EXHIBIT 10.25
PLANET POLYMER TECHNOLOGIES, INC.
Grantor
and
U.S. BANK
Trustee
ROYALTY LIQUIDATION TRUST
TRUST AGREEMENT
Dated as of November 29, 2004
THIS TRUST AGREEMENT, dated as of November 29, 2004, is made by and
between PLANET POLYMER TECHNOLOGIES, INC, as Grantor, and U.S. BANK, as Trustee.
In consideration of the mutual agreements herein contained, each party
agrees as follows for the benefit of the Beneficiaries:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Whenever used in this Agreement, the following
words and phrases shall have the following meanings:
"Administrator" shall mean Planet Royalty Administrator, LLC and
thereafter any Person appointed as successor as herein provided to service the
Royalty Contracts.
"Agreement" shall mean this Trust Agreement and all amendments hereof and
supplements hereto.
"Available Funds" shall mean collected funds in the Collection Account in
excess of the Reserve Amount.
"Beneficiary" shall mean the holders of beneficial interests in the Trust.
"Beneficiaries' Interest" shall have the meaning specified in Section 4.1.
"Beneficiary Register" shall mean the register maintained pursuant to
Section 6.3, providing for the registration of the beneficial interests and
transfers and exchanges thereof.
"Business Day" shall mean any day other than a Saturday, a Sunday or a day
on which banking institutions or trust companies in New York, New York or San
Diego, California are authorized or obligated by law or executive order to be
closed.
"Closing Date" shall mean November 29, 2004.
"Collections" shall mean all payments received by the Trustee in respect
of the Royalty Contracts in the form of cash, checks, wire transfers, ATM
transfers or any other form of payment.
"Collection Account" shall have the meaning specified in subsection
4.2(a).
"Eligible Institution" shall mean a depository institution organized under
the laws of the United States or any one of the states thereof, including the
District of Columbia, the deposits of which are insured by the Federal Deposit
Insurance Corporation ("FDIC").
"Eligible Investments" shall mean (i) negotiable instruments or securities
represented by instruments in bearer or registered form which evidence
obligations fully guaranteed as to timely payment by the United State of America
with a maturity of one year or less; and (ii) certificates of deposit, demand
deposits, time deposits in, and money market funds issued by the Trustee.
"FDIC" shall mean the Federal Deposit Insurance Corporation.
"Governmental Authority" shall mean the United States of America, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Grantor" shall mean Planet Polymer Technologies, Inc.
"Internal Revenue Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Net Royalties" shall mean gross royalties received by the Trust during
any applicable period less payments to the Trustee, Grantor, and/or
Administrator during such period.
"Obligors" shall mean BASF, Alltech, ▇▇▇▇, Inc., and their respective
successors.
"Opinion of Counsel" shall mean a written opinion of legal counsel.
"Paying Agent" shall mean any paying agent appointed pursuant to Section
6.6 and shall initially be the Trustee.
"Payment Date" shall mean the twentieth day of each calendar quarter.
"Person" shall mean any legal person, including any individual,
corporation, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, governmental entity or other entity of
similar nature.
"Record Date" shall mean with respect to any Payment Date the last day of
the preceding calendar month and with respect to any meeting or vote of the
Beneficiaries, the last day of the calendar month preceding the date notice of
such meeting or vote is given.
"Registrar" shall have the meaning specified in Section 6.3(a) and shall
initially be the Trustee.
"Reserve Amount" shall mean $30,000.00.
"Responsible Officer" shall mean the President, any Executive Vice
President, Senior Vice President, Vice President, the Secretary, and, with
respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
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"Royalty Contracts" shall mean that certain Sale and Licensing Agreement
(For Certain Technology For Use in Connection with Fruit, Vegetable, Floral,
Nursery and Related Products) dated March 31, 2003, between Grantor and Agway,
Inc., whose interest has been sold and assigned to BASF; that certain Sale and
Licensing Agreement (For Certain Technology In Connection with Animal Feed,
Fertilizer, and Related Products) dated March 31, 2003, between Grantor and
Agway, Inc, whose interest has been sold and assigned to Alltech; and that
certain Royatly Contract between Grantor and ▇▇▇▇, Inc.
"Trust" shall mean the trust created by this Agreement.
"Trust Assets" shall have the meaning specified in Section 2.1.
"Trust Office" shall mean the principal office of the Trustee at which at
any particular time its trust business shall be administered, which office at
the date of the execution of this Agreement is located at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
"Trustee" shall initially mean U.S. Bank and thereafter any successor
trustee appointed as herein provided.
"Trustee's Fees" shall mean $15,000.00 per annum.
"UCC" shall mean the Uniform Commercial Code, as amended from time to
time, as in effect in any specified jurisdiction.
"Unit" shall have the meaning specified in Section 6.1.
Section 1.2 Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in Section
1.1, and accounting terms partly defined in Section 1.1 to the extent not
defined, shall have the respective meanings given to them under generally
accepted accounting principles or regulatory accounting principles, as
applicable. To the extent that the definitions of accounting terms herein are
inconsistent with the meanings of such terms under generally accepted accounting
principles or regulatory accounting principles, the definitions contained herein
shall control.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; and Section, subsection,
Schedule and Exhibit references contained in this Agreement are references to
Sections, subsections, Schedules and Exhibits in or to this Agreement unless
otherwise specified.
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ARTICLE II
CONVEYANCE OF ROYALTY RIGHTS
Section 2.1 Conveyance To Trust. By execution of this Agreement, the
Grantor does hereby transfer, assign, set-over and otherwise convey to the Trust
for the benefit of the Beneficiaries, all right, title and interest of the
Grantor in and to the right to receive royalty and other payments under the
Royalty Contracts ("Royalty Rights"), all monies due or to become due with
respect thereto, all "proceeds" (as defined in Section 9-306 of the UCC as in
effect in the State of California) thereof, and all insurance proceeds relating
thereto, if any (including without limitation, cash in the amount delivered to
Trustee on the Closing Date previously received by Grantor with respect to the
Royalty Rights). Notwithstanding the foregoing, Grantor reserves the right to
receive from the Royalty Rights and other Available Funds reimbursement for any
and all expenses Grantor incurs in connection with Royalty Contracts and the
Trust. Such property, together with all monies on deposit and Eligible
Investments in the Collection Account, if any, shall constitute the assets of
the Trust (the "Trust Assets"). The foregoing transfer, assignment, set-over and
conveyance does not constitute and is not intended to result in a creation or an
assumption by the Trust, the Trustee or any Beneficiary of any obligation of
Grantor or any other Person in connection with the Royalty Contracts or any
agreement or instrument relating to the Royalty Contracts.
In connection with such transfer, the Grantor further agrees, at its own
expense, on or prior to the Closing Date to indicate in its computer files and
other business records and accounting statements that the Royalty Rights have
been transferred to the Trust pursuant to this Agreement for the benefit of the
Beneficiaries, and to endorse, deliver, record and file, at its own expense,
such further documents and instruments, in such manner and in such
jurisdictions, as may be requested to perfect the transfer and assignment of the
Royalty Rights to the Trust.
Section 2.2 Acceptance by Trustee.
(a) The Trustee hereby acknowledges its acceptance on behalf of the Trust
of all right, title and interest previously held by Grantor in and to the
Royalty Rights and declares that it shall maintain such right, title and
interest, upon the trust herein set forth, for the benefit of all Beneficiaries.
(b) The Trustee shall have no power to create, assume or incur
indebtedness or other liabilities or to acquire or dispose of any property in
the name of the Trust other than as contemplated in this Agreement.
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ARTICLE III
ADMINISTRATION OF ROYALTY CONTRACTS
Section 3.1 Acceptance of Appointment and Other Matters Relating to
Administrator.
(a) The Grantor, in its capacity as originator of the Royalty Contracts
hereby appoints Planet Royalty Administrator, LLC to act as the Administrator
under this Agreement and Planet Royalty Administrator, LLC hereby agrees to act
as the Administrator under this Agreement
(b) The Administrator shall service and administer the Royalty Contracts
and shall collect payments due under the Royalty Contracts in accordance with
commercially reasonable standards and shall have full power and authority,
acting alone or through any party properly designated by it hereunder to do any
and all things in connection with such administration which it may deem
necessary or desirable. Without limiting the generality of the foregoing and
subject to Section 9.1, the Administrator is hereby authorized and empowered to
execute and deliver, on behalf of the Trust for the benefit of the
Beneficiaries, any and all instruments of satisfaction or cancellation, or of
partial or full release or discharge, and all other comparable instruments, with
respect to the Royalty Contracts and, after default of the Royalty Contracts and
to the extent permitted under and in compliance with applicable law and
regulations, to commence enforcement proceedings with respect to the Royalty
Contracts. The Trustee shall furnish the Administrator with any documents
necessary or appropriate to enable the Administrator to carry out its
administrative duties hereunder.
Section 3.2 Administrative Expense Reimbursement. Administrator shall be
entitled to reimbursement, from amounts otherwise distributable to
Beneficiaries, of all expenses and liabilities incurred by Administrator in
connection with its efforts to collect the Royalty Rights, enforce the
provisions of the Royalty Contracts and/or satisfying any indemnity or other
obligations of Grantor under the Royalty Contracts. The Administrator shall also
be entitled to be paid reasonable compensation for administration of the Trust
not to exceed the lesser of (i) $10,000 per year, or (ii) twenty-five percent
(25%) of Net Royalties received by the Trust for such year, payable quarterly on
each Payment Date.
Section 3.3 Quarterly Reports for the Trustee. At least ten (10) Business
Days preceding a Payment Date, the Administrator shall forward to the Trustee a
report setting forth (i) the aggregate amount of Collections received by
Administrator, if any, during the preceding quarter, (ii) a description of
collection expenses or other sums, if any, for which Administrator is claiming
reimbursement, and a description of any significant event occurring with respect
to the Royalty Contracts during such period.
Section 3.4 Tax Treatment. It is the intent of the Grantor and the
Beneficiaries that, for United States of America federal and state tax purposes,
the Beneficiaries will have an ownership interest in the Royalty Rights and
other Trust Assets and royalty income of the Trust will be proportionately
allocated to the Beneficiaries, and reported, to the extent required by law, for
federal and state income tax purposes.
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Section 3.5 Notices to Grantor. In the event that Grantor is no longer
acting as Administrator, any Successor Administrator appointed pursuant to
Section 8.3 shall deliver or make available to Grantor each report required to
be prepared, forwarded or delivered thereafter pursuant to Section 3.3.
ARTICLE IV
RIGHTS OF BENEFICIARIES AND
ALLOCATION AND APPLICATION
OF COLLECTIONS
Section 4.1 Rights of Beneficiaries. Beneficiaries will have an ownership
interest in the Royalty Rights and other Trust Assets expressed in terms of
Units (as defined in this Agreement) and royalty income of the Trust will be
proportionately distributed to the Beneficiaries in accordance with the terms of
this Article IV and the Trust
Section 4.2 Establishment and Administration of Collection Account.
(a) The Collection Account. The Trustee, for the benefit of the
Beneficiaries, shall cause to be established and maintained in the name of the
Trust with an Eligible Institution (which may be the Trustee) a segregated trust
account ("Collection Account"), bearing a designation clearly indicating that
the funds and Eligible Investments deposited therein are held for the benefit of
the Beneficiaries.
(b) Administration of the Collection Account. Funds on deposit in the
Collection Account shall at the direction of the Trustee be invested by the
Trustee in Eligible Investments that will mature so that such funds will be
available prior to the Payment Date following such investment. The Trustee shall
maintain possession of the negotiable instruments or securities evidencing the
Eligible Investments from the time of purchase thereof until the time of sale or
maturity. Funds on deposit in the Collection Account in excess of the Reserve
Amount shall only be in invested in Eligible Investments as described in
sub-clause (ii) of the definition of Eligible Investments in Section 1.1 of this
Agreement.
Section 4.3 Collections.
(a) Collections. Administrator shall use good faith efforts to collect and
cause to be delivered to Trustee the payments due under the Royalty Contracts on
the due dates therefor prior to each Payment Date.
Section 4.4 Application of Available Funds. The Trustee shall make on each
Payment Date from Available Funds in the Collection Account with respect to the
quarter preceding such Payment Date, the following distributions in the
following priorities:
(a) Payment of Trustee's Fees and reimbursement of expenses incurred by
Trustee;
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(b) Payment to Grantor of expenses and other sums Grantor is entitled to
be paid and reimbursed for under this Agreement;
(c) Payment to Administrator of expenses and other sums Administrator is
entitled to be paid and/ or reimbursed for under this Agreement; and
(d) Distribution to each Beneficiary of record on the preceding Record
Date such Beneficiary's pro rata share (based on the aggregate Units held by
such Beneficiary) of Available Funds in the Collection Account. Such
distribution shall be made by check mailed to each Beneficiary. If any
distribution to a Beneficiary would be less than $5.00, other than with respect
to the Final Distribution, Trustee shall hold such distribution amount in trust
for such Beneficiary until the Payment Date on which a distribution of $5.00 or
more can be made. If any payment to a Beneficiary is returned as "undeliverable"
or "address unknown" for two (2) consecutive Payment Dates or distribution
checks from the Trustee remain uncashed for a period of six (6) months following
two (2) consecutive Payment Dates, the Trustee may cease distributions to such
Beneficiary and shall hold such distribution for the benefit of such Beneficiary
in the Collection Account until the earlier of (i) receipt of notification of a
proper address for such Beneficiary, or (ii) termination of the Trust at which
time such amount shall be distributed as provided in Article X of this
Agreement.
ARTICLE V
REPORTS TO BENEFICIARIES
Section 5.1 Annual Beneficiaries' Statements.
(a) As of the last day of each calendar year and on or before February
15th of each year, the Trustee shall forward to each Beneficiary a statement
setting forth the following information (which shall be stated on the basis of
per unit-amount):
(i) the total amount collected during the calendar year;
(ii) the total amount distributed during the calendar year;
(iii) the amount of such distribution allocable to royalty payments
received by the Trust;
(iv) the amount of such distribution allocable to other payments to
the Trust;
(v) a statement of the assets and liabilities of the Trust;
(vi) a description of any change in the Assets of the Trust and any
actions taken by the Trustee with respect to the assets of the Trust.
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(vii) such other information regarding the activities of the Trust
as may reasonably be required for Beneficiaries to prepare their Federal
and state income tax returns.
Section 5.2 Interim Reports. The Trustee shall deliver to the
Beneficiaries such interim reports as may be necessary or advisable to inform
Beneficiaries of significant events relating to the material assets of the
Trust.
ARTICLE VI
THE BENEFICIARIES
Section 6.1 The Beneficiaries. The Beneficiaries of the Trust are the
holders of record of shares of common stock of Grantor as of September 30, 2004
and their permitted successors and assigns. The beneficial interest of a
Beneficiary shall be transferable only pursuant to the provisions of Section
6.2. Each Beneficiary shall be deemed to hold the number of units of beneficial
ownership ("Units") equal to the number of issued and outstanding shares of
common stock of Grantor held of record as of September 30, 2004 by that
Beneficiary.
Section 6.2 Registration of Beneficiaries.
(a) The Trustee shall cause to be kept at the office or agency to be
maintained by a registrar (which initially shall be the Trustee) (the
"Registrar") a register (the "Register") in which, subject to such reasonable
regulations as it may prescribe, the Registrar shall provide for the
registration of the name and address of each beneficiary and the number Units
held by each Beneficiary of Record. The Trustee shall be permitted to resign as
Registrar upon 30 days' written notice to the Grantor; provided, however, that
such resignation shall not be effective and the Trustee shall continue to
perform its duties as Registrar until the Grantor has appointed a successor
Registrar.
Units of beneficial interest are not transferable except upon death or by
operation of law. The Trustee may rely on a death certificate, court order,
certificate of any executor of an estate or successor trustee of any trust, or
in the case of a corporation, any executive officer of such corporation, in
establishing whether the Beneficiary seeking to transfer its beneficial
interest(s) may make such transfer. Each transferee shall be required to
acknowledge the provisions of this Agreement and shall agree to be bound by the
terms of this Agreement as a condition of the transfer of a beneficial interest.
Upon the completion of such transfer, the Registrar shall update the Register
and name the transferee as the holder of the Unit(s).
No service charge shall be made for any registration of transfer, but the
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer.
(b) Prior to the registration of any transfer, the Registrar may request
an opinion of counsel in form and content satisfactory to Trustee in its sole
discretion that such transfer is in compliance with applicable Federal and state
securities laws and that transfer of the beneficial
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interest is exempt from registration and/or qualification under the Securities
Act of 1933 and applicable state law.
Section 6.3 Appointment of Paying Agent. The Paying Agent shall make
distributions to Beneficiaries from the Collection Account as specified in this
Agreement. Any Paying Agent shall have the revocable power to withdraw funds
from the Collection Account for the purpose of making distributions referred to
above. The Trustee may revoke such power and remove the Paying Agent if the
Trustee determines in its sole discretion that the Paying Agent shall have
failed to perform its obligations under this Agreement in any material respect.
The Paying Agent shall initially be the Trustee ("Paying Agent"). The Trustee
shall be permitted to resign as Paying Agent upon 30 days' written notice to the
Trustee. In the event that the Trustee shall no longer be the Paying Agent, the
Trustee shall appoint a successor to act as Paying Agent. The Trustee shall
cause such successor Paying Agent or any additional Paying Agent appointed by
the Trustee to execute and deliver to the Trustee an instrument in which such
successor Paying Agent or additional Paying Agent shall agree with the Trustee
that, as Paying Agent, such successor Paying Agent or additional Paying Agent
will hold all sums, if any, held by it for payment to the Beneficiaries in trust
for the benefit of the Beneficiaries entitled thereto until such sums shall be
paid to such Beneficiaries.
Section 6.4 Access to List of Beneficiaries' Names and Addresses. The
Trustee will furnish or cause to be furnished by the Registrar, to the
Administrator or the Paying Agent, within five Business Days after receipt by
the Trustee of a request therefor from the Administrator or the Paying Agent,
respectively, in writing, a list in such form as the Administrator or the Paying
Agent may reasonably require, of the names and addresses of the Beneficiaries.
If three or more Beneficiaries (the "Applicants") representing Units in the
Trust aggregating not less than 5% of the outstanding Units apply in writing to
the Trustee, and such application states that the Applicants desire to
communicate with other Beneficiaries with respect to their rights under this
Agreement and is accompanied by a copy of the communication which such
Applicants propose to transmit, then the Trustee, after having been adequately
indemnified by such Applicants for its costs and expenses, shall afford or shall
cause the Registrar to afford such Applicants access during normal business
hours to the most recent list of Beneficiaries held by the Trustee, within
thirty Business Days after the receipt of such application. Such list shall be
as of a date no more than 30 days prior to the date of receipt of such
Applicants' request. Neither the Trustee nor the Registrar, nor any of their
respective agents shall be held accountable by reason of the disclosure of any
such information as to the names and addresses of the Beneficiaries hereunder,
regardless of the source from which such information was derived.
ARTICLE VII
OTHER MATTERS RELATING TO THE GRANTOR
Section 7.1 Limitation on Liability of the Grantor. Neither Grantor, in
its capacity as Grantor, nor any of the directors or officers or employees or
agents of the Grantor shall be under any liability to the Trust, the Trustee,
the Beneficiaries or any other Person for any action taken or for refraining
from the taking of any action in its capacity as Grantor pursuant to this
Agreement whether arising from express or implied duties under this Agreement;
provided,
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however, that this provision shall not protect the Grantor or any such person
against any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or gross negligence in the performance of duties or by
reason of reckless disregard of obligations and duties hereunder. The Grantor
and any director or officer or employee or agent of the Grantor may rely in good
faith on any document of any kind prima facie properly executed and submitted by
any Person respecting any matters arising hereunder.
ARTICLE VIII
OTHER MATTERS RELATING TO THE ADMINISTRATOR
Section 8.1 Merger or Consolidation of, or Assumption of the Obligations
of, the Administrator. The Administrator shall not consolidate with or merge
into any other corporation or convey or transfer its properties and assets
substantially as an entirety to any Person, unless the corporation formed by
such consolidation or into which the Administrator is merged or the Person which
acquires by conveyance or transfer the properties and assets of the Services
substantially as an entirety shall assume the performance of every covenant and
obligation of the Administrator hereunder.
Section 8.2 Limitation on Liability of the Administrator and Others.
Neither the Administrator nor any of the directors or officers or employees or
agents of the Administrator shall be under any liability to the Trust, the
Trustee, the Beneficiaries or any other person for any action taken or for
refraining from the taking of any action in its capacity as Administrator
pursuant to this Agreement; provided, however, that this provision shall not
protect the Administrator or any such person against any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or gross
negligence in the performance of duties or by reason of reckless disregard of
obligations and duties hereunder. The Administrator and any director or officer
or employee or agent of the Administrator may rely in good faith on any document
of any kind prima facie properly executed and submitted by any Person respecting
any matters arising hereunder. The Administrator shall not be under any
obligation to appear in, prosecute or defend any legal action whether or not
incidental to its duties to service the Royalty Contracts in accordance with
this Agreement which in its good faith opinion may result in Administrator
incurring any expense or liability. In the event the Administrator decides not
to pursue legal action in connection with the enforcement of the Royalty
Contracts, Grantor, may at its sole option, pursue any such legal action it
deems necessary or appropriate to enforce such Royalty Contracts including,
without limitation, action to terminate the Royalty Contracts.
Section 8.3 The Administrator Not to Resign. The Administrator shall not
resign from the obligations and duties hereby imposed on it unless (i) the
performance of its duties hereunder is no longer permissible under applicable
law, or (ii) a successor Administrator acceptable to Beneficiaries representing
50% or more of the Units consent in writing to such resignation. No such
resignation shall become effective until the Trustee or a Successor
Administrator shall have assumed the responsibilities and obligations of the
Administrator under this Agreement. If the Administrator fails to perform its
duties, the Grantor shall have the right to appoint a Successor Administrator,
and if the Grantor fails to appoint a Successor Administrator then the Trustee
shall have the right to appoint a Successor Administrator.
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Section 8.4 Access to Certain Documentation and Information Regarding the
Royalty Contracts. The Administrator shall provide to the Trustee access to the
documentation regarding the Royalty Contracts in such cases where the Trustee is
required in connection with the enforcement of the rights of the Beneficiaries,
or by applicable statutes or regulations to review such documentation, such
access being afforded without charge but only (i) upon reasonable request, (ii)
during normal business hours, (iii) subject to the Administrator's normal
security and confidentiality procedures and (iv) at offices designated by the
Administrator.
ARTICLE IX
THE TRUSTEE
Section 9.1 Duties of Trustee. (a) The Trustee undertakes to perform such
duties and only such duties as are specifically set forth in this Agreement.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
substantially conform to the requirements of this Agreement.
(c) Subject to Section 9.1(a) no provision of this Agreement shall be
construed to relieve the Trustee from liability for its own negligent action,
its own negligent failure to act or its own misconduct; provided, however, that:
(i) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(ii) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the Beneficiaries evidencing Units in the
Trust aggregating not less than 51% of the outstanding beneficial
interests relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Agreement; and
(iii) The Trustee shall not be charged with knowledge of any failure
by the Administrator to comply with the obligations of the Administrator
unless a Responsible Officer of the Trustee obtains actual knowledge of
such failure or the Trustee receives written notice of such failure from
the Administrator or any Beneficiaries evidencing Units aggregating not
less than 10% of the beneficial interests.
(d) The Trustee shall not be required to expend or risk its own funds or
otherwise incur financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it, and
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none of the provisions contained in this Agreement shall in any event require
the Trustee to perform, or be responsible for the manner of performance of, any
obligations of the Administrator under this Agreement.
(e) Except as provided in Section 4.2 the Trustee shall have no power to
vary the corpus of the Trust including, without limitation, the power to add any
investment, obligation or security to the Trust or withdraw from the Trust.
Section 9.2 Certain Matters Affecting the Trustee. Except as otherwise
provided in Section 9.1:
(a) The Trustee may rely on and shall be protected in acting on, or in
refraining from acting in accord with, any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other paper
or document believed by it to be genuine and to have been signed or presented to
it pursuant to this Agreement by the proper party or parties;
(b) The Trustee may consult with counsel and any Opinion of Counsel shall
be full and complete authorization and protection in respect of any action taken
or suffered or omitted by it hereunder in good faith and in accordance with such
Opinion of Counsel;
(c) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Agreement, or to institute, conduct or defend any
litigation hereunder or in relation hereto, at the request, order or direction
of any of the Beneficiaries, pursuant to the provisions of this Agreement,
unless such Beneficiaries shall have offered to the Trustee reasonable security
or indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby;
(d) The Trustee shall not be personally liable for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Agreement;
(e) The Trustee shall not be bound to make any investigation into the
facts of matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, requests, consent, order, approval, bond or other paper
or document;
(f) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys or custodian, and the Trustee shall not be responsible for any
misconduct or negligence on the part of any such agent, attorney or custodian
appointed with due care by it hereunder; and
(g) The Trustee, in its capacity as Trustee, shall not be required to make
any initial or periodic examination of any documents or records related to the
Royalty Contracts for the purpose of establishing the presence or absence of
defects or for any other purpose.
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Section 9.3 Trustee Not Liable for Recitals. The Trustee assumes no
responsibility for the correctness of the recitals contained herein. The Trustee
makes no representations as to the validity or sufficiency of this Agreement or
of any document related to the Royalty Contracts.
Section 9.4 Trustee May Own Beneficial Interests. The Trustee in its
individual or any other capacity may become the owner or pledgee of beneficial
interests with the same rights as it would have if it were not the Trustee.
Section 9.5 Trustee's Fees and Expenses. Trustee shall be entitled to
receive reasonable compensation (which shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust) for all
services rendered by it in the execution of the trust hereby created and in the
exercise and performance of any of the powers and duties hereunder of the
Trustee, and the Trustee shall be entitled to be reimbursed, upon its request,
for all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any of the provisions of this Agreement (including
the reasonable fees and expenses of its agents and counsel) except any such
expense, disbursement or advance as may arise from its gross negligence or bad
faith and except as provided in the following sentence. The Trustee is
authorized to maintain the Reserve Amount in the Collection Account for the
payment of the fees and reimbursement of expenses of the Trustee under this
Agreement.
Section 9.6 Eligibility Requirements for Trustee. The Trustee hereunder
shall at all times be a corporation organized and doing business under the laws
of the United States of America or any state thereof authorized under such laws
to exercise corporate trust powers, having a combined capital and surplus of at
least $10,000,000 and subject to supervision or examination by Federal or state
authority. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purpose of this Section 9.6, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 9.6, the Trustee shall resign immediately in the
manner and with the effect specified in Section 9.7.
Section 9.7 Resignation or Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from the trust
hereby created by giving written notice thereof to the Grantor. Upon receiving
such notice of resignation, the Grantor shall promptly appoint a successor
trustee by written instrument, in duplicate, one copy of which instrument shall
be delivered to the resigning Trustee and one copy to the successor trustee. If
no successor trustee shall have been so appointed and have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 9.6 hereof and shall fail to resign after written
request therefor by the Grantor, or if at any time the Trustee shall be legally
unable to act, or shall be adjudged a bankrupt or insolvent, or if a receiver of
the Trustee or of its property shall be appointed, or any
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public officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Grantor, and/or Beneficiaries by vote of more than 50% of the Units, may remove
the Trustee and promptly appoint a successor trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee.
(c) Any resignation or removal of the Trustee and appointment of successor
trustee pursuant to any of the provisions of this Section 9.7 shall not become
effective until acceptance of appointment by the successor trustee as provided
in Section 9.8 hereof.
Section 9.8 Successor Trustee.
(a) Any successor trustee appointed as provided in Section 9.7 hereof
shall execute, acknowledge and deliver to the Grantor and to its predecessor
Trustee an instrument accepting such appointment pursuant to the terms of this
Agreement, and thereupon the resignation or removal of the predecessor Trustee
shall become effective and such successor trustee, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as Trustee herein. The predecessor Trustee shall deliver to the successor
trustee all documents and statements held by it hereunder; and the Grantor and
the predecessor Trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for fully and certainly vesting and
confirming in the successor trustee all such rights, power, duties and
obligations.
(b) No successor trustee shall accept appointment as provided in this
Section 9.8 unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 9.6 hereof.
(c) Upon acceptance of appointment by a successor trustee as provided in
this Section 9.8 hereof, such successor trustee shall mail notice of such
succession hereunder to all Beneficiaries at their addresses as shown in the
Register.
Section 9.9 Merger or Consolidation of Trustee. Any Person into which the
Trustee may be merged or converted or with which it may be consolidated, or any
Person resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any Person succeeding to the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be eligible under the provisions of Section 9.6
hereof, without the execution or filing of any paper or any further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 9.10 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Trust may at the time be located, the Trustee shall have the
power and may execute and deliver all instruments to appoint one or more persons
to act as a co-trustee or co-trustees, or separate
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trustee or separate trustees, of all or any part of the Trust, and to vest in
such Person or Persons, in such capacity and for the benefit of the
Beneficiaries, such title to the Trust, or any part thereof, and, subject to the
other provisions of this Section 9.10, such powers, duties, obligations, rights
and trusts as the Trustee may consider necessary or desirable. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility as
a successor trustee under Section 9.6 and no notice to Beneficiaries of the
appointment of any co-trustee or separate trustee shall be required under
Section 9.8 hereof.
(b) Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(i) All rights, powers, duties and obligations conferred or imposed
upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee or co-trustee jointly
(it being understood that such separate trustee or co-trustee is not
authorized to act separately without the Trustee joining in such act),
except to the extent that under any use of any jurisdiction in which any
particular act or acts are to be performed (whether as Trustee hereunder
or as successor to the Administrator hereunder), the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations (including the holding or
title to the Trust or any portion thereof in any such jurisdiction) shall
be exercised and performed singly by such separate trustee or co-trustee,
but solely at the direction of the Trustee;
(ii) No trustee hereunder shall be personally liable by reason of
any act or omission of any other trustee hereunder; and
(iii) The Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article X. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or separately, as
may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to the
Administrator.
(d) Any separate trustee or co-trustee may at any time constitute the
Trustee, its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect to this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
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Section 9.11 Tax Returns. In the event the Trust shall be required to file
tax returns, the Trustee shall prepare or shall cause to be prepared any tax
returns required to be filed by the Trust before such returns are due to be
filed. Trustee shall also prepare or shall cause to be prepared all tax
information required by law to be distributed to Beneficiaries.
Section 9.12 Trustee May Enforce Claims. All rights of action and claims
under this Agreement may be prosecuted and enforced by the Trustee without the
possession of any of the beneficial interests, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee. Any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Beneficiaries in respect of which
such judgment has been obtained.
Section 9.13 Suits for Enforcement of Royalty Contracts. If the
Administrator and Grantor elect not to take action to enforce the Royalty
Contracts under this Agreement, the Trustee, in its discretion, may proceed to
protect and enforce its rights and the rights of the Beneficiaries under the
Royalty Contracts by suit, action or proceeding in equity or at law or
otherwise, whether for the specific performance of any covenant or agreement
contained in the Royalty Contracts as the Trustee, being advised by counsel,
shall deem most effectual to protect and enforce any of the rights of the
Trustee or the Beneficiaries in the Royalty Contracts. Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept or
adopt on behalf of any Beneficiary any plan of reorganization, arrangement,
adjustment or composition affecting the Beneficiaries, or authorize the Trustee
to vote in respect of the claim of any Beneficiary in any such proceeding.
Section 9.14 Rights of Beneficiaries to Direct Trustee. Beneficiaries
owning not less than 66 2/3 % of the Units shall have the right to direct the
time, method, and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee;
provided, however, that, subject to Section 9.1, the Trustee shall have the
right to decline to follow any such direction if the Trustee being advised by
counsel determines that the action so directed may not lawfully be taken, or if
the Trustee in good faith shall, by a Responsible Officer or Responsible
Officers of the Trustee, determine that the proceedings so directed would be
illegal or involve it in personal liability or be unduly prejudicial to the
rights of Beneficiaries not parties to such direction; and provided further that
nothing in this Agreement shall impair the right of the Trustee to take any
action deemed proper by the Trustee and which is not inconsistent with such
direction by the Beneficiaries.
ARTICLE X
TERMINATION
Section 10.1 Termination of Trust.
(a) The respective obligations and responsibilities of the Grantor, the
Administrator and the Trustee created hereby (other than the obligation of the
Trustee to make payments to
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Beneficiaries as hereafter set forth) shall terminate, except with respect to
the duties described in subsection 10.2(b), upon the earlier of (i) November 30,
2007, unless extended as provided herein (such date as extended, if applicable,
is referred to as the "Final Trust Termination Date"); or (ii) the day following
any Payment Date on or after 5 years from the initial date of this Agreement if
there have been no Net Royalties for six consecutive calendar quarters
immediately proceeding such Payment Date; or (iii) the day following the Payment
Date for the quarter period in which the last of the Royalty Contracts has been
terminated or Grantor, Administrator and Trustee shall each agree that all
Royalty Rights and remedies to enforce such rights have been reasonably
exhausted or have no commercially reasonable value.
(b) The Final Trust Termination Date shall be extended for one (1) or more
3-year extension periods (or such shorter or longer period as may be allowed by
"no action" letters obtained by the Administrator from the Securities and
Exchange Commission ("SEC")) provided the Trustee has received from
Administrator a certificate certifying to the best of knowledge of such
Administrator that (i) Royalty Rights have commercially reasonable value and
that collections with respect to the Royalty Rights are reasonably expected to
exceed the Trustee's fee and other costs and expenses of administering the
Trust; and (ii) a "no action" letter issued by the SEC in reasonable and
customary form acknowledging that the SEC will not recommend enforcement action
if the Final Trust Termination Date is extended for such additional period.
Section 10.2 Final Distribution.
(a) Written notice of any termination, specifying the Payment Date for
payment of the final distribution, shall be given by the Trustee to
Beneficiaries mailed not later than the 5th day of the month of such final
distribution specifying (a) the distribution date (which shall be the Payment
Date in the month in which the notice is given) upon which final payment will be
made, (b) the amount of any such final payment and (c) that the Record Date
otherwise applicable to such Payment Date is not applicable. The Trustee shall
give such notice to the Registrar and the Paying Agent at the time such notice
is given to Beneficiaries.
(b) In the event that that the Trustee receives notice or a return of
final distribution materials indicating that a Beneficiary did not receive the
final distribution materials within six months of the date the first notice was
sent, the Trustee shall give a second written notice to that Beneficiary. If
Trustee receives notice or a return of the final distribution materials
indicating that the Beneficiary did not receive the second notice, or if the
Beneficiary otherwise fails to respond to the second notice, the Trustee shall
distribute all funds in the Collection Account held for the benefit of such
Beneficiary to the Grantor, or its successor-in-interest, or if there shall be
no such successor, Trustee shall escheat such funds to the State of California
in accordance with applicable law.
Section 10.3 Disposition of Royalty Rights After Grantor's Termination.
(a) In the event the Administrator reasonably believes the Trust will
terminate prior to the date the last of the Royalty Contract terminates and the
Administrator believes the remaining royalty rights have commercial value, the
Administrator shall take reasonable steps to
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solicit cash offers to purchase the Royalty Rights. In the event the
Administrator or Trustee receive one or more cash offers to purchase all or any
portion of the Royalty Rights, on or before ninety (90) days after the
Termination Date of the Trust, the Administrator and Trustee shall take all
reasonable steps to accept such offer or offers and consummate such transactions
on or before 90 days after the termination of the Trust, provided, however, in
no event shall the Trustee or the Administrator be required to make any
representation or warranty of any kind relating to the Royalty Rights, except
representations solely in the name of the Trust for which neither the
Administrator nor the Trustee have personal responsibility. Administrator and
Trustee are authorized to execute any and all documents and instruments of
conveyance which may be necessary or appropriate to consummate any such sales.
(b) Upon the termination of the Trust pursuant to Section 10.1(i) or (ii),
unless the Trustee has sold the Royalty Rights as provided in sub-section (a) of
this Section 10.3, the Trustee shall assign and convey to the Grantor (without
recourse, representation or warranty) all right, title and interest of the Trust
in the Royalty Rights, whether then existing or thereafter created, and all
proceeds thereof and insurance proceeds relating thereto. The Trustee shall
execute and deliver such instruments of transfer and assignment, in each case
without recourse, as shall be reasonably requested by the Grantor to vest in the
Grantor all right, title and interest which the Trust had in the Royalty
Contracts.
(c) In the event any of the Royalty Contracts shall be terminated for any
reason prior to the end of the term provided in such Royalty Contract, unless
the Trustee has sold the Royalty Rights as provided in sub-section (a) of this
Section 10.3, the Trustee shall assign and convey to the Grantor (without
recourse, representation or warranty) all right, title and interest of the Trust
in the Royalty Rights with respect to the terminated Royalty Contract, whether
then existing or thereafter created, and all proceeds thereof and insurance
proceeds relating thereto. The Trustee shall execute and deliver such
instruments of transfer and assignment, in each case without recourse, as shall
be reasonably requested by the Grantor to vest in the Grantor all right, title
and interest which the Trust had in the Royalty Contracts.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.1 Amendment.
(a) This Agreement may be amended from time to time by unanimous consent
of the Administrator, the Grantor and the Trustee, without the consent of any of
the Beneficiaries, to cure any ambiguity, to correct or supplement any
provisions herein which may be inconsistent with any other provisions herein or
to add any other provisions with respect to matters or questions raised under
this Agreement which shall not be inconsistent with the provisions of this
Agreement; provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interests of
the Beneficiaries. The Trustee may, but shall not be obligated to, enter into
any such amendment which affects the Trustee's rights, duties or immunities
under this Agreement or otherwise.
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(b) This Agreement may also be amended from time to time by the
Administrator, the Grantor and the Trustee with the consent of the Beneficiaries
evidencing not less than 66 2/3% of the outstanding Units, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Beneficiaries; provided, however, that no such amendment shall (i) reduce in any
manner the amount of distributions which are required to be made without the
consent of such Beneficiary, (ii) change the definition of or the manner of
calculating the Beneficiaries' Interest without the consent of each Beneficiary
or (iii) reduce the aforesaid percentage required to consent to any such
amendment, in each case without the consent of each Beneficiary.
(c) Promptly after the execution of any such amendment or consent the
Trustee shall furnish written notification of the substance of such amendment to
each Beneficiary.
(d) It shall not be necessary for the consent of Beneficiaries under this
Section 11.1 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Beneficiaries shall be subject to such reasonable
requirements as the Trustee may prescribe.
Section 11.2 Protection of Right, Title and Interest to Trust. The
Administrator shall cause this Agreement, all amendments hereto and/or any other
necessary documents covering the Beneficiaries and the Trustee's right, title
and interest to the Trust to be properly and promptly recorded and kept, all in
such manner and in such places as may be required by law fully to preserve and
protect the right, title and interest of the Trustee hereunder to all property
comprising the Trust.
Section 11.3 Limitation on Rights of Beneficiaries.
(a) The death or incapacity of any Beneficiary shall not operate to
terminate this Agreement or the Trust, nor shall such death or incapacity
entitle such Beneficiary's legal representatives or heirs to claim an accounting
or to take any action or commence any proceeding in any court for a partition or
winding up of the Trust, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
(b) Nothing herein set forth shall be construed so as to constitute the
Beneficiaries from time to time as partners or members of an association; nor
shall any Beneficiary be under any liability to any third person by reason of
any action taken by the parties to this Agreement pursuant to any provision
hereof.
(c) No Beneficiary shall have any right by virtue of any provisions of
this Agreement to institute any suit, action or proceeding in equity or at law
upon or under or with respect to this Agreement, unless such Beneficiary
previously shall have given to the Trustee, and unless the Beneficiaries owning
not less than 51% of the Units shall have made written request upon the Trustee
to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after its
20
receipt of such notice, request and offer of indemnity, shall have neglected or
refused to institute any such action, suit or proceeding; it being understood
and intended, and being expressly covenanted by each Beneficiary with every
other Beneficiary and the Trustee, that no one or more Beneficiaries shall have
any right in any manner whatever by virtue or by availing itself or themselves
of any provisions of this Agreement to affect, disturb or prejudice the rights
of any of the other Beneficiaries, or to obtain or seek to obtain priority over
or preference to any other such Beneficiary, or to enforce any right under this
Agreement, except in the manner herein provided and for the equal, ratable and
common benefit of all Beneficiaries. For the protection and enforcement of the
provisions of this Section 11.3, each and every Beneficiary and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
Section 11.4 Governing Law. This Agreement shall be construed in
accordance with the laws of the State of California, United States of America,
without reference to its conflict of law provisions, and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws. Any legal action or proceeding arising out of or in connection with
this Agreement, must be brought in the courts of the State of California,
located in San Diego County, California, and/or the United States District Court
in the Southern District of California.
Section 11.5 Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by registered mail, return receipt requested, to (a) in
the case of Grantor or Administrator, to Planet Polymer Technologies, Inc.,
[3852 ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,] Attention: CFO and CEO and
(b) in the case of the Trustee, to the Trust Office; or, as to each party, at
such other address as shall be designated by such party in a written notice to
each other party. Any notice required or permitted to be mailed to a Beneficiary
shall be given by personal delivery (courier or other delivery service) or first
class mail, postage prepaid, at the address of such Beneficiary as shown in the
Register. Any notice so mailed within the time prescribed in this Agreement
shall be conclusively presumed to have been duly given, whether or not the
Beneficiary receives such notice.
Section 11.6 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or rights of the
Beneficiaries thereof.
Section 11.7 Beneficiaries Not Personally Liable. It is the intention of
the parties to this Agreement that the Beneficiaries shall not be personally
liable for the obligations of the Trust, and that the beneficial interests in
the Trust shall be nonassessable for any losses or expenses of the Trust or for
any reason whatsoever.
Section 11.8 Further Assurances. The Grantor and the Administrator agree
to do and perform, from time to time, any and all acts and to execute any and
all further instruments
21
required or reasonably requested by the Trustee to more fully effect the
purposes of this Agreement.
Section 11.9 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Trustee or the Beneficiaries, any right,
remedy, power or privilege, hereunder, shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges therein provided are cumulative and not exhaustive of any rights,
remedies, powers and privileges provided by law.
Section 11.10 Counterparts. This Agreement may be executed in two or more
counterparts (and by different parties on separate counterparts), each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
Section 11.11 Third-Party Beneficiaries. This Agreement will inure to the
benefit of and be binding upon the parties hereto, the Beneficiaries and their
respective successors and permitted assigns. Except as otherwise provided in
this Article XI, no other person will have any right or obligation hereunder.
Section 11.12 Actions by Beneficiaries.
(a) Wherever in this Agreement a provision is made that an action may be
taken or a notice, demand or instruction given by Beneficiaries, such action,
notice or instruction may be taken or given by any Beneficiary, unless such
provision requires a specific percentage of Beneficiaries.
(b) Any request, demand, authorization, direction, notice, consent, waiver
or other act by a Beneficiary shall bind such Beneficiary and every subsequent
Beneficiary upon the registration of transfer thereof or in exchange therefor or
in lieu thereof in respect of anything done or omitted to be done by the Trustee
or the Administrator in reliance thereon.
Section 11.13 Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived, or supplemented except as provided herein.
Section 11.14 Headings. The headings herein are for purposes of reference
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
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IN WITNESS WHEREOF, the Grantor and the Trustee have caused this Agreement
to be duly executed by their respective officers as of the day and year first
above written.
PLANET POLYMER TECHNOLOGIES, INC. U.S. BANK
As Grantor As Trustee
By: _____________________________________ By: ______________________________
▇▇▇▇▇▇ ▇▇▇▇▇, Chief Financial Officer ▇▇▇▇▇ ▇▇▇▇▇, Vice President
23