Exhibit 2.16
EXHITIB C
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Conformed
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LIQUIDATING TRUST AGREEMENT
Dated as of July 18, 2002
Pursuant to the Revised Stipulation of Settlement dated as of January 29, 2002
IN RE ▇▇▇▇▇▇▇▇▇, et al. v. Equis Financial Group Limited Partnership, et al.,
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Case No. 98-8030, as approved by Order of the United States District Court for
the Southern District of Florida
by and among
AMERICAN INCOME PARTNERS V-D LIMITED PARTNERSHIP,
individually as Grantor
and
WILMINGTON TRUST COMPANY,
as the Trustee
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iv
B584550.1
TABLE OF CONTENTS
ARTICLE I: NAME AND DEFINITIONS 2
1.1 Name 2
1.2 Certain Terms Defined 2
ARTICLE II: NATURE OF TRANSFER 3
2.1 Purpose of Trust 3
2.2 Prohibited Activities 4
2.3 No Reversion to the Partnerships 5
2.4 Payment of Liabilities 5
2.5 ▇▇▇▇ of Sale, Assignment, Acceptance and Assumption Agreement;
Instruments of Further Assurance 5
2.6 Incidents of Ownership 5
2.7 Notice to Unlocated Holders of Partnership ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇ ▇▇▇: BENEFICIARIES 5
3.1 Beneficial Interests 5
3.2 Rights of Beneficiaries 6
3.3 No Transfer of Interests of Beneficiaries 7
3.4 Trustee as Beneficiary 7
ARTICLE IV: DURATION AND TERMINATION OF TRUST 7
4.1 Duration 7
4.2 Other Obligations of the Trustee upon Termination 7
ARTICLE V: ADMINISTRATION OF TRUST ASSETS 8
5.1 Sale of Trust Assets 8
5.2 Transactions with Related Persons 8
5.3 Payment of Claims, Expenses and Liabilities 8
5.4 Interim Distributions 8
5.5 Final Distribution 8
5.6 Reports to Beneficiaries and Others 9
5.7 Federal Income Tax Information 9
5.8 Employment of Manager 9
ARTICLE VI: POWERS OF AND LIMITATIONS ON THE TRUSTEES 9
6.1 Limitations on Trustee 9
6.2 Specific Powers of the Trustee 9
ARTICLE VII: CONCERNING THE TRUSTEES, EMPLOYEES AND AGENTS 9
7.1 Generally 9
7.2 Reliance by Trustee 9
7.3 Limitation on Liability to Third Persons 9
7.4 Recitals 9
7.5 Indemnification 9
7.6 Rights of Trustees, Employees, Independent Contractors and Agents to Own
Trust Units or Other Property and to Engage in Other Business 9
7.7 Contribution Back 9
ARTICLE VIII: PROTECTION OF PERSONS DEALING WITH THE TRUSTEE 9
8.1 Action by Trustee 9
8.2 Reliance on Statements by the Trustee 9
ARTICLE IX: COMPENSATION OF TRUSTEE 9
9.1 Amount of Compensation 9
9.2 Dates of Payment 9
9.3 Expenses 9
ARTICLE X: THE TRUSTEE AND SUCCESSOR TRUSTEE 9
10.1 Number and Qualification of Trustees 9
10.2 Resignation and Removal 9
10.3 Appointment of Successor 9
10.4 Acceptance of Appointment by Successor Trustee 9
10.5 Bonds 9
ARTICLE XI: CONCERNING THE BENEFICIARIES 9
11.1 Evidence of Action by Beneficiaries 9
11.2 Limitation on Suits by Beneficiaries 9
11.3 Requirement of Undertaking 9
ARTICLE XII: MEETING OF BENEFICIARIES 9
12.1 Purpose of Meetings 9
12.2 Meeting Called by Trustee 9
12.3 Meeting Called on Request of Beneficiaries 9
12.4 Persons Entitled to Vote at Meeting of Beneficiaries 9
12.5 Quorum 9
12.6 Adjournment of Meeting 9
12.7 Conduct of Meetings 9
12.8 Record of Meeting 9
ARTICLE XIII: AMENDMENTS 9
13.1 Consent of Beneficiaries 9
13.2 Notice and Effect of Amendment 9
13.3 Trustee's Declining to Execute Documents 9
ARTICLE XIV: MISCELLANEOUS PROVISIONS 9
14.1 Filing Documents 9
14.2 Intention of Parties to Establish Trust 9
14.3 Beneficiaries Have No Rights or Privileges as Holders of Partnership
Units 9
14.4 Laws as to Construction 9
14.5 Severability 9
14.6 Notices 9
14.7 Counterparts. 9
25
B584550.1
LIQUIDATING TRUST AGREEMENT
This LIQUIDATING TRUST AGREEMENT (this "Agreement"), dated as of July 18,
2002 (the "Effective Date"), by and among American Income Partners V-D Limited
Partnership (the "Partnership") and WILMINGTON TRUST COMPANY, a Delaware banking
corporation as Trustee (the "Trustee").
WHEREAS, the Partnership is a nominal defendant, with ten affiliated
limited partnerships (the "Affiliated Partnerships"; together with the
Partnership, the "Partnerships") in an action filed on January 15, 1998 in the
United States District Court for the Southern District of Florida (the "Court")
entitled ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, et al. v. Equis Financial Group Limited Partnership,
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et al.; and
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WHEREAS, AFG Leasing IV Incorporated, General Partner (the "General
Partner" and, together with the General Partners of the Affiliated Partnerships,
the "General Partners") and the other Defendants (as defined therein) have
agreed with the Plaintiffs in such action to settle the claims made in such
action pursuant to the terms of that certain Revised Stipulation of Settlement
dated as of January 29, 2002 (the "Settlement Agreement"), a copy of which is
attached hereto as Exhibit A; and
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WHEREAS, the terms of the settlement set forth in the Settlement Agreement
have been approved by the Court, pursuant to a Final Judgment and Order dated
June 12, 2002 (the "Order"); and
WHEREAS, the terms of the Settlement Agreement provide that each of the
Partnerships dissolve and begin liquidating their assets on or before the date
that is thirty (30) days following the date on which the Order becomes final,
binding and non-appealable; and
WHEREAS, upon dissolution, the General Partners (or their successors) (i)
shall cause the cancellation of each Partnership's Certificate of Limited
Partnership, (ii) shall apply and distribute all cash and proceeds in accordance
with the provisions set forth in each Partnership's limited partnership
agreement, and, after reserving cash amounts for any contingent or existing
sales, use and property tax or other types of liabilities that are reasonably
estimated for each Partnership (the "Cash Reserves"), which such reserves shall
be maintained in a separate account for each of the Partnerships (the "Cash
Reserve Accounts") held by the Trustee in the respective Partnership's
liquidating trust (as defined below) to be utilized to satisfy such contingent
liabilities with the residue distributed to the Beneficiaries as directed by the
General Partner of such Partnerships (or their successors) and (iii) liquidate
the assets of the Partnerships; and
WHEREAS, pursuant to the terms of the Settlement Agreement, all cash
including the Cash Reserves and all right, title and interest in and to all
other assets of each of the Partnerships that could not be sold for cash prior
to the dissolution of such Partnership (the "Retained Assets") shall be placed
in a separate liquidating trust, each identified individually by each
Partnership's name as a prefix to "Liquidating Trust," for the benefit of the
Beneficiaries (as hereinafter defined), with an independent,
nationally-recognized financial institution as its trustee; and
WHEREAS, the General Partner, on behalf of the Partnership, wishes to
engage the Trustee as the trustee of the American Income Partners V-D Limited
Partnership Liquidating Trust (referred to hereafter as the "Trust"), and the
Trustee wishes to accept such engagement, each on the terms set forth in and in
accordance with this Agreement;
NOW, THEREFORE, for good and valuable consideration, the Partnership hereby
agrees to grant, release, assign, convey and deliver unto the Trustee for the
benefit of the Beneficiaries (as hereinafter defined), all of the right, title
and interest of the Partnership in and to the Retained Assets for the uses and
purposes stated herein on the Effective Date, subject to the terms and
provisions set out below, and the Trustee hereby agrees to accept such Retained
Assets and such Trust, subject to the following terms and provisions:
ARTICLE I
NAME AND DEFINITIONSARTICLE INAME AND DEFINITIONS
1.1 Name1.1 Name. This Trust shall be known as the American Income
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Partners V-D Limited Partnership Liquidating Trust.
1.2 Certain Terms Defined1.2 Certain Terms Defined. For all
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purposes of this instrument, unless the context otherwise requires:
(a) "AFFILIATED PERSON" shall mean a Person (i) who in his individual
capacity is a director, trustee, officer, partner or employee of the Manager or
of a Person who controls, is controlled by or is under common control with the
Manager or (ii) who controls, is controlled by or is under common control with
the Manager.
(b) "AGREEMENT" shall mean this instrument as originally executed or as
it may from time to time be amended pursuant to the terms hereof.
(c) "BENEFICIAL INTEREST" shall mean each Beneficiary's proportionate share
of the Trust Assets in the Trust determined by the ratio of the number of
Partnership Units held by the Initial Beneficiary on the close of business on
the Record Date in the Partnership over the total number of Partnership Units
existing on such Record Date in the Partnership and thereafter each
Beneficiary's proportional beneficial interest in the Partnership's Trust
represented by Trust Units.
(d) "BENEFICIARIES" shall mean the holders from time to time on or after the
Record Date, including the Initial Beneficiaries and the Subsequent
Beneficiaries.
(e) "INITIAL BENEFICIARIES" shall mean the initial holders of Trust Units.
(f) "LIQUIDATING TRUST" shall mean the liquidating trust maintained by the
Trustee holding the Trust Assets of the Partnership, identified as the "American
Income Partners V-D Limited Partnership Liquidating Trust"; also referred to
herein as the "Trust."
(g) "MANAGER" shall mean such Person or Persons who have been employed by,
or who have contracted with, the Trustee to assist in the management of the
Trust.
(h) "PARTNERSHIP UNITS" shall mean the limited partnership units in the
Partnership held by each of the Beneficiaries as of the Record Date.
(i) "PERSON" shall mean an individual, a corporation, a partnership, an
association, a joint stock company, a limited liability company, a trust, a
joint venture, any unincorporated organization, or a government or political
subdivision thereof.
(j) "RECORD DATE" shall mean the date selected by the Grantors for
determination of the holders of Partnership Units entitled to become
Beneficiaries.
(k) "SUBSEQUENT BENEFICIARIES" shall mean Beneficiaries as reflected on the
books and records of the Trust from time to time after the Effective Date, other
than the Initial Beneficiaries.
(l) "TRUST" shall mean the Trust created by this Agreement; "TRUSTS" shall
mean this Trust and the other Trusts established by similar Liquidating Trust
Agreements of even date herewith.
(m) "TRUST ASSETS" shall mean all the property held from time to time by the
Trustee under this Agreement, which initially shall consist of the Retained
Assets of the Partnership granted, assigned and conveyed to the Trustee by the
Partnership pursuant to the Order, the Cash Reserves, and, in addition, shall
thereafter include all proceeds and other receipts of, from, or attributable to
any assets, causes of actions or claims held by the Trust.
(n) "TRUST UNITS" shall mean those equal, undivided portions into which the
Beneficial Interests in the Partnership's Trust Assets are divided, as evidenced
on the books and records of the Trust.
(o) "TRUSTEE" shall mean the original Trustee under this Agreement and
its successor(s), if any.
ARTICLE II
NATURE OF TRANSFERARTICLE IINATURE OF TRANSFER
2.1 Purpose of Trust2.1 Purpose of Trust.
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(a) The Settlement Agreement, which was approved by the Court pursuant
to the Order, permits the establishment of the Trust. It is expected that the
Partnerships shall liquidate and dissolve prior to fully winding up their
affairs, including, but not limited to, the sale of their remaining assets, the
collection of any receivables and the payment of any unsatisfied debts, claims,
liabilities, commitments, suits and other obligations, whether contingent or
fixed or otherwise (the "Liabilities"), except for such Liabilities for which
the Partnerships have previously reserved by the retention of the Cash Reserves
as described in the recitals hereto. The Trust hereby is organized for the sole
purpose of winding up the affairs of the Partnership as promptly as reasonably
possible and with no objective to continue or engage in the conduct of a trade
or business.
(b) The Partnership's Cash Reserves and Retained Assets to be granted,
assigned and conveyed to the Trustee as of the Effective Date will be held in
the Trust, and the Trustee will: (i) further liquidate the Partnership's Trust
Assets as it deems to be necessary to carry out the purpose of the Trust and
facilitate distribution of the Trust Assets; (ii) protect, conserve and manage
the Partnership's Trust Assets in accordance with the terms and conditions
hereof; and (iii) distribute the Partnership's Trust Assets in accordance with
the terms and conditions hereof.
(c) It is intended that the granting, assignment and conveyance of the
Cash Reserves and the Retained Assets by the Partnership to the Trustee pursuant
hereto shall be treated for federal and state income tax purposes as if the
Partnerships made such distributions directly to the holders of Partnership
Units. It is further intended that for federal, state and local income tax
purposes the Trust shall be treated as a liquidating trust under Treasury
Regulation Section 301.7701-4(d) and any analogous provision of state or local
law, and the Beneficiaries shall be treated as the owners of their respective
share of the Trust pursuant to Sections 671 through 679 of the Code and any
analogous provision of state or local law and shall be taxed on their respective
share of the Trust's taxable income (including both ordinary income and capital
gains) pursuant to Section 671 of the Code and any analogous provision of state
or local law. The Trustee shall file all tax returns required to be filed with
any governmental agency consistent with this position, including, but not
limited to, any returns required of grantor trusts pursuant to Section
1.671-4(a) of the Income Tax Regulations. The Partnership agrees that the
Transfer Agent acting on its behalf may prepare and file applicable K-1's
respecting the Beneficiaries' Partnership income. To the extent that the
Trustee becomes liable for the payment of taxes, including withholding taxes, in
respect of income derived from the investment of funds held hereunder or any
payment made hereunder (collectively, the "Taxes"), the Trustee may pay such
Taxes. The Trustee may withhold from any payment of the Liquidating Trust
Assets such amount as the Trustee estimates to be sufficient to provide for the
payment of such Taxes not yet paid, and may use the sum withheld for that
purpose. The Trustee shall be indemnified and held harmless against any
liability for Taxes and for any penalties or interest in respect of Taxes on
such investment income or payments in the manner provided herein.
2.2 Prohibited Activities2.2 Prohibited Activities. Except as
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provided herein and in a certain Escrow Agreement dated April 1, 2002, the Trust
shall not continue or engage in the conduct of any trade or business, and the
Trustee is expressly prohibited from, and shall have no power or authority to,
continue or engage in the conduct of any trade or business on behalf of the
Trust or the Beneficiaries, and all of the terms and conditions hereof shall be
construed accordingly.
2.3 No Reversion to the Partnerships2.3 No Reversion to the
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Partnerships. In no event shall any part of the Trust Assets revert to or be
distributed to the Partnership.
2.4 Payment of Liabilities2.4 Payment of Liabilities. To the
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extent that there are available Trust Assets in the Trust, the Trust hereby
agrees to assume all Liabilities of the Partnership on the Effective Date.
Should any Liability be asserted against the Trust as the transferee of the
Partnership's Trust Assets or as a result of the assumption made in this
paragraph, the Trustee may use such part of the Partnership's Trust Assets as
may be necessary in contesting any such Liability or in payment thereof. In no
event shall the Trustee, Beneficiaries or employees or agents of the Trust be
personally liable, nor shall resort be had to the private property of such
Persons or to any other Partnership's Trust Assets, in the event the
Partnership's Trust Assets are not sufficient to satisfy the Liabilities
asserted against or payable out of such Partnership's available Trust Assets in
the Trust.
2.5 ▇▇▇▇ of Sale, Assignment, Acceptance and Assumption Agreement;
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Instruments of Further Assurance2.5 ▇▇▇▇ of Sale, Assignment, Acceptance and
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Assumption Agreement; Instruments of Further Assurance. On the Effective Date,
the Partnerships and the Trust shall execute a ▇▇▇▇ of Sale, Assignment,
Acceptance and Assumption Agreement conveying the Retained Assets, Cash Reserves
and Liabilities to the Trust, a form of which is attached as Exhibit B hereto.
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After the dissolution of the Partnership, such Persons as shall have the right
and power to so act, will, upon reasonable request of the Trustee, execute,
acknowledge, and deliver such further instruments and do such further acts as
may be necessary or proper to carry out effectively the purposes of this
Agreement, to confirm or effectuate the transfer to the Trustee of any property
intended to be covered hereby, and to vest in the Trustee, their successors and
assigns, the estate, powers, instruments or funds in trust hereunder.
2.6 Incidents of Ownership2.6 Incidents of Ownership. The holders
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of Partnership Units as of the Record Date shall be the Initial Beneficiaries of
the Trust as holders of Trust Units in the Partnership's Trust, and the Trustee
shall retain only such incidents of legal ownership as are necessary to
undertake the actions and transactions authorized herein.
2.7 Notice to Unlocated Holders of Partnership Units2.7 Notice to
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Unlocated Holders of Partnership Units. If the Trust holds Trust Assets for
unlocated holders of any Partnership Units, due notice shall be given to such
holders of Partnership Units in accordance with Delaware law.
ARTICLE III
BENEFICIARIESARTICLE IIIBENEFICIARIES547
3.1 Beneficial Interests3.1 Beneficial Interests.
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(a) The Beneficial Interest of each Initial Beneficiary hereof shall be
determined by the Partnership in accordance with a certified copy of the
Partnership's list of Partnership Unit holders as of the Record Date (the
"List"). The Partnership will deliver the certified copy of the List to the
Trustee within a reasonable time after the Record Date specifying the Beneficial
Interests of each Initial Beneficiary in such Partnership. For ease of
administration, the List shall express the Beneficial Interest of each Initial
Beneficiary in terms of units and it is intended that each unit shall represent
one Trust Unit in the Partnership's Trust.
(b) In the case of the Partnership Unit holders, customary
institutional book-entry or other records or any other evidence of ownership
satisfactory to the Trustee will be deemed to evidence the Beneficial Interest
in the Trust of each such Beneficiary.
(c) If any conflicting claims or demands are made or asserted with
respect to the ownership of any Trust Units, or if there should be any
disagreement between the transferees, assignees, heirs, representatives or
legatees succeeding to all or part of the interest of any Beneficiary resulting
in adverse claims or demands being made in connection with such Trust Units,
then, in any of such events, the Trustee shall be entitled, at its sole
election, to refuse to comply with any such conflicting claims or demands. In
so refusing, the Trustee may elect to make no payment or distribution with
respect to such Trust Units, or to make such payment to a court of competent
jurisdiction or an escrow agent, and in so doing the Trustee shall not be or
become liable to any of such parties for their failure or refusal to comply with
any of such conflicting claims or demands, nor shall the Trustee be liable for
interest on any funds which it may so withhold. The Trustee shall be entitled
to refrain and refuse to act until either (i) the rights of the adverse
claimants have been adjudicated by a final judgment of a court of competent
jurisdiction, (ii) all differences have been adjusted by valid written agreement
between all of such parties, and the Trustee shall have been furnished with an
executed counterpart of such agreement, or (iii) there is furnished to the
Trustee a surety bond or other security satisfactory to the Trustee, as it shall
deem appropriate, to fully indemnify it as between all conflicting claims or
demands.
3.2 Rights of Beneficiaries3.2 Rights of Beneficiaries. Each
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Beneficiary shall be entitled to participate in the rights and benefits due to a
Beneficiary hereunder according to his Beneficial Interest. Each Beneficiary
shall take and hold the same subject to all the terms and provisions of this
Agreement. The interest of the Beneficiary hereby is declared and shall be in
all respects personal property and upon the death of an individual Beneficiary,
his Beneficial Interest shall pass as personal property to his legal
representative and such death shall in no way terminate or affect the validity
of this Agreement, provided that the Trustee shall not be required to evidence a
book entry transfer of a deceased Beneficiary's Beneficial Interest to his legal
representative until the Trustee shall have received Letters Testamentary or
Letters of Administration and written notice of the death of the deceased
Beneficiary. A Beneficiary shall have no title to, right to, possession of,
management of, or control of, the Partnership's Trust Assets except as herein
expressly provided. No widower, widow, heir, or devisee of any person who may
be a Beneficiary shall have any right of dower, homestead, or inheritance, or of
partition, or of any other right, statutory or otherwise, in any property
forming a part of Trust Assets but the whole title to the Partnership's Trust
Assets shall be vested in the Trustee and the sole interest of the applicable
Beneficiaries shall be the rights and benefits given to such Persons under this
Agreement.
3.3 No Transfer of Interests of Beneficiaries3.3 No Transfer of
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Interests of Beneficiaries. The Beneficial Interest of a Beneficiary may not be
transferred by any Beneficiary in person or by a duly authorized agent or
attorney, or by the properly appointed legal representatives of the Beneficiary,
nor may a Beneficiary have authority or power to sell, assign, transfer,
encumber, or in any other manner dispose of his Beneficial Interest; provided,
however, that the Beneficial Interest shall be assignable or transferable by
will, intestate succession, or operation of law and, further provided, that the
executor or administrator of the estate of a Beneficiary may mortgage, pledge,
grant a security interest in, hypothecate or otherwise encumber, the Beneficial
Interest held by the estate of such Beneficiary if necessary in order to borrow
money to pay estate, succession or inheritance taxes or the expenses of
administering the estate of the Beneficiary, upon written notice to and upon
written consent of the Trustee.
Except as may be otherwise required by law, the Beneficial Interests of the
Beneficiaries hereunder shall not be subject to attachment, execution,
sequestration or any order of a court, nor shall such interests be subject to
the contracts, debts, obligations, engagements or liabilities of any
Beneficiary, but the interest of a Beneficiary shall be paid by the Trustee to
the Beneficiary free and clear of all assignments, attachments, anticipations,
levies, executions, decrees and sequestrations and shall become the property of
the Beneficiary only when actually received by such Beneficiary.
3.4 Trustee as Beneficiary3.4 Trustee as Beneficiary. The Trustee,
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either individually or in a representative or fiduciary capacity, may be a
Beneficiary to the same extent as if it were not a Trustee hereunder and shall
have all the rights of a Beneficiary, including, without limitation, the right
to vote and to receive distributions, to the same extent as if it was not the
Trustee hereunder.
ARTICLE IV
DURATION AND TERMINATION OF TRUSTARTICLE IV DURATION AND TERMINATION OF TRUST
4.1 Duration4.1 Duration. The existence of this Trust shall
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terminate upon the earliest of (i) a termination required by the applicable laws
of the State of Delaware, (ii) the termination due to the distribution of all
Trust Assets as provided in Section 5.5, or (iii) December 31, 2003; provided,
however, that the Trustee, in its discretion, may extend the existence of this
Trust to such later date as it may designate, if it determines that an extension
is reasonably necessary to pay or make provision for then known liabilities,
actual or contingent.
4.2 Other Obligations of the Trustee upon Termination4.2 Other
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Obligations of the Trustee upon Termination. Upon distribution of all the Trust
Assets, the Trustee shall provide for the retention of all necessary books,
records, lists of holders of Trust Units in the Trust, certificates and files
that shall have been delivered to or created by the Trustee for a period of ten
(10) years thereafter, at the Trustee's discretion, all of such records and
documents may be destroyed. Except as otherwise specifically provided herein,
upon the distribution of all Trust Assets in the Trust, the Trustee shall have
no further duties or obligations hereunder.
ARTICLE V
ADMINISTRATION OF TRUST ASSETSARTICLE V ADMINISTRATION OF TRUST ASSETS
5.1 Sale of Trust Assets5.1 Sale of Trust Assets. The Trustee is
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hereby authorized and directed, at such times as it may deem appropriate, to
transfer, assign, or otherwise dispose of all or any part of the Trust Assets in
the Trust as it deems appropriate at public auction or at private sale for cash,
securities or other property, or upon credit (either secured or unsecured as the
Trustee shall determine).
5.2 Transactions with Related Persons5.2 Transactions with Related
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Persons. Notwithstanding any other provisions of this Agreement, the Trustee
shall not knowingly, directly or indirectly, sell or otherwise transfer all or
any part of any Trust Assets to, or contract with, (i) itself or any other
Trustee or an employee or agent (acting in its or their individual capacities)
of this Trust, or (ii) any Person of which any Trustee, employee or agent of
this Trust is an affiliate by reason of being a trustee, director, officer,
partner or direct or indirect beneficial owner of 5% or more of the outstanding
capital stock, shares or other equity interest of such Persons.
5.3 Payment of Claims, Expenses and Liabilities5.3 Payment of
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Claims, Expenses and Liabilities. Provided the Trustee has been advised in
writing respecting such claims, expenses, charges, liabilities and obligations.
The Trustee shall pay from the Trust Assets in the Trust all claims, expenses,
charges, liabilities, and obligations of the Trust Assets in the Trust and all
Liabilities relating to the Trust Assets held in the Trust and obligations which
the Trustee specifically assumes and agrees to pay pursuant to this Agreement
and such transferee liabilities which the Trustee may be obligated to pay as
transferees of the Trust Assets in the Trust, including among the foregoing, and
without limiting the generality of the foregoing, interest, penalties, taxes,
assessments, and public charges of every kind and nature and the costs, charges,
and expenses connected with or growing out of the execution or administration of
this Trust and such other payments and disbursements as are provided in this
Agreement or which may be determined to be a proper charge against the Trust
Assets in the Trust by the Trustee.
5.4 Interim Distributions5.4 Interim Distributions. At such times
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as may be determined by it in its sole discretion, the Trustee shall distribute,
or cause to be distributed, to the Beneficiaries, in proportion to the number of
Trust Units held by each Beneficiary relating to the Trust, such cash or other
property comprising a portion of the Trust Assets in the Trust as the Trustee
may in its sole discretion determine may be distributed without detriment to the
conservation and protection of the Trust Assets in the Trust.
5.5 Final Distribution5.5 Final Distribution. If the Trustee
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determines that the Liabilities and all other claims, expenses, charges,
liabilities and obligations of the Trust have been paid or discharged, or if the
existence of the Trust shall terminate pursuant to Section 4.1, the Trustees
shall, as expeditiously as is consistent with the conservation and protection of
the Trust Assets, distribute the Trust Assets in the Trust to the Beneficiaries
in proportion to the number of Trust Units held by each Beneficiary in the Trust
based on the list submitted to the Trustee by the Partnership pursuant to
Section 3.1 above, as such list may be amended. The Trustee shall hold in the
Trust and thereafter make disposition of all liquidating distributions and other
payments due any Beneficiaries who have not been located, in accordance with
Delaware law, subject to applicable state laws regarding escheat and abandoned
property. It is understood that the Trustee and the Beneficiary's bank in any
funds transfer may rely solely upon any account numbers or similar identifying
number provided by the parties hereto to identify (i) the Beneficiary, (ii) the
Beneficiary's bank, or (iii) and intermediary bank. The Trustee may apply any
of the Trust Assets for any payment order it executes using any such identifying
number, even where its use may result in a person other than the Beneficiary
being paid, or the transfer of funds to a bank other than the Beneficiary's
bank, or an intermediary bank designated.
5.6 Reports to Beneficiaries and Others5.6 Reports to Beneficiaries
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and Others. As soon as practicable after the end of each taxable year of the
Trust and after termination of the Trust, the Trustee shall submit a written
report and account to the Beneficiaries showing (i) the assets and liabilities
of the Trust at the end of such taxable year or upon termination and the
receipts and disbursements of the Trustee for such taxable year or period,
certified by an independent certified public accountant, (ii) any changes in the
Trust Assets in the Trust which they have not previously reported, and (iii) any
action taken by the Trustee in the performance of its duties under this
Agreement which it has not previously reported and which, in its opinion,
materially affects the Trust Assets. The Trustee may submit similar reports for
such interim periods during the taxable year as it deems advisable or as may be
required by the Securities and Exchange Commission. The taxable year of the
Trust shall end on December 31 of each year unless the Trustee deems it
advisable to establish some other date as the date on which the taxable year of
the Trust shall end.
5.7 Federal Income Tax Information5.7 Federal Income Tax
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Information. As soon as practicable after the close of each taxable year, the
Trustee shall direct the Transfer Agent to mail to each Person who was a
Beneficiary at the close of the year, a statement showing on a Trust Unit basis
in the Trust the dates and amounts of all distributions made by the Trustee, if
any, income earned on assets held by the Trust, if any, such other information
as is reasonably available to the Trustee which the Trustee determines may be
helpful in determining the amount of gross income and expenses attributable to
the Trust that such Beneficiary should include in such Person's federal income
tax return for the preceding year and any other information as may be required
to be furnished under the tax laws. In addition, after receipt of a written
request in good faith, or in its discretion without such request or if required
by applicable law, the Transfer Agent (or if it cannot, the Trustee) shall
furnish to any Person who has been a Beneficiary at any time during the
preceding year a statement containing such further information as is reasonably
available to the Transfer Agent or Trustee, respectively, which shall be helpful
in determining the amount of taxable income which such Person should include in
such Person's federal income tax return.
5.8 Employment of Manager5.8 Employment of Manager.
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(a) The Trustee shall be responsible for the general policies of the
Trust and for the general supervision of the activities of the Trust conducted
by all agents, employees, advisors or managers of the Trust. However, the
Trustee is not and shall not be required personally to conduct the activities of
the Trust, and consistent with its ultimate responsibility as stated above, the
Trustee shall have the power to appoint, employ or contract with any Person or
Persons (including any corporation, partnership, or trust in which one or more
of them may be directors, officers, shareholders, partners or trustees) as the
Trustee may deem necessary or proper for the transaction of the activities of
the Trust, including, but not limited to, Equis Financial Group and its
affiliates. The Trustee may therefore employ or contract with such Person or
Persons (herein referred to as the "Manager") and may grant or delegate such
authority to the Manager as the Trustee may in its sole discretion deem
necessary or desirable to carry out the purpose of the Trust without regard to
whether such authority is normally granted or delegated by trustees.
The Trustee shall have the power to determine the terms and compensation of
the Manager or any other Person whom they may employ or with whom they may
contract. The Trustee may exercise broad discretion in allowing the Manager to
administer and regulate the operations of the Trust, to act as agent for the
Trust, to execute documents on behalf of the Trustee, and to make executive
decisions which conform to general policies and general principles previously
established by the Trustee.
(b) The Manager or other Persons shall not be required to administer
the Trust as its sole and exclusive function and may have other business
interests and may engage in other activities similar or in addition to those
relating to the Trust, including the rendering of advice or services of any kind
to investors or any other Persons and the management of other investments.
ARTICLE VI
POWERS OF AND LIMITATIONS ON THE TRUSTEESARTICLE VI POWERS OF AND LIMITATIONS ON
THE TRUSTEES
6.1 Limitations on Trustee6.1 Limitations on Trustee. Except as
------------------------
contemplated by this Agreement, the Trustee shall not at any time, on behalf of
the Trust or Beneficiaries, enter into or engage in any trade or business, and
no part of any Trust Assets shall be used or disposed of by the Trustee in
furtherance of any trade or business. Except as the Trustee reasonably believes
is consistent with and in furtherance of its obligations under this Agreement,
the Trustee shall be restricted to the holding, collection and sale of the Trust
Assets and the payment and distribution thereof for the purposes set forth in
this Agreement and to the conservation and protection of the Trust Assets and
the administration thereof in accordance with the provisions of this Agreement.
In no event shall the Trustee receive any property, make any distribution,
satisfy or discharge any claims, expenses, charges, liabilities and obligations
or otherwise take any action which is inconsistent with a complete liquidation
of the Partnerships within the meaning of the Internal Revenue Code of 1986, as
amended, Treasury Regulations promulgated thereunder, and rulings, decisions and
determinations of the Internal Revenue Service and courts of competent
jurisdiction, or take any action which would jeopardize the status of the Trust
as a "liquidating trust" for federal income tax purposes within the meaning of
Treasury Regulation Section 301.7701-4(d). This limitation shall apply
regardless of whether the conduct of any such trade or business is deemed by the
Trustee to be necessary or proper for the conservation and protection of the
Trust Assets. The Trustee shall not invest any of the cash held as Trust
Assets, except that the Trustee may invest in (i) direct obligations of the
United States of America or obligations of any agency or instrumentality thereof
which mature not later than one year from the date of acquisition thereof; (ii)
money market deposit accounts, checking accounts, savings accounts, or
certificates of deposit, commercial paper rated not less than A1P1, or other
time deposit accounts which mature not later than one year from the date of
acquisition thereof which are issued by a commercial bank, brokerage firm or
savings institution organized under the laws of the United States of America or
any state thereof including, the Wilmington Fund, an AAA rated money market fund
managed by ▇▇▇▇▇▇ Square, and an affiliate of the Trustee; or (iii) other
temporary investments not inconsistent with the Trust's status as a liquidating
trust for tax purposes (collectively, "Permitted Investments"). It is hereby
acknowledged that the Trustee shall not be required to maximize the investment
return on the Trust Assets during the term of this Liquidating Trust Agreement.
The Trustee shall be and hereby is relieved of all liability with respect to the
purchasing, holding or selling of Permitted Investments in accordance with the
terms hereof. The Trustee is not responsible for any losses to the Trust which
may occur, including, without limitation, by reason of bank failure or the
amount of the Trust exceeding the Federal Deposit Insurance Corporation limits.
6.2 Specific Powers of the Trustee6.2 Specific Powers of the
----------------------------------
Trustee. Subject to the provisions of Section 6.1, the Trustee shall have the
following specific powers in addition to any powers conferred upon them by any
other Section or provision of this Agreement or any statutory laws of the State
of Delaware; provided, however, that the enumeration of the following powers
shall not be considered in any way to limit or control the power of the Trustee
to act as specifically authorized by any other Section or provision of this
Agreement and to act in such a manner as the Trustee may deem necessary or
appropriate to conserve and protect any Trust Assets or to confer on the
Beneficiaries the benefits intended to be conferred upon them by this Agreement:
(a) To determine the nature and amount of the consideration to be
received with respect to the sale or other disposition of, or the grant of
interests in, any Trust Assets.
(b) To collect, liquidate or otherwise convert into cash, or such other
property as they deem appropriate, all property, assets and rights in any Trust
Assets, and to pay, discharge and satisfy all other claims, expenses, charges,
Liabilities, and obligations existing with respect to any Trust Assets, the
Trust or the Trustee.
(c) To elect, appoint, engage, retain or employ any Persons as agents,
representatives, employees, or independent contractors (including without
limitation real estate advisors, investment advisors, accountants, transfer
agents, custodians, attorneys-at-law, managers, appraisers, brokers, or
otherwise) in one or more capacities, and to pay compensation from the Trust
Assets for services in as many capacities as such Person may be so elected,
appointed, engaged, retained or employed, to prescribe the titles, powers and
duties, terms of service and other terms and conditions of the election,
appointment, engagement, retention or employment of such Persons and, except as
prohibited by law, to delegate any of the powers and duties of the Trustee to
any one or more Trustees, agents, representatives, employers, independent
contractors or other Persons.
(d) To retain and set aside such funds out of the Trust as the Trustee
shall deem necessary or expedient to pay, or provide for the payment of (i)
unpaid claims, expenses, charges, liabilities, and obligations of the Trust or
the Partnerships, except to the extent that liabilities for which the
Partnership has previously reserved Cash Reserves are satisfied with funds from
said Cash Reserves; (ii) contingencies; and (iii) the expenses of administering
the Trust Assets.
(e) To do and perform any and all acts necessary or appropriate for the
conservation and protection of the Trust Assets, including acts or things
necessary or appropriate to maintain Trust Assets held by the Trustee pending
sale or other disposition thereof or distribution thereof to the Beneficiaries.
(f) To hold legal title to property of the Trust in the name of the Trust,
or in the name of the Trustee, or of any other Person, without disclosure of the
interest of the Trust therein.
(g) To cause any investments of any part of the Trust Assets to be
registered and held in the name of any one or more of their names or in the
names of a nominee or nominees without increase or decrease of liability with
respect thereto.
(h) To institute or defend actions or declaratory judgments or other actions
and to take such other action, in the name of the Trust or the Partnership or as
otherwise required, as the Trustee may deem necessary or desirable to enforce
any instruments, contracts, agreements, causes of action, claims or rights
relating to or forming a part of the Trust Assets.
(i) To determine conclusively from time to time the value of and to revalue
the securities and other property of the Trust, in accordance with independent
appraisals or other information as they deem necessary or appropriate.
(j) To cancel, terminate, or amend any instruments, contracts, agreements,
obligations or causes of action relating to or forming a part of any Trust
Assets, and to execute new instruments, contracts, agreements, obligations or
causes of action notwithstanding that the terms of any such instruments,
contracts, agreements, obligations or causes of action may extend beyond the
terms of this Trust, provided that no such new instrument, contract, agreement,
obligation or cause of action shall permit the Trustee to engage in any activity
prohibited by Section 6.1.
(k) To vote by proxy or otherwise on behalf of the Beneficiaries and with
full power of substitution all shares of stock and all securities held by the
Trustee hereunder and to exercise every power, election, discretion, option and
subscription right and give every notice, make every demand, and to do every act
or thing in respect to any shares of stock or any securities held by the Trustee
which the Trustee might or could do if they were the absolute owners thereof.
(l) To undertake or join in any merger, plan of reorganization,
consolidation, liquidation, dissolution, readjustment or other transaction of
any corporation, any of whose shares of stock or other securities, obligations,
or properties may at any time constitute a part of any Trust Assets, and to
accept the substituted shares of stock, bonds, securities, obligations and
properties and to hold the same in trust in accordance with the provisions
hereof.
(m) In connection with the sale or other disposition or distribution of any
securities held by the Trustee, to comply with the applicable federal and state
securities laws, and to enter into agreements relating to sale or other
disposition or distribution thereof.
(n) To authorize transactions between corporations or other entities whose
securities, or other interests therein (either in the nature of debt or equity)
are held by the Trustee as part of any Trust Assets.
(o) To terminate and dissolve any entities owned by the Trust.
(p) To have a judicial settlement of their account of the Trust at any time
to the extent they determine necessary or advisable.
(q) To perform any act authorized, permitted, or required under any
instrument, contract, agreement, right, obligation or cause of action relating
to or forming a part of any Trust Assets whether in the nature of an approval,
consent, demand or notice thereunder or otherwise, unless such act would require
the consent of the Beneficiaries in accordance with the express provisions of
this Agreement.
ARTICLE VII
CONCERNING THE TRUSTEES,
BENEFICIARIES, EMPLOYEES AND AGENTSARTICLE VII CONCERNING THE TRUSTEES,
EMPLOYEES AND AGENTS
7.1 Generally7.1 Generally. The Trustee accepts and undertakes to
---------
discharge the Trust created by this Agreement, upon the terms and conditions
thereof on behalf of the Beneficiaries. The Trustee shall exercise such of the
rights and powers vested in it by this Agreement, and use the same degree of
care and skill in its exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs. No provision of this Agreement
shall be construed to relieve the Trustee from liability for its own willful
misconduct, knowingly and intentionally committed in bad faith, except that:
(a) No successor Trustee shall be in any way responsible for the acts
or omissions of the Trustee in office prior to the date on which he or it
becomes a Trustee.
(b) The Trustee shall not be liable for the performance of such duties and
obligations as are specifically set forth in this Agreement except for its bad
faith or willful misconduct, and no implied covenants or obligations shall be
read into this Agreement against the Trustee.
(c) The Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of this
Agreement.
(d) The Trustee shall not be liable for any act which the Trustee may
do or omit to do hereunder, or for any mistake of fact or law, or for any error
of judgment, or for the misconduct of any employee, agent, representative or
attorney appointed by it, or for anything that it may do or refrain from doing
in connection with this Liquidating Trust Agreement while acting in good faith;
unless caused by or arising from gross negligence, willful misconduct, fraud or
any other breach of fiduciary duty of the Trustee or any of its employees,
agents, representatives or attorneys.
(e) The duties and obligations of the Trustee shall be limited to and
determined solely by the express provisions of this Liquidating Trust Agreement
and no implied duties or obligations shall be read into this Liquidating Trust
Agreement against the Trustee. The Trustee is not bound by and is under no duty
to inquire into the terms or validity of any other agreements or documents,
including, but not limited to the Settlement Agreement and any agreements which
may be related to, referred to in or deposited with the Trustee in connection
with this Liquidating Trust Agreement.
7.2 Reliance by Trustee7.2 Reliance by Trustee. Except as
---------------------
otherwise provided in Section 7.1:
(a) The Trustee may rely and shall be protected in acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties.
(b) The Trustee may consult with legal counsel, auditors or other
experts to be selected by it, including firms with which the Trustee may be an
affiliate, and the advice or opinion of such counsel, accountants, auditors or
other experts shall be full and complete protection to the Trustee, the
employees and the agents of the Trustee in respect of any action taken or
omitted or suffered by them in good faith and in reliance on, or in accordance
with, such advice or opinion.
(c) Persons dealing with the Trustee shall look only to the Trust
Assets in the Trust to satisfy any liability relating to the Trust Assets in the
Trust incurred by the Trustee to such Person in carrying out the terms of this
Trust, and the Trustee shall have no obligation to satisfy any such liability.
If for any purposes hereunder such liability is properly allocated to two or
more Partnerships or Trusts, then such liability shall be satisfied from the
Trust Assets of the relevant Trust as directed by the General Partners of the
predecessor Partnerships in a manner consistent with the allocation practices
prior to the Partnerships' liquidations.
(d) As far as practicable and except as expressly permitted above, the
Trustee shall cause any written instrument creating an obligation of the Trust
to include a reference to this Agreement and to provide that neither the
Beneficiaries, the Trustee nor their agents shall be liable thereunder and that
the other parties to such instrument shall look solely to the Trust Assets held
in the Trust for the payment of any claim thereunder or the performance thereof;
provided, however, that the omission of such provision from any such instrument
shall not render the Beneficiaries, the Trustee, or their agents liable nor
shall the Trustee be liable to anyone for such omission.
7.3 Limitation on Liability to Third Persons7.3 Limitation on
---------------------------------------------
Liability to Third Persons. No Beneficiary shall be subject to any personal
liability whatsoever, in tort, contract or otherwise, to any Person in
connection with the Trust Assets or the affairs of this Trust; and neither the
Trustee nor any employee or agent of this Trust shall be subject to any personal
liability whatsoever, in tort, contract or otherwise, to any Person in
connection with any Trust Assets or the affairs of this Trust, except for such
Person's own willful misconduct, knowingly and intentionally committed in bad
faith; and all such other Persons shall look solely to any Trust Assets held in
such Person's Trust for satisfaction of claims of any nature arising in
connection with the affairs of this Trust. The Trustee shall, at all times,
maintain insurance for the protection of all Trust Assets, its Beneficiaries,
the Trustee and its employees and agents in such amount as the Trustee shall
deem adequate to cover all foreseeable liability to the extent available at
reasonable rates.
7.4 Recitals7.4 Recitals. Any written instrument creating an
--------
obligation of this Trust shall be conclusively taken to have been executed or
done by the Trustee, or the employee or agent of this Trust only in its capacity
as Trustee under this Agreement or in his capacity as employee or agent of the
Trust.
7.5 Indemnification7.5 Indemnification. Each of the Trustee and
---------------
each of its employees and agents (each an "Indemnified Person" and collectively,
the "Indemnified Persons") shall be indemnified out of all Trust Assets against
all liabilities and expenses, including amounts paid in satisfaction of
judgments, in compromise or as fines and penalties, and all costs and expenses,
including, but not limited to, reasonable counsel fees and disbursements paid or
incurred in investigating or defending against any such claim, demand, action,
suit or proceeding by the Indemnified Persons in connection with the defense or
disposition of any action, suit or other proceeding by the Trust or any other
Person, whether civil or criminal, in which the Indemnified Person may be
involved or with which the Indemnified Person may be threatened while in office
or thereafter, by reason of its or his being or having been such a Trustee,
employee or agent; provided, however, that the Indemnified Person shall not be
entitled to such indemnification in respect of any matter as to which the
Indemnified Person shall have been adjudicated to have acted in bad faith or
with willful misfeasance or in reckless disregard of the Indemnified Person's
duties. The rights accruing to any Indemnified Person under these provisions
shall not exclude any other right to which the Indemnified Person may be
lawfully entitled. The Trustee may make advance payments in connection with
indemnification under this Section, provided that the Indemnified Person shall
have given a written undertaking to repay any amount advanced to the Indemnified
Person and to reimburse the Trust in the event it is subsequently determined in
a final adjudication by a court of law that the Indemnified Person is not
entitled to such indemnification. The Trustee may purchase such insurance as it
believes, in the exercise of its discretion, adequately insures that each
Indemnified Person shall be indemnified against any such loss, liability or
damage pursuant to this Section. The rights accruing to any Indemnified Person
by reason of the foregoing shall not be deemed to exclude any other right to
which he may legally be entitled nor shall anything else contained herein
restrict the right of the Trustee to indemnify or reimburse such Indemnified
Person in any proper case even though not specifically provided for herein, nor
shall anything contained herein restrict the right of any such Indemnified
Person to contribution under applicable law. As security for the timely and
full payment and satisfaction of all of the present and future obligations of
the parties to the Trustee under this Agreement, including without limitation
the indemnity obligations hereunder, whether joint or several, the Trust (and by
accepting distributions hereunder, each Beneficiary) hereby grants to the
Trustee a continuing security interest in and to any and all of the Trust
Assets, whether now existing or hereafter acquired or created, together with the
products and proceeds thereof, all payments and other distributions with respect
thereto, and any and all investments, renewals, substitutions, modifications and
extensions of any and all of the foregoing. The Trustee shall have all of the
rights and remedies of a secured party under the Uniform Commercial Code. In
addition, in the event the Trustee has not received any payment, indemnity,
reimbursement or other amount due it under this Agreement, then, notwithstanding
any other term or provision of this Agreement, the Trustee may in its discretion
set off and apply any of the Trust Assets as is required to pay and satisfy
those obligations. Promptly after the receipt by the Trustee of notice of any
demand or claim or the commencement of any action, suit or proceeding, the
Trustee shall, if a claim in respect thereof is to be made against any of the
other parties hereto, notify such other parties thereof in writing; but the
failure by the Trustee to give such notice shall not relieve any party from any
liability which such party may have to the Trustee hereunder. Notwithstanding
any obligation to make payments and deliveries hereunder, the Trustee may retain
and hold for such time as it reasonably deems necessary such amount of the Trust
Assets as it shall from time to time in its sole discretion reasonably deem
sufficient to indemnify itself for any such loss or expense and for any amounts
due it hereunder. Except as required by law or as expressly provided herein,
the Trustee shall be under no duty to institute any suit, or to take any
remedial procedures under this Liquidating Trust Agreement, or to enter any
appearance or in any way defend any suit in which it may be made a defendant
hereunder until it shall be indemnified as provided above, except as expressly
set forth herein.
7.6 Rights of Trustees, Employees, Independent Contractors and Agents
-------------------------------------------------------------------
to Own Trust Units or Other Property and to Engage in Other Business7.6
----------------------------------------------------------------------------
Rights of Trustees, Employees, Independent Contractors and Agents to Own Trust
---
Units or Other Property and to Engage in Other Business. Any Trustee, employee,
independent contractor or agent may own, hold and dispose of Trust Units for its
or his individual account, and may exercise all rights thereof and thereunder to
the same extent and in the same manner as if he were not a Trustee, employee,
independent contractor or agent. Any Trustee, employee, independent contractor
or agent may, in his personal capacity or in a capacity of trustee, officer,
director, shareholder, partner, member, advisor, employee of any Person or
otherwise, have business interests and holdings similar to or in addition to
those relating to the Trust. Subject to the provisions of Article V hereof, any
Trustee, employee, independent contractor or agent of the Trust may be a
trustee, officer, director, shareholder, partner, member, advisor, employee or
independent contractor of, or otherwise have a direct or indirect interest in,
any Person who may be engaged to render advice or services to the Trust, and may
receive compensation from such Person as well as compensation as Trustee,
employee, independent contractor or agent or otherwise hereunder so long as such
interest is disclosed to the Trustee. None of these activities in and of
themselves shall be deemed to conflict with his duties as Trustee, employee,
independent contractor or agent.
7.7 Contribution Back7.7 Contribution Back. In the event any
------------------
amount of Trust Assets released to a party under this Liquidating Trust
Agreement is invalidated, declared to be fraudulent or preferential or must
otherwise be restored or returned by the Trustee in connection with the
insolvency, bankruptcy or reorganization of such party, whether by order of or
settlement before any court or other authority or otherwise, such party shall
contribute back to the Trustee an amount such that such party will be affected
by that invalidation, declaration, restoration or return ratably in proportion
to the distributions it received under this Agreement, together with any related
assignment, release or other instrument or document the Trustee may request to
restore the status quo ante.
ARTICLE VIII
PROTECTION OF PERSONS DEALING WITH THE TRUSTEEARTICLE VIII PROTECTION OF PERSONS
DEALING WITH THE TRUSTEE
8.1 Action by Trustee8.1 Action by Trustee. All action required or
-----------------
permitted to be taken by the Trustee, in its capacity as Trustee, shall be taken
by a written vote, resolution, or other writing signed by the Trustee then
serving.
8.2 Reliance on Statements by the Trustee8.2 Reliance on Statements
-------------------------------------
by the Trustee. Any Person dealing with the Trustee shall be fully protected in
relying upon the Trustee's certificate or instrument signed by the Trustee that
it has authority to take any action under this Trust.
ARTICLE IX
COMPENSATION OF TRUSTEEARTICLE IXCOMPENSATION OF TRUSTEE
9.1 Amount of Compensation9.1 Amount of Compensation. The
------------------------
compensation of Wilmington Trust Company in its capacity as the initial Trustee
shall be in accordance with the terms specified on Schedule A hereto or upon
-------- -
such other terms and conditions as may be agreed upon by the Trustee and the
Beneficiaries holding Trust Units representing at least a majority of the
aggregate Beneficial Interests in all of the Liquidating Trust Accounts.
Schedule A shall apply only to the initial Trustee and, in the event a successor
-- -
to the initial Trustee shall serve, such schedule shall be deleted from this
Agreement and neither such deletion nor the substitution of a counterpart
schedule applicable to the successor Trustee shall constitute an amendment of
this Agreement
9.2 Dates of Payment9.2 Dates of Payment. The compensation payable
----------------
to the Trustee pursuant to the provisions of Section 9.1 shall be in accordance
with Schedule A or, if Schedule A is no longer in force, at such other times as
-------- - -------- -
the Trustee may determine.
9.3 Expenses9.3 Expenses. The Trustee shall be reimbursed from the
--------
Trust Assets for all expenses reasonably incurred by it in the performance of
its duties in accordance with this Agreement including the reasonable
compensation and out-of-pocket expenses of attorneys, accountants, appraisers,
consultants and other persons retained by the Trustee or the Manager pursuant to
the terms of this Agreement.
ARTICLE X
THE TRUSTEE AND SUCCESSOR TRUSTEEARTICLE X THE TRUSTEE AND SUCCESSOR TRUSTEE
10.1 Number and Qualification of Trustees10.1 Number and
----------------------------------------
Qualification of Trustees. Subject to the provisions of Section 10.3 relating
to the period pending the appointment of a successor Trustee, there shall be one
Trustee of this Trust, which shall be a citizen and resident of or a corporation
which is incorporated under the laws of a state of the United States and, if a
corporation, it shall be authorized to act as a corporate fiduciary under the
laws of the State of Delaware. The number of Trustees may be increased or
decreased from time to time by the Trustee. There shall at all times be a
Trustee hereunder which shall be a bank or trust company organized and doing
business under the laws of the United States, or of any State of the United
States, which at the time of its appointment shall have total capital and
surplus of at least $50,000,000 and shall be authorized under such laws to
exercise corporate trust powers and be subject to supervision or examination by
federal or state authority
If any corporate Trustee shall ever change its name, or shall reorganize or
reincorporate, or shall merge with or into or consolidate with any other bank or
trust company, such corporate Trustee shall be deemed to be a continuing entity
and shall continue to act as a Trustee hereunder with the same liabilities,
duties, powers, titles, discretions and privileges as are herein specified for a
Trustee.
10.2 Resignation and Removal10.2 Resignation and Removal. Any
------------------------
Trustee may resign and be discharged from the Trust hereby created by giving
written notice thereof to any remaining Trustee or Trustees or by giving written
notice to the Beneficiaries holding Trust Units representing an aggregate of at
least a majority of the total Beneficial Interests in all of the Liquidating
Trust Accounts. Such resignation shall become effective on the day specified in
such notice or upon the appointment of such Trustee's successor and such
successor's acceptance of such appointment, whichever is earlier. Any Trustee
may be removed at any time, with or without cause, by Beneficiaries having an
aggregate Beneficial Interest of at least a majority of the total Beneficial
Interests in the Trust. All obligations of the Trustee hereunder shall cease
and terminate on the effective date of its resignation and its sole
responsibility thereafter shall be to hold the Trust Assets for a period of
thirty (30) calendar days following the effective date of resignation, at which
time, if a successor Trustee shall have been appointed and have accepted such
appointment in a writing to both the Beneficiaries, then upon written notice
thereof given by a representative of the Beneficiaries to the resigning Trustee,
the resigning Trustee shall deliver the Trust Assets to the successor Trustee.
If a successor Trustee shall not have been appointed within a thirty (30) day
period from the predecessor Trustee's resignation, for any reason whatsoever,
the resigning Trustee shall deliver the Trust Assets to a court of competent
jurisdiction in the county in which the Trust Assets are there being held and
give written notice of the same to the parties hereto.
The resigning Trustee shall be entitled to payment of any unpaid fees
(which shall be pro-rated as of the effective date of the resignation) and
expenses and to reimbursement by the Beneficiaries for any expenses incurred in
connection with the transfer of the Trust Assets pursuant to and in accordance
with the provisions of this section.
10.3 Appointment of Successor10.3 Appointment of Successor. Should
------------------------
at any time a Trustee resign or be removed, die, become mentally incompetent or
incapable of action (as determined by the Beneficiaries holding Trust Units
representing an aggregate of at least a majority of the total Beneficial
Interests in the Trust), or be adjudged bankrupt or insolvent, unless any
remaining Trustees shall decrease the number of Trustees of the Trust pursuant
to Section 10.1 hereof, a vacancy shall be deemed to exist and a successor shall
be appointed by any remaining Trustees. If such a vacancy is not filled by any
remaining Trustees within ninety (90) days, the remaining Trustees must notify
the Beneficiaries of their inability to fill such vacancy, and the Beneficiaries
may, pursuant to Article XII hereof, call a meeting to appoint a successor
Trustee by Beneficiaries holding Trust Units representing an aggregate of at
least a majority of the total Beneficial Interests in the Trust. Pending the
appointment of a successor Trustee, the remaining Trustee or Trustees then
serving may take any action in the manner set forth in Section 8.1.
10.4 Acceptance of Appointment by Successor Trustee10.4 Acceptance
-----------------------------------------------
of Appointment by Successor Trustee. Any successor Trustee appointed hereunder
shall execute an instrument accepting such appointment hereunder and shall
deliver one counterpart thereof to each of the other Trustees and, in case of a
resignation, to the retiring Trustee. Thereupon such successor Trustee shall,
without any further act, become vested with all the estates, properties, rights,
powers, trusts and duties of his or its predecessor in the Trust hereunder with
like effect as if originally named therein; but the retiring Trustee shall
nevertheless, when requested in writing by the successor Trustee or by the
remaining Trustees, execute and deliver an instrument or instruments conveying
and transferring to such successor Trustee upon the trust herein expressed, all
the estates, properties, rights, powers and trusts of such retiring Trustee, and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by him hereunder.
10.5 Bonds10.5 Bonds. No bond shall be required of the original
-----
Trustee hereunder, and no bond shall be required of any successor Trustee
hereunder. If a bond is required by law, no surety or security with respect to
such bond shall be required unless required by law.
ARTICLE XI
CONCERNING THE BENEFICIARIESARTICLE XICONCERNING THE BENEFICIARIES
11.1 Evidence of Action by Beneficiaries11.1 Evidence of Action by
------------------------------------
Beneficiaries. Whenever in this Agreement it is provided that the Beneficiaries
may take any action (including the making of any demand or request, the giving
of any notice, consent, or waiver, the removal of a Trustee, the appointment of
a successor Trustee, or the taking of any other action), the fact that at the
time of taking any such action such Beneficiaries have joined therein may be
evidenced (i) by any instrument or any number of instruments of similar tenor
executed by Beneficiaries in person or by agent or attorney appointed in
writing, or (ii) by the record of the Beneficiaries voting in favor thereof at
any meeting of Beneficiaries duly called and held in accordance with the
provisions of Article XII.
11.2 Limitation on Suits by Beneficiaries11.2 Limitation on Suits
--------------------------------------
by Beneficiaries. No Beneficiary shall have any right by virtue of any
provision of this Agreement to institute any action or proceeding at law or in
equity against any party other than the Trustees upon or under or with respect
to any Trust Assets or the agreements relating to or forming part of any Trust
Assets, and the Beneficiaries do hereby waive any such right.
11.3 Requirement of Undertaking11.3 Requirement of Undertaking.
----------------------------
The 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 Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and such court may in its discretion
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; provided, however, that the
provisions of this Section shall not apply to any suit by the Trustee.
ARTICLE XII
MEETING OF BENEFICIARIESARTICLE XIIMEETING OF BENEFICIARIES
12.1 Purpose of Meetings12.1 Purpose of Meetings. A meeting of the
-------------------
Beneficiaries may be called at any time and from time to time pursuant to the
provisions of this Article for the purposes of taking any action which the terms
of this Agreement permit a Beneficiary having a specified aggregate Beneficial
Interest to take either acting alone or with the Trustees.
12.2 Meeting Called by Trustee12.2 Meeting Called by Trustee. The
--------------------------
Trustee may at any time call a meeting of the Beneficiaries of the Trust to be
held at such time and at such place within the State of Delaware (or elsewhere
if so determined by a majority of the Trustees) as the Trustee shall determine.
Written notice of every meeting of the Beneficiaries shall be given by the
Trustee (except as provided in Section 12.3), which written notice will set
forth the time and place of such meeting and in general terms the action
proposed to be taken at such meeting, and shall be mailed not more than sixty
(60) nor less than ten (10) days before such meeting is to be held to all of the
Beneficiaries of record not more than sixty (60) days before the date of such
meeting. The notice shall be directed to the Beneficiaries at their respective
addresses as they appear in the records of the Trust.
12.3 Meeting Called on Request of Beneficiaries12.3 Meeting Called
-------------------------------------------
on Request of Beneficiaries. Within thirty (30) days after written request to
the Trustee by Beneficiaries holding Trust Units representing at least a
majority of the aggregate Beneficial Interests in the Trust to call a meeting of
all of the Beneficiaries of the Trust, which written request shall specify in
reasonable detail the action proposed to be taken, the Trustee shall proceed
under the provisions of Section 12.2 to call a meeting of the Beneficiaries, and
if the Trustee fails to call such meeting within such thirty (30) day period
then such meeting may be called by Beneficiaries holding Trust Units
representing at least a majority of the aggregate Beneficial Interests in the
Trust.
12.4 Persons Entitled to Vote at Meeting of Beneficiaries12.4
----------------------------------------------------------
Persons Entitled to Vote at Meeting of Beneficiaries. Each Beneficiary shall be
entitled to vote at a meeting of the Beneficiaries of the Trust either in person
or by his proxy duly authorized in writing. The vote of each Beneficiary shall
be weighted based on the number of Trust Units in the Trust held by each
Beneficiary determined pursuant to the list described in Section 3.1, as such
list is amended hereby. The signature of the Beneficiary on such written
authorization need not be witnessed or notarized.
12.5 Quorum12.5 Quorum. At any meeting of Beneficiaries of a
------
Liquidating Trust Account, the presence of Beneficiaries holding Trust Units
representing at least a majority of the aggregate Beneficial Interests in the
Trust sufficient to take action on any matter for the transaction of which such
meeting was called shall be necessary to constitute a quorum; but if less than a
quorum be present, Beneficiaries having aggregate Beneficial Interests of more
than 50% of the total Beneficial Interests in the Trust of all Beneficiaries
represented at the meeting may adjourn such meeting with the same effect and for
all intents and purposes as though a quorum had been present.
12.6 Adjournment of Meeting12.6 Adjournment of Meeting. Subject to
----------------------
Section 12.5 hereof, any meeting of Beneficiaries of the Trust may be adjourned
from time to time and a meeting may be held at such adjourned time and place
without further notice.
12.7 Conduct of Meetings12.7 Conduct of Meetings. The Trustee
---------------------
shall appoint the Chairman and the Secretary of the meeting. The vote upon any
resolution submitted to any meeting of Beneficiaries shall be by written ballot.
An Inspector of Votes, appointed by the Chairman of the meeting, shall count all
votes cast at the meeting for or against any resolution and shall make and file
with the Secretary of the meeting their verified written report.
12.8 Record of Meeting12.8 Record of Meeting. A record of the
-------------------
proceedings of each meeting of Beneficiaries of the Trust shall be prepared by
the Secretary of the meeting. The record shall be signed and verified by the
Secretary of the meeting and shall be delivered to the Trustee to be preserved
by it. Any record so signed and verified shall be conclusive evidence of all
the matters therein stated.
ARTICLE XIII
AMENDMENTSARTICLE XIIIAMENDMENTS01
13.1 Consent of Beneficiaries13.1 Consent of Beneficiaries. At the
------------------------
direction or with the consent of Beneficiaries holding Trust Units representing
at least a majority of the aggregate Beneficial Interests in the Trust, or such
greater percentage as shall be specified in this Agreement for the taking of an
action by the Beneficiaries under the affected provision of this Agreement, the
Trustee shall promptly make and execute a declaration amending this Agreement
for the purpose of adding any material provisions to or changing in any material
manner or eliminating any of the material provisions of this Agreement or
amendments thereto as they apply to the Trust; provided, however, that no such
amendment shall permit the Trustee to engage in any activity prohibited by
Section 6.1 hereof or affect the Beneficiaries' rights to receive their pro rata
shares of the Trust Assets in the Trust at the time of distribution; provided
further, however, that no consent of the Beneficiaries shall be required with
respect to any amendment made solely for the purpose of facilitating the
transferability by Beneficiaries of Trust Units or to comply with applicable
laws, including tax laws, so long as such amendment has been approved by the
Trustee.
13.2 Notice and Effect of Amendment13.2 Notice and Effect of
----------------------------------
Amendment. Promptly after the execution by the Trustee of any such declaration
of amendment, the Trustee shall give notice of the substance of such amendment
to the Beneficiaries of the Trust or, in lieu thereof, the Trustee may send a
copy of the amendment to each Beneficiary. Upon the execution of any such
declaration of amendment by the Trustee, this Agreement shall be deemed to be
modified and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties, and immunities of the Trustee and
the Beneficiaries under this Agreement with respect to the Trust shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modification and amendments, and all the terms and conditions
of any such amendment shall be thereby deemed to be part of the terms and
conditions of this Agreement for any and all purposes.
13.3 Trustee's Declining to Execute Documents13.3 Trustee's Declining to
----------------------------------------
Execute Documents. If, in the reasonable opinion of the Trustee, any
document required to be executed pursuant to the terms of Section 13.2 hereof
adversely affects any right, obligation, immunity or indemnity in favor of the
Trustee under this Agreement, the Trustee may in its discretion decline to
execute such document.
ARTICLE XIV
MISCELLANEOUS PROVISIONSARTICLE XIVMISCELLANEOUS PROVISIONS
14.1 Filing Documents14.1 Filing Documents. This Agreement shall
-----------------
be filed or recorded in such office or offices as the Trustee may determine to
be necessary or desirable. A copy of this Agreement and all amendments thereof
shall be maintained in the office of the Trustee and shall be available at all
times during regular business hours for inspection by any Beneficiary or his
duly authorized representative. The Trustee shall file or record any amendment
of this Agreement in the same places where the original Agreement is filed or
recorded. The Trustee shall file or record any instrument which relates to any
change in the office of the Trustee in the same places where the original
Agreement is filed or recorded.
14.2 Intention of Parties to Establish Trust14.2 Intention of
--------------------------------------------
Parties to Establish Trust. This Agreement is not intended to create and shall
not be interpreted as creating a corporation, association, partnership, or joint
venture of any kind for purposes of federal income taxation or for any other
purpose.
14.3 Beneficiaries Have No Rights or Privileges as Holders of
----------------------------------------------------------------
Partnership Units14.3 Beneficiaries Have No Rights or Privileges as Holders
---------
of Partnership Units. Except as expressly provided in this Agreement or under
applicable law, the Beneficiaries shall have no rights or privileges
attributable to their former status as holders of Partnership Units.
14.4 Laws as to Construction14.4 Laws as to Construction. The
--------------------------
Trustee, and the Beneficiaries (by their acceptance of any distributions made to
them pursuant to this Agreement), consent and agree that this Liquidating Trust
Agreement shall be governed by, and construed in accordance with, the internal
laws of the State of Delaware, without reference to the choice of law principles
thereof. Each of the parties hereto irrevocably submits to the exclusive
jurisdiction of the courts of the state of New York and the United States
District Court for any District within such state for the purpose of any suit,
action, proceeding or judgment relating to or arising out of this Liquidating
Trust Agreement and the transactions contemplated hereby. Service of process in
connection with any such suit, action or proceeding may be served on each party
hereto anywhere in the world by the same methods as are specified for the giving
of notices under this Liquidating Trust Agreement. Each of the parties hereto
irrevocably consents to the jurisdiction of any such court in any such suit,
action or proceeding and to the laying of venue in such court. Each party
hereto irrevocably waives any objection to the laying of venue of any such suit,
action or proceeding brought in such courts and irrevocably waives any claim
that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum. Each of the parties hereto agrees that a
final judgment in any action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. All parties waive the right to a jury trial of all such
disputes, claims and demands.
14.5 Severability14.5 Severability. In the event any provision of
------------
this Agreement or the application thereof to any Person or circumstances shall
be finally determined by a court of proper jurisdiction to be invalid or
unenforceable to any extent, the remainder of this Agreement, or the application
of such provision to persons or circumstances other than those as to which it is
held invalid or unenforceable, shall not be affected thereby, and each provision
of this Agreement shall be valid and enforced to the fullest extent permitted by
law.
14.6 Notices14.6 Notices. Any notice or other communication by the
-------
Trustee to any Beneficiary shall be deemed to have been sufficiently given, for
all purposes, if deposited, postage prepaid, in a post office or letter box
addressed to such Person at his address as shown in the records of the Trust.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if delivered personally or sent by
cable, telegram, telecopier or telex to the Trustee at the following address or
at such other addresses as shall be specified by the Trustee:
If to the Trustee:
Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Putney, Twombly, Hall & Hirson LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
14.7 Counterparts.14.7 Counterparts. This Agreement may be
------------
executed in any number of counterparts, each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.
[Remainder of page intentionally left blank. Signature page follows.]
B584550.1
Wilmington Trust\EquisLiquidatingTrustAgmt
IN WITNESS WHEREOF, the General Partner of the Partnership has caused this
Agreement to be executed by an authorized officer, and the Trustee hereunder has
executed this Agreement, as Trustee and not as an individual, as of the 18th day
of July 2002.
PARTNERSHIP:
AMERICAN INCOME PARTNERS V-D LIMITED PARTNERSHIP
By: AFG Leasing IV Incorporated, General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
TRUSTEE:
WILMINGTON TRUST COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President
B584550.1
Wilmington Trust\EquisLiquidatingTrustAgmt
SCHEDULE A
----------
WILMINGTON TRUST COMPANY
SCHEDULE OF FEES
to act as
TRUSTEE, REGISTRAR, TRANSFER AGENT AND DISTRIBUTION AGENT
LIQUIDATING TRUST
EXHIBIT A
---------
SETTLEMENT AGREEMENT
------
EXHIBIT B
---------
FORM OF ▇▇▇▇ OF SALE, ASSIGNMENT, ACCEPTANCE
AND ASSUMPTION AGREEMENT
EXHIBIT B
EXHIBIT B
▇▇▇▇ OF SALE, ASSIGNMENT, ACCEPTANCE AND ASSUMPTION AGREEMENT
This ▇▇▇▇ OF SALE, ASSIGNMENT, ACCEPTANCE AND ASSUMPTION AGREEMENT, made,
executed and entered into as of July 18, 2002, by and among American Income
Partners V-A Limited Partnership, American Income Partners V-B Limited
Partnership, American Income Partners V-C Limited Partnership and American
Income Partners V-D Limited Partnership, American Income Fund I-A, a
Massachusetts Limited Partnership, American Income Fund I-B, a Massachusetts
Limited Partnership, American Income Fund I-C, a Massachusetts Limited
Partnership, American Income Fund I-D, a Massachusetts Limited Partnership and
American Income Fund I-E, a Massachusetts Limited Partnership, AIRFUND
International Limited Partnership and AIRFUND II International Limited
Partnership (each an "Assignor" and, together, the "Assignors"), and Wilmington
-------- ---------
Trust Company, a Delaware banking corporation, not in its individual capacity,
but solely as trustee (the "Trustee") of each of the American Income Partners
-------
V-A Limited Partnership Liquidating Trust, the American Income Partners V-B
Limited Partnership Liquidating Trust, the American Income Partners V-C Limited
Partnership Liquidating Trust, the American Income Partners V-D Limited
Partnership Liquidating Trust, the American Income Fund I-A, a Massachusetts
Limited Partnership, Liquidating Trust, the American Income Fund I-B, a
Massachusetts Limited Partnership, Liquidating Trust, the American Income Fund
I-C, a Massachusetts Limited Partnership, Liquidating Trust, the American Income
Fund I-D, a Massachusetts Limited Partnership, Liquidating Trust and the
American Income Fund I-E, a Massachusetts Limited Partnership, Liquidating
Trust, the AIRFUND International Limited Partnership Liquidating Trust and the
AIRFUND II International Limited Partnership Liquidating Trust (each a
"Liquidating Trust" and together, the "Liquidating Trusts").
---------- -------------------
RECITALS
--------
WHEREAS, the Trustee and each the Assignors are parties to Liquidating
Trust Agreements dated as of the date hereof, pursuant to which each of the
Assignors has created a Liquidating Trust and engaged the Trustee as trustee to
administer the Liquidating Trust (the "Agreements") pursuant to the terms of a
----------
Revised Stipulation of Settlement, entered into by the Assignors and certain
plaintiffs in settlement of a lawsuit, that was approved pursuant to a Final
Judgment and Order entered on the court's docket on June 18, 2002; and
WHEREAS, the Agreements contemplate that each of the Assignors will place, as of
the date hereof and in accordance with a Plan of Liquidation adopted by the
Assignors as of the date hereof, all of its undistributed assets, including but
not limited to, cash, equipment and securities, along with certain Cash Reserves
(as defined in the Revised Stipulation of Settlement) subject to disbursement
for the Assignor's contingent liabilities and cash designated as reserves for
the Liquidating Trust's contingent liabilities, into the Liquidating Trust
established to receive said assets and reserves of each Assignor; and
WHEREAS, the Trustee and each of the Assignors now desire to carry out the
intent and purpose of the Agreements by the execution and delivery to the
Trustee by each Assignor of this instrument evidencing the conveyance,
assignment, transfer, sale and delivery to the Trustee of the Transferred Assets
(as hereinafter defined) and the acceptance by the Trustee of the Assumed
Obligations (as hereinafter defined);
NOW, THEREFORE, in consideration of the foregoing premises and for $10 and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged:
ASSIGNMENT
----------
Each of the Assignors does hereby convey, assign, transfer, sell and
deliver unto the Trustee and its successors and assigns, forever, for the
benefit of each Assignor's Liquidating Trust, all of each such Assignor's right,
title and interest in, to and under all of the assets of each of the Assignors
as set forth and more fully described by category of asset and more fully
enumerated by Assignor on Exhibit A, hereto, including, without limitation any
------- -
accounts receivable, limited partnership interests, beneficial interests, rights
in litigation, security interests, contract rights or agreements, rights to
payment or distributions or similar rights that each Assignor may possess in
same (together, the "Transferred Assets").
-------------------
ACCEPTANCE AND ASSUMPTION
---------------------------
The Trustee accepts the foregoing conveyance, assignment, transfer and
delivery of the Transferred Assets and agrees to assume all liabilities and
obligations relating to the Transferred Assets to the extent specifically set
forth in the Agreements (the "Assumed Obligations").
--------------------
TO HAVE AND TO HOLD the Transferred Assets and the Assumed Obligations unto the
Trustee, its successors and assigns, FOREVER, for the benefit of each Assignor's
Liquidating Trust.
Each Assignor hereby constitutes and appoints the Trustee and its successors and
assigns as its true and lawful attorneys in fact in connection with the
transactions contemplated by this instrument, with full power of substitution,
in the name and stead of each Assignor but on behalf of and for the benefit of
the Trustee and its successors and assigns, to demand and receive any and all of
the assets, properties, rights and business hereby conveyed, assigned, and
transferred or intended so to be, and to give receipt and releases for and in
respect of the same and any part thereof, and from time to time to institute and
prosecute, in the name of the Assignor or otherwise, for the benefit of the
Trustee or its successors and assigns, proceedings at law, in equity, or
otherwise, which the Trustee or its successors or assigns reasonably deem proper
in order to collect or reduce to possession or endorse any portion of the
Transferred Assets and to do all acts and things in relation to the assets which
the Trustee or its successors or assigns reasonably deem desirable.
This instrument shall be binding upon and shall inure to the benefit of the
respective successors and assigns of the Assignors and the Trustee.
This instrument shall be construed and enforced in accordance with the laws of
the State of Delaware, without regard to conflict of law.
[The remainder of this page is left intentionally blank.]
IN WITNESS WHEREOF, the undersigned have executed this ▇▇▇▇ of Sale,
Assignment, Acceptance and Assumption Agreement under seal on the date first
above written.
ASSIGNORS
AMERICAN INCOME PARTNERS V-A LIMITED PARTNERSHIP
AMERICAN INCOME PARTNERS V-B LIMITED PARTNERSHIP
AMERICAN INCOME PARTNERS V-C LIMITED PARTNERSHIP
AMERICAN INCOME PARTNERS V-D LIMITED PARTNERSHIP
By: AFG Leasing IV Incorporated, General Partner
By: _________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
AMERICAN INCOME FUND I-A, A MASSACHUSETTS LIMITED PARTNERSHIP
AMERICAN INCOME FUND I-B, A MASSACHUSETTS LIMITED PARTNERSHIP
AMERICAN INCOME FUND I-C, A MASSACHUSETTS LIMITED PARTNERSHIP
AMERICAN INCOME FUND I-D, A MASSACHUSETTS LIMITED PARTNERSHIP
AMERICAN INCOME FUND I-E, A MASSACHUSETTS LIMITED PARTNERSHIP
By: AFG Leasing VI Incorporated, General Partner
By: _________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
AIRFUND INTERNATIONAL LIMITED PARTNERSHIP
AIRFUND II INTERNATIONAL LIMITED PARTNERSHIP
By: AFG Aircraft Management Corporation, General Partner
By: _________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
TRUSTEE
WILMINGTON TRUST COMPANY, not in its individual capacity but solely as trustee
of each of the Liquidating Trusts
By: ________________________________
Its: ________________________________
THE COMMONWEALTH OF MASSACHUSETTS )
)ss.
COUNTY OF SUFFOLK )
On this 19th day of July 2002 before me, a Notary Public in and for the
foregoing jurisdiction, personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇▇, known to me the Vice
President of AFG Leasing IV Incorporated (the "Corporation"), who acknowledged
to me that he executed the foregoing ▇▇▇▇ of Sale, Assignment, Acceptance and
Assumption Agreement in said capacity and on behalf of the Corporation as
General Partner, that his execution was duly authorized and approved by the
Corporation, and that it was the free act and deed of the Corporation.
__________________________________
Notary Public
My Commission Expires:______________
THE COMMONWEALTH OF MASSACHUSETTS )
)ss.
COUNTY OF SUFFOLK )
On this 19th day of July 2002 before me, a Notary Public in and for the
foregoing jurisdiction, personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇▇, known to me the Vice
President of AFG Leasing VI Incorporated (the "Corporation"), who acknowledged
to me that he executed the foregoing ▇▇▇▇ of Sale, Assignment, Acceptance and
Assumption Agreement in said capacity and on behalf of the Corporation as
General Partner, that his execution was duly authorized and approved by the
Corporation, and that it was the free act and deed of the Corporation.
__________________________________
Notary Public
My Commission Expires:______________
THE COMMONWEALTH OF MASSACHUSETTS )
)ss.
COUNTY OF SUFFOLK )
On this 19th day of July 2002 before me, a Notary Public in and for the
foregoing jurisdiction, personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇▇, known to me the Vice
President of AFG Aircraft Management Corporation (the "Corporation"), who
acknowledged to me that he executed the foregoing ▇▇▇▇ of Sale, Assignment,
Acceptance and Assumption Agreement in said capacity and on behalf of the
Corporation as General Partner, that his execution was duly authorized and
approved by the Corporation, and that it was the free act and deed of the
Corporation.
__________________________________
Notary Public
My Commission Expires:______________
EXHIBIT A
TRANSFERRED ASSETS
------------------
Described by Category of Asset and on an Assignor by Assignor Basis
-------------------------------------------------------------------
I. ACCOUNTS RECEIVABLE:
(see the accounts receivable schedule attached hereto)
II. BENEFICIAL INTERESTS:
A. Beneficial Interests in a trust, relating to, inter alia, a
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MD-82 aircraft bearing MSN 49151, pursuant to a Trust
Agreement dated as of September 12, 2001, as amended, by and among Investor
Asset Holding Corp., as Owner Trustee and the following Assignors as Owner
Participants in the percentages set forth below:
American Income Fund I-C: 11.872%
---------------------------
American Income Fund I-D: 14.391%
---------------------------
American Income Fund I-E: 9.714%
---------------------------
Airfund International: 49.17%
----------------------
Airfund II International: 14.853%
--------------------------
B. Beneficial Interests in a trust, relating to, inter alia, a Boeing
737-2H4 aircraft bearing serial number 21722, pursuant to a Trust Agreement
dated as of December 30, 1991, as amended, by and among ▇▇▇▇▇ Fargo Bank
Northwest, National Association (f/k/a First Security Bank of Utah, National
Association), as Owner Trustee and the following Assignors as Owner Participants
in the percentages set forth below:
American Income Fund I-C: 14.35%
---------------------------
American Income Fund I-D: 17.39%
---------------------------
American Income Fund I-E: 11.74%
---------------------------
Airfund International: 43.41%
----------------------
Airfund II International: 13.11%
--------------------------
C. Beneficial Interests in a trust, relating to, inter alia, a Boeing
737-200A aircraft bearing MSN 21721 pursuant to a Trust Agreement dated as of
December 30, 1991, as amended, by and among ▇▇▇▇▇ Fargo Bank Northwest, National
Association, as Owner Trustee and the following Assignors as Owner Participants
in the percentages set forth below:
American Income Fund I-C: 14.35%
---------------------------
American Income Fund I-D: 17.39%
---------------------------
American Income Fund I-E: 11.74%
---------------------------
Airfund International: 43.41%
----------------------
Airfund II International: 13.11%
--------------------------
D. Beneficial Interests in a trust, relating to certain equipment
pursuant to a certain Trust Agreement dated as of December 13, 1989, as amended,
by and among ▇▇▇▇▇ Fargo Bank Northwest, National Association and Investors
Asset Holding Corp., as Trustees and the following Assignors as Owner
Participants in the percentages set forth below:
American Income Partners V-A: 14.93333%
-------------------------------
American Income Partners V-B: 40.00000%
-------------------------------
American Income Partners V-C: 4.00000%
-------------------------------
American Income Fund I-A: 7.73331%
---------------------------
Airfund II International: 33.33336%
--------------------------
III. LIMITED PARTNERSHIP INTERESTS IN THE HOLDERS OF SEMELE GROUP, INC.
NOTES AND COMMON STOCK:
A. Limited partnership interests in AFG Hato Arrow Limited Partnership,
a Massachusetts limited partnership, held by the following Assignors in the
following percentages:
American Income Fund I-E: 67.00%
---------------------------
B. Limited partnership interests in AFG Dove Arrow Limited Partnership,
a Massachusetts limited partnership, held by the following Assignors in the
following percentages:
American Income Fund I-C: 33.85%
---------------------------
American Income Fund I-D: 66.15%
---------------------------
C. Limited partnership interests in AIP/Larkfield Limited Partnership,
a Massachusetts limited partnership, held by the following Assignors in the
following percentages:
American Income Partners V-A: 46.4646%
-------------------------------
American Income Partners V-B: 53.5354%
-------------------------------
IV. RIGHTS IN LITIGATION:
A. The rights of American Income Fund I-E as a plaintiff in an action
------------------------
filed in December 1998 against General Motors Corporation in the Superior Court
for The Commonwealth of Massachusetts relating to a Master Lease Agreement No.
9108MIG433 and Rental Schedules ▇-▇, ▇-▇, ▇-▇ and B-14.
V. ECHELON NOTES AND PLEDGE AGREEMENT:
A. The rights of the following Assignors in certain promissory notes
dated March 8, 2000, as amended, made by Echelon Residential Holdings LLC in
favor of the Assignors, as lenders, having principal amounts set forth opposite
each Assignor's name, together with any accrued but unpaid interest:
American Income Partners V-A: $2,160,000
-------------------------------
American Income Partners V-B: $5,700,000
-------------------------------
American Income Partners V-C: $2,390,000
-------------------------------
American Income Partners V-D: $2,730,000
-------------------------------
American Income Fund I-A: $1,650,000
---------------------------
American Income Fund I-B: $1,310,000
---------------------------
American Income Fund I-C: $2,780,000
---------------------------
American Income Fund I-D: $3,050,000
---------------------------
American Income Fund I-E: $4,790,000
---------------------------
Airfund International: $1,800,000
----------------------
Airfund II International: $3,640,000
--------------------------
B. The rights of the foregoing Assignors in that certain Pledge
Agreement, dated March 8, 2000, by and among the Assignors and Holdings relating
to the pledge of all of the membership interests in Echelon Residential LLC by
Holdings as security for the payment of the Notes.
VI. CONTRACT RIGHTS, RIGHTS TO PAYMENT:
A. All right, title and interest of American Income Partners V-A in and
----------------------------
to that certain Purchase and Sale Agreement dated as of April 1, 2002 by and
between such Assignor, as Seller, and Manufacturers' Leasing Services Corp., as
Purchaser relating to the sale of certain equipment.
B. (1) All right, title and interest of American Income Partners
------------------------
V-C in and to that certain Purchase and Sale Agreement dated as of April 1, 2002
-
by and between such Assignor, as Seller, and Manufacturers' Leasing Services
Corp., as Purchaser relating to the sale of certain equipment.
(2) All right, title and interest and rights to payment of
American Income Partners V-C relating to: (a) that certain Renewal Rental
------------------------
Schedule No. A-15RN3 dated as of June 1, 2002 to Master Equipment Lease
Agreement No. 8607TXG245 dated as of July 15, 1986 and (b) that certain Renewal
Rental Schedule No. A-16RN3 dated as of June 1, 2002 to Master Equipment Lease
Agreement No. 8607TXG245 dated as of July 15, 1986.
C. All right, title and interest of American Income Partners V-D in and
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to that certain Purchase and Sale Agreement dated as of April 1, 2002 by and
between such Assignor, as Seller, and Manufacturers' Leasing Services Corp., as
Purchaser relating to the sale of certain equipment.
D. All right, title and interest of American Income Fund I-A in and to
------------------------
that certain Purchase and Sale Agreement dated as of April l, 2002 by and
between such Assignor, as Seller, and Manufacturers' Leasing Services Corp., as
Purchaser relating to the sale of certain equipment.
E. All right, title and interest of American Income Fund I-B in and to
------------------------
that certain Purchase and Sale Agreement dated as of April l, 2002 by and
between such Assignor, as Seller, and Manufacturers' Leasing Services Corp., as
Purchaser relating to the sale of certain equipment.
F. All right, title and interest of American Income Fund I-C in and to
------------------------
that certain Purchase and Sale Agreement dated as of April 1, 2002 by and
between such Assignor, as Seller, and Manufacturers' Leasing Services Corp., as
Purchaser relating to the sale of certain equipment.
G. All right, title and interest of American Income Fund I-D in and to
------------------------
that certain Purchase and Sale Agreement dated as of April 1, 2002 by and
between such Assignor, as Seller, and Manufacturers' Leasing Services Corp., as
Purchaser relating to the sale of certain equipment.
H. All right, title and interest of American Income Fund I-E in and to
------------------------
that certain Purchase and Sale Agreement dated as of April 1, 2002 by and
between such Assignor, as Seller, and Manufacturers' Leasing Services Corp., as
Purchaser relating to the sale of certain equipment.
EXHIBIT D
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CERTIFICATE OF CANCELLATION
OF
LIMITED PARTNERSHIP
OF
AMERICAN INCOME PARTNERS V-D LIMITED PARTNERSHIP
The undersigned, American Income Partners V-D Limited Partnership (the
"Partnership"), hereby certifies for purposes of Section 10 of M.G.L. Chapter
109, as follows:
1. The name of the Partnership is American Income Partners V-D Limited
Partnership.
2. The date of filing of its certificate (the "Certificate") of limited
partnership was May 21, 1990.
3. The reason for filing the certificate of cancellation is that the
Partnership has dissolved pursuant to the terms of its limited partnership
agreement and will not be henceforth pursuing the activities contemplated in its
Certificate.
4. The effective date of cancellation shall be on the date of filing of this
certificate.
IN WITNESS WHEREOF, the undersigned has executed this instrument under seal
as of this _____ day of August 2002.
AMERICAN INCOME PARTNERS V-D LIMITED PARTNERSHIP
By: AFG Leasing IV Incorporated,
its sole General Partner
By: ________________________________
Name:
Title:
BOS490070.1