether or not related to the assets or affairs of the Trust. Each
of the Beneficiaries of the Trust agrees that each of the Trust Advisors (A) may
engage in or possess an interest, direct or indirect, in any business venture of
any nature or description for such person's own account, independently or with
others, including, without limitation, any business, industry or activity in
which the Trust may have investments and (B) may do so without any obligation to
report the same to the Trust or any of the Beneficiaries or to afford the Trust
any opportunity to participate therein. Neither the Trust nor any Beneficiary
shall have any right in or to any such independent venture or investment or the
revenues or profits derived therefrom.
13.3 WAIVER OF CONFLICTS. The fact that either of the Trust
Advisors is employed by, or is directly or indirectly interested in or connected
with, any person or entity employed or engaged by the Trust to render or perform
a service, or from whom the Trust may make any purchase, or to whom the Trust
may make any sale, shall not prohibit the Trust from engaging in any transaction
with such person or entity, or create any additional duty of legal justification
by such person or entity beyond that of an unrelated party, and neither the
Trust nor any Beneficiary shall have any right in or to any revenues or profits
derived from such transaction by either of the Trust Advisors.
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ARTICLE 14
INDEMNIFICATION OF BOARD AND OFFICERS
The Trust shall from and to the extent of the Trust Estate, indemnify, save,
defend and hold harmless the officers and directors of the Corporation with
respect to all matters in connection with the Corporation to the same extent
that the Corporation and not the Trust were the indemnifying party under the
Corporation's certificate of incorporation, the Corporation's bylaws, any
agreement between the Corporation and such officer or director or Section 145 of
the DGCL, to the extent not covered by any insurance policy. On or after the
Effective Date, the Liquidating Trustee shall take all reasonably necessary
action to cause such obligations to be covered by insurance and to be paid by
the insurance company to the extent any such obligation is covered by any
insurance policy. To the extent not covered by insurance, any expenses
(including attorney's fees) incurred by an officer or director of the
Corporation in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the Trust and advanced by the
Liquidating Trustee to such officer or director in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that such person is not authorized to be indemnified
pursuant to Section 145 of the DGCL.
ARTICLE 15
RESIGNATION AND REMOVAL OF TRUSTEES
15.1 TRUSTEE RESIGNATION. Subject to Section 15.2, the Liquidating
Trustee and the Delaware Trustee shall have the right to resign at any time upon
thirty (30) days written notice to the Beneficiaries. Upon such resignation, the
holders of a majority in Interest of the Beneficiary Interests shall appoint a
successor liquidating trustee and/or a successor Delaware trustee.
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15.2 REMOVAL OF TRUSTEE. The Liquidating Trustee and the Delaware
Trustee may be removed and its duties terminated at any time with respect to the
Trust, and its successor appointed, by written action of Beneficiaries holding
aggregate Beneficiary's Percentage Interests of more than 66.7% of all
Beneficiary's Interests.
15.3 APPOINTMENT OF SUCCESSOR. No resignation or removal of either
of the Trustees (the "RELEVANT TRUSTEE") and no appointment of a successor
trustee pursuant to this Article 15 shall become effective until the acceptance
of appointment by the successor trustee. If an instrument of acceptance by the
successor trustee shall not have been delivered to the Relevant Trustee within
30 days after the giving of such notice of resignation, the Relevant Trustee may
petition, at the expense of the Trust, any court of competent jurisdiction for
the appointment of a successor trustee.
ARTICLE 16
MISCELLANEOUS PROVISIONS
16.1 FILING DOCUMENTS.
A copy of this Agreement and all amendments thereof shall be available at all
reasonable times for inspection by any Beneficiary or his duly authorized
representative at ▇▇▇▇▇ Fargo Bank Minnesota, National Association, Customized
Fiduciary Services, MAC ▇▇▇▇▇-▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ (or the address of any successor trustee, which address
shall be inserted herein at the time of such succession) and a copy shall be
filed on Form 8-K with the SEC. The Liquidating Trustee shall file or record any
instrument which relates to any change in the office of the Liquidating Trustee.
16.2 AMENDMENTS. Except with respect to Section 12.3 and Article 14
hereof, the Beneficiaries having more having more than 66.7% of the aggregate
Beneficiary's Percentage Interests shall have the right at any time to amend any
of the provisions of this Agreement with respect to the Trust, or any amendment
thereto, provided that, to the extent such amendment or modification increases
or adversely impacts the obligations of Trustees hereunder, the consent of
Trustees shall be required in order to make such amendment effective.
16.3 INTENTION OF PARTIES TO ESTABLISH TRUST; FEDERAL INCOME TAX
INTENTIONS. It is intended that the Trust be classified for federal income tax
purposes as a "liquidating trust" within the meaning of U.S. Treasury Regulation
Section 301.7701-4(d) (Section 331 of the Code). The Beneficiaries are intended
to be treated for federal income tax purposes as having received the Assets from
the Corporation and then as having contributed the Assets to the Trust, and such
transfer of the Assets is intended to be treated as a distribution to the
stockholders of the Corporation pursuant to the Corporation's plan of complete
liquidation. The Beneficiaries will be treated as the grantors and deemed owners
of the Trust and they will be treated for federal income tax purposes as owning
undivided interests in its Assets.
16.4 TAX WITHHOLDING. The Liquidating Trustee shall withhold from
any amount held on behalf of or distributable from the Trust at any time to any
Beneficiary, and may deposit such amounts withheld with the applicable taxing
authority, such sum or sums as the Liquidating Trustee determines are required
by law to be withheld in respect of any taxes or other charges
with respect to such Beneficiary. The Liquidating Trustee may require any
Beneficiary to provide, in the manner required by the Liquidating Trustee, such
information that the Liquidating Trustee determines is required to satisfy the
Liquidating Trustee's obligations under applicable tax law, and the Liquidating
Trustee may condition any distribution to any Beneficiary upon compliance with
such requirement. Amounts withheld pursuant to this Section 16.4 with respect to
a Beneficiary shall be treated as having been distributed to such Beneficiary
for purposes of determining the distributions which such Beneficiary has
received and is entitled to receive hereunder.
16.5 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 given by U.S. mail addressed to such person at his address as
shown in the records of the Liquidating Trustee.
16.6 GOVERNING LAW. The Trust has been accepted by the Trustees and
will be administered in the State of Delaware. The validity, construction and
all rights hereunder, and the validity and construction of this Agreement, shall
be governed by the laws of the State of Delaware, without regard for conflicts
of laws principles; provided, however, that there shall not be applicable to the
parties hereunder or this Agreement any provision of the laws (common or
statutory) of the State of Delaware pertaining to trusts that relate to or
regulate, in a manner inconsistent with the terms hereof, (a) the filing with
any court or governmental body or agency of trustee accounts or schedules of
trustee fees and charges, (b) affirmative requirements to post bonds for
trustees, officers, agents or employees of a trust, (c) the necessity for
obtaining court or other governmental approval concerning the acquisition,
holding or disposition of real or personal property, (d) fees or other sums
payable to trustees, officers, agents or employees of a trust, (e) the
allocation of receipts and expenditures to income or principal, (f) restrictions
or limitations on the permissible nature, amount or concentration of trust
investments or requirements relating to the titling, storage or other manner of
holding or investing Trust Assets or (g) the establishment of fiduciary or other
standards of responsibility or limitations on the acts or powers of trustees
that are inconsistent with the limitations or authorities and powers of the
Trustees hereunder as set forth or referenced in this Agreement; provided,
further, Section 3540 of Title 12 of the Delaware Code shall not apply to the
Trust.
16.7 SEVERABILITY. In the event any provision of this Agreement or
the application thereof to any person or circumstance shall be finally
determined 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 determined to be 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.
16.8 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.
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IN WITNESS WHEREOF, the Corporation and the Liquidating
Trustee and the Delaware Trustee have executed this LIQUIDATING TRUST AGREEMENT
on the day and year hereinabove first written.
JMXI, INC.: LIQUIDATING TRUSTEE:
▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION,
Not in its individual capacity, but solely,
as Liquidating Trustee of the JMXI
Liquidating Trust
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------- ---------------------------------------
NAME: ▇▇▇▇▇▇ ▇▇▇▇▇▇ NAME: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
TITLE: CHIEF EXECUTIVE OFFICER TITLE: ASSISTANT VICE PRESIDENT
DELAWARE TRUSTEE:
▇▇▇▇▇ FARGO DELAWARE TRUST COMPANY,
Not in its individual capacity, but solely
as Delaware Trustee of the JMXI Liquidating
Trust
By:/s/ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
NAME: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
TITLE: VICE PRESIDENT