Authority of Liquidating Trustee. In connection with the administration of the Liquidating Trust, except as set forth in this Trust Agreement, the Liquidating Trustee is authorized to perform any and all acts necessary or desirable to accomplish the purposes of the Liquidating Trust. Without limiting, but subject to, the express purpose of the Liquidating Trustee and to Section 3.3 hereof, the Liquidating Trustee shall be expressly authorized, but shall not be required, to: (a) hold legal title to any and all rights of the holders of the Liquidating Trust Interests in or arising from the Liquidating Trust Assets, including, without limitation, collecting, receiving any and all money and other property belonging to the Liquidating Trust and the right to vote any claim or interest in a case under the Bankruptcy Code and receive any distribution therein; (b) perform the duties, exercise the powers, and assert the rights of a trustee under Sections 704 and 1106 of the Bankruptcy Code, including, without limitation, commencing, prosecuting or settling causes of action, enforcing contracts, and asserting claims, defenses, offsets and privileges; (c) protect and enforce the rights to the Liquidating Trust Assets by any method deemed appropriate including, without limitation, by judicial proceedings or pursuant to any applicable bankruptcy, insolvency, moratorium or similar law and general principles of equity; (d) borrow funds, incur or assume liabilities, and pledge Liquidating Trust Assets on behalf of the Liquidating Trust in furtherance of or in connection with the Liquidating Trustee's or the Liquidating Trust's duties, powers, authority, and obligations under this Trust Agreement, and determine and satisfy any and all liabilities created, incurred or assumed by the Liquidating Trust; (e) file, if necessary, any and all tax and information returns with respect to the Liquidating Trust and the Liquidating Trust Disputed Claims Reserve and pay taxes, if any, properly payable by the Liquidating Trust or the Liquidating Trust Disputed Claims Reserve; (f) pay all expenses and make all other payments relating to the Liquidating Trust Assets; (g) obtain reasonable insurance coverage with respect to its liabilities and obligations as Liquidating Trustee under this Trust Agreement (in the form of an errors and omissions policy or otherwise); (h) obtain insurance coverage with respect to real and personal property that may become Liquidating Trust Assets, if any; (i) retain and pay such counsel and other professionals as the Liquidating Trustee in its sole discretion may select to assist the Liquidating Trustee in its duties, on such terms as the Liquidating Trustee deems appropriate, without Bankruptcy Court approval. The Liquidating Trustee may commit the Liquidating Trust to and shall pay such counsel and other professionals reasonable compensation for services rendered and expenses incurred. A law firm or professional shall not be disqualified from serving the Liquidating Trustee solely because of its current or prior retention as counsel or professional to the parties in interest in the Reorganization Cases or the Bermuda Proceedings; (j) retain and pay an independent public accounting firm to perform such reviews and/or audits of the financial books and records of the Liquidating Trust and the Liquidating Trust Disputed Claims Reserve as may be appropriate in the Liquidating Trustee's sole discretion and to prepare and file any tax returns or informational returns for the Liquidating Trust and the Liquidating Trust Disputed Claims Reserve as may be required. The Liquidating Trustee may commit the Liquidating Trust to and shall pay such independent public accounting firm reasonable compensation for services rendered and expenses incurred; (k) retain and pay such third parties as the Liquidating Trustee, in its sole discretion, may deem necessary or appropriate to assist the Liquidating Trustee in carrying out its powers and duties under this Trust Agreement. The Liquidating Trustee may commit the Liquidating Trust to and shall pay all such persons or entities reasonable compensation for services rendered and expenses incurred, as well as commit the Liquidating Trust to indemnify any such parties in connection with the performance of services; (l) employ such employees as the Liquidating Trustee, in its sole discretion and as consistent with the purposes of the Liquidating Trust, may deem necessary or appropriate to assist the Liquidating Trustee in carrying out its powers and duties under this Trust Agreement. The Liquidating Trustee may commit the Liquidating Trust to and shall pay all such employees reasonable salary in the amounts it shall determine to be appropriate and any employee benefits it may establish pursuant to Section 3.2(m) below. If the Liquidating Trustee employs employees pursuant to this Section 3.2(l), the Liquidating Trustee shall establish payroll procedures and pay any and all federal, state or local tax withholding required under applicable law with respect to any such employees, and it will take all other actions it deems necessary to effectuate the provisions of this Section 3.2(l); (m) establish and adopt or cease to provide such employee benefits for the benefit of any employees described in Section 3.2(l) above as the Liquidating Trustee, in its sole discretion and as consistent with the purposes of the Liquidating Trust, may deem necessary or appropriate, including, without limitation, the adoption of any group health plan; (n) assert or waive any privilege or defense on behalf of the Liquidating Trust or, with respect to the Liquidating Trust Assets, the Debtors; (o) compromise, adjust, arbitrate, xxx on or defend, pursue, prosecute abandon, exercise rights, powers, and privileges with respect to, or otherwise deal with and settle, in accordance with the terms set forth herein, Estate Representative Claims and all causes of action in favor of or against the Liquidating Trust as the Liquidating Trustee shall deem advisable; (p) avoid and recover transfers of the Debtors' property as may be permitted by the Bankruptcy Code or applicable state law; (q) execute offsets and assert counterclaims against Claims as provided for in the Plan; (r) in its sole discretion (subject to Section 2.4 hereof and this Section 3.2), take all appropriate action with respect to the Liquidating Trust Assets consistent with the purpose of the Liquidating Trust, including without limitation the avoidance of any transfer or obligation, and the filing, prosecution, settlement or other resolution of claims and causes of action, including without limitation those based upon Sections 510, 542-550, or 553(b) of the Bankruptcy Code; (s) invest any moneys held as part of the Liquidating Trust in accordance with the terms of Section 3.12 hereof, limited, however, to such investments that are consistent with the Liquidating Trust's status as a liquidating trust within the meaning of Treasury Regulations Section 301.7701-4(d); (t) request any appropriate tax determination with respect to the Liquidating Trust or the Liquidating Trust Disputed Claims Reserve, including, without limitation, a determination pursuant to Section 505 of the Bankruptcy Code; (u) establish and maintain a website for the purpose of providing notice of Liquidating Trust activities in lieu of sending written notice to holders of Liquidating Trust Interests, subject to providing notice of such website to such holders; (v) take or refrain from taking any and all actions the Liquidating Trustee reasonably deems necessary or convenient for the continuation, protection and maximization of the Liquidating Trust Assets or to carry out the purposes hereof; and (w) seek the examination of any entity, and subject to, the provisions of Bankruptcy Rule 2004. The Liquidity Trustee hereby delegates its powers in 3.2(n) through (r) to the Estate Representative and the Claims Subcommittee, as applicable, and may delegate such other powers as the Liquidating Trustee deems necessary for the resolution and conversion to Cash of the Estate Representative Claims and Disputed Claims. The Liquidation Trustee hereby acknowledges that the Estate Representative and Claims Subcommittee shall have such other powers, duties and authority as set forth in the Plan or Schemes with respect to Estate Representative Claims and the resolution of Disputed Claims.
Appears in 1 contract
Authority of Liquidating Trustee. In connection with the administration of the Liquidating Trust, except as set forth in this Trust Agreement, the Liquidating Trustee is authorized to perform any and all acts necessary or desirable to accomplish the purposes of the Liquidating Trust. Without limiting, but subject to, the express purpose of the Liquidating Trustee and to Section 3.3 hereof, the Liquidating Trustee shall be expressly authorized, but shall not be required, to:
(a) hold legal title to any and all rights of the holders of the Liquidating Trust Interests in or arising from the Liquidating Trust Assets, including, without limitation, collecting, receiving any and all money and other property belonging to the Liquidating Trust and the right to vote any claim or interest in a case under the Bankruptcy Code and receive any distribution therein;
(b) perform the duties, exercise the powers, and assert the rights of a trustee under Sections 704 and 1106 of the Bankruptcy Code, including, without limitation, commencing, prosecuting or settling causes of action, enforcing contracts, and asserting claims, defenses, offsets and privileges;
(c) protect and enforce the rights to the Liquidating Trust Assets by any method deemed appropriate including, without limitation, by judicial proceedings or pursuant to any applicable bankruptcy, insolvency, moratorium or similar law and general principles of equity;
(d) borrow funds, incur or assume liabilities, and pledge Liquidating Trust Assets on behalf of the Liquidating Trust in furtherance of or in connection with the Liquidating Trustee's or the Liquidating Trust's duties, powers, authority, and obligations under this Trust Agreement, and determine and satisfy any and all liabilities created, incurred or assumed by the Liquidating Trust;
(e) file, if necessary, any and all tax and information returns with respect to the Liquidating Trust and the Liquidating Trust Disputed Claims Reserve and pay taxes, if any, properly payable by the Liquidating Trust or the Liquidating Trust Disputed Claims Reserve;
(f) pay all expenses and make all other payments relating to the Liquidating Trust Assets;; -------------------------------------------------------------------------------- Liquidating Trust Agreement
(g) obtain reasonable insurance coverage with respect to its liabilities and obligations as Liquidating Trustee under this Trust Agreement (in the form of an errors and omissions policy or otherwise);
(h) obtain insurance coverage with respect to real and personal property that may become Liquidating Trust Assets, if any;
(i) retain and pay such counsel and other professionals as the Liquidating Trustee in its sole discretion may select to assist the Liquidating Trustee in its duties, on such terms as the Liquidating Trustee deems appropriate, without Bankruptcy Court approval. The Liquidating Trustee may commit the Liquidating Trust to and shall pay such counsel and other professionals reasonable compensation for services rendered and expenses incurred. A law firm or professional shall not be disqualified from serving the Liquidating Trustee solely because of its current or prior retention as counsel or professional to the parties in interest in the Reorganization Cases or the Bermuda Proceedings;
(j) retain and pay an independent public accounting firm to perform such reviews and/or audits of the financial books and records of the Liquidating Trust and the Liquidating Trust Disputed Claims Reserve as may be appropriate in the Liquidating Trustee's sole discretion and to prepare and file any tax returns or informational returns for the Liquidating Trust and the Liquidating Trust Disputed Claims Reserve as may be required. The Liquidating Trustee may commit the Liquidating Trust to and shall pay such independent public accounting firm reasonable compensation for services rendered and expenses incurred;
(k) retain and pay such third parties as the Liquidating Trustee, in its sole discretion, may deem necessary or appropriate to assist the Liquidating Trustee in carrying out its powers and duties under this Trust Agreement. The Liquidating Trustee may commit the Liquidating Trust to and shall pay all such persons or entities reasonable compensation for services rendered and expenses incurred, as well as commit the Liquidating Trust to indemnify any such parties in connection with the performance of services;
(l) employ such employees as the Liquidating Trustee, in its sole discretion and as consistent with the purposes of the Liquidating Trust, may deem necessary or appropriate to assist the Liquidating Trustee in carrying out its powers and duties under this Trust Agreement. The Liquidating Trustee may commit the Liquidating Trust to and shall pay all such employees reasonable salary in the amounts it shall determine to be appropriate and any employee benefits it may establish pursuant to Section 3.2(m) below. If the Liquidating Trustee employs employees pursuant to this Section 3.2(l), the Liquidating Trustee shall establish payroll procedures and pay any and all federal, state or local tax withholding required under applicable law with respect to any such employees, and it will take all other actions it deems necessary to effectuate the provisions of this Section 3.2(l);
(m) establish and adopt or cease to provide such employee benefits for the benefit of any employees described in Section 3.2(l) above as the Liquidating Trustee, in its sole discretion and as consistent with the purposes of the Liquidating Trust, may deem necessary or appropriate, including, without limitation, the adoption of any group health plan;; -------------------------------------------------------------------------------- Liquidating Trust Agreement
(n) assert or waive any privilege or defense on behalf of the Liquidating Trust or, with respect to the Liquidating Trust Assets, the Debtors;
(o) compromise, adjust, arbitrate, xxx sue on or defend, pursue, prosecute abandon, exercise rights, powers, and xxd privileges with respect to, or otherwise deal with and settle, in accordance with the terms set forth herein, Estate Representative Claims and all causes of action in favor of or against the Liquidating Trust as the Liquidating Trustee shall deem advisable;
(p) avoid and recover transfers of the Debtors' property as may be permitted by the Bankruptcy Code or applicable state law;
(q) execute offsets and assert counterclaims against Claims as provided for in the Plan;
(r) in its sole discretion (subject to Section 2.4 hereof and this Section 3.2), take all appropriate action with respect to the Liquidating Trust Assets consistent with the purpose of the Liquidating Trust, including without limitation the avoidance of any transfer or obligation, and the filing, prosecution, settlement or other resolution of claims and causes of action, including without limitation those based upon Sections 510, 542-550, or 553(b) of the Bankruptcy Code;
(s) invest any moneys held as part of the Liquidating Trust in accordance with the terms of Section 3.12 hereof, limited, however, to such investments that are consistent with the Liquidating Trust's status as a liquidating trust within the meaning of Treasury Regulations Section 301.7701-4(d);
(t) request any appropriate tax determination with respect to the Liquidating Trust or the Liquidating Trust Disputed Claims Reserve, including, without limitation, a determination pursuant to Section 505 of the Bankruptcy Code;
(u) establish and maintain a website for the purpose of providing notice of Liquidating Trust activities in lieu of sending written notice to holders of Liquidating Trust Interests, subject to providing notice of such website to such holders;
(v) take or refrain from taking any and all actions the Liquidating Trustee reasonably deems necessary or convenient for the continuation, protection and maximization of the Liquidating Trust Assets or to carry out the purposes hereof; and
(w) seek the examination of any entity, and subject to, the provisions of Bankruptcy Rule 2004. The Liquidity Trustee hereby delegates its powers in 3.2(n) through (r) to the Estate Representative and the Claims Subcommittee, as applicable, and may delegate such other powers as the Liquidating Trustee deems necessary for the resolution and conversion to Cash of the Estate Representative Claims and Disputed Claims. The Liquidation Trustee hereby acknowledges that the Estate Representative and Claims Subcommittee shall have such other powers, duties and authority as set forth in the Plan or Schemes with respect to Estate Representative Claims and the resolution of Disputed Claims.. -------------------------------------------------------------------------------- Liquidating Trust Agreement
Appears in 1 contract
Authority of Liquidating Trustee. In connection with Subject to any limitations contained herein (including, without limitation, Article 4 hereof) or in the administration of the Liquidating Trust, except as set forth in this Trust Agreement, the Liquidating Trustee is authorized to perform any and all acts necessary or desirable to accomplish the purposes of the Liquidating Trust. Without limiting, but subject to, the express purpose of the Liquidating Trustee and to Section 3.3 hereofPlan, the Liquidating Trustee shall be expressly authorized, but shall not be required, tohave the following powers and authorities:
(a) hold legal title to any and all rights of the holders of the Liquidating Trust Interests in or arising from the Liquidating Trust Assets, including, without limitation, collecting, receiving any and all money and other property belonging to the Liquidating Trust and and, after consultation with the Plan Advisory Committee, the right to vote any claim or interest relating to a Liquidating Trust Asset in any receivership or insolvency proceeding, including a case under the Bankruptcy Code and receive any distribution therein;
(b) in consultation with the Plan Advisory Committee, perform the duties, exercise the powers, and assert the rights of a trustee under Sections sections 704 and 1106 of the Bankruptcy Code, including, without limitation, commencing, prosecuting or settling causes of action, enforcing contracts, and contracts or asserting claims, defenses, offsets and privileges; provided, however, that the Liquidating Trustee shall not be required to consult with the Plan Advisory Committee, to the extent such matters are limited to a claim or cause of action against a Person or entity where the amount demanded from such Person or entity, in the aggregate, is less than or equal to $500,000 (a “De Minimis Claim or Cause of Action”);
(c) in consultation with the Plan Advisory Committee, protect and enforce the rights to the Liquidating Trust Assets by any method deemed appropriate including, without limitation, by judicial proceedings or pursuant to any applicable bankruptcy, insolvency, moratorium or similar law and general principles of equity;
(d) borrow funds, incur or assume liabilities, and pledge Liquidating Trust Assets on behalf of the Liquidating Trust in furtherance of or in connection consultation with the Liquidating Trustee's or Plan Advisory Committee, liquidate the Liquidating Trust's duties, powers, authority, and obligations under this Trust Agreement, and determine and satisfy any and all liabilities created, incurred or assumed by assets transferred to the Liquidating Trust;
(e) filein consultation with the Plan Advisory Committee, if necessary, any and all tax and information returns with respect to the Liquidating Trust and the Liquidating Trust Disputed Claims Reserve and pay taxes, if any, properly payable by the Liquidating Trust or the Liquidating Trust Disputed Claims Reserve;
(f) pay all expenses and make all other payments relating to the Liquidating Trust Assets;
(g) obtain reasonable insurance coverage with respect to its the liabilities and obligations as of the Liquidating Trustee and the Plan Advisory Committee under this Liquidating Trust Agreement (in the form of an errors and omissions policy or otherwise);
(hf) in consultation with the Plan Advisory Committee, obtain insurance coverage with respect to real and personal property that may become assets of the Liquidating Trust AssetsTrust, if any;
(ig) in consultation with the Plan Advisory Committee, retain and pay approve compensation arrangements of such counsel and other professionals, including, without limitation, any professionals previously retained by the Committee, or the Debtors, as the Liquidating Trustee in its sole discretion may shall select to assist the Liquidating Trustee in its his or her duties, on such terms as the Liquidating Trustee Trustee, after consultation with the Plan Advisory Committee, deems reasonable and appropriate, without Bankruptcy Court approval. The ; subject to the foregoing, the Liquidating Trustee may commit the Liquidating Trust to and shall pay such counsel and other professionals reasonable compensation for services rendered and reasonable and documented out-of pocket expenses incurred. A law firm or professional shall not be disqualified from serving the Liquidating Trustee solely because of its current or prior retention as counsel or professional to the parties in interest in the Reorganization Cases or the Bermuda Proceedings;
(jh) in consultation with the Plan Advisory Committee, retain and pay approve compensation arrangements of an independent public accounting firm to perform such reviews and/or audits of the financial books and records of the Liquidating Trust and the Liquidating Trust Disputed Claims Reserve as may be required by the SEC and applicable securities laws and as may be reasonable and appropriate in the Liquidating Trustee's sole ’s discretion and to prepare and file any tax returns returns, informational returns, or informational returns periodic or current reports as required by applicable securities laws, for the Liquidating Trust and the Liquidating Trust Disputed Claims Reserve as may be required. The ; subject to the foregoing, the Liquidating Trustee may commit the Liquidating Trust to and shall pay such independent public accounting firm reasonable compensation for services rendered and reasonable and documented out-of-pocket expenses incurred;
(ki) in consultation with the Plan Advisory Committee, retain and pay approve compensation arrangements of such third parties as the Liquidating Trustee, in its sole discretion, may deem necessary or appropriate to assist the Liquidating Trustee in carrying out its his or her powers and duties under this Liquidating Trust Agreement. The ; subject to the foregoing, the Liquidating Trustee may commit the Liquidating Trust to and shall pay all such persons or entities reasonable compensation for services rendered and reasonable and documented out-of- pocket expenses incurred, as well as commit the Liquidating Trust to indemnify any such parties in connection with the performance of services;
services (l) employ provided that such employees as indemnity shall not cover any losses, costs, damages, expenses or liabilities that result from the Liquidating Trusteerecklessness, in its sole discretion and as consistent with the purposes gross negligence, willful misconduct, or knowing violation of the Liquidating Trust, may deem necessary or appropriate to assist the Liquidating Trustee in carrying out its powers and duties under this Trust Agreement. The Liquidating Trustee may commit the Liquidating Trust to and shall pay all law by such employees reasonable salary in the amounts it shall determine to be appropriate and any employee benefits it may establish pursuant to Section 3.2(m) below. If the Liquidating Trustee employs employees pursuant to this Section 3.2(l), the Liquidating Trustee shall establish payroll procedures and pay any and all federal, state or local tax withholding required under applicable law with respect to any such employees, and it will take all other actions it deems necessary to effectuate the provisions of this Section 3.2(lparty);
(mj) establish and adopt or cease to provide such employee benefits for the benefit of any employees described in Section 3.2(l) above as the Liquidating Trustee, in its sole discretion and as consistent consultation with the purposes of the Liquidating TrustPlan Advisory Committee, may deem necessary or appropriate, including, without limitation, the adoption of any group health plan;
(n) assert or waive any privilege (including the Privileges) or any defense on behalf of the Liquidating Trust or, with respect to the Liquidating Trust Assets, Assets or the Debtors, as applicable; provided, however, that the Liquidating Trustee shall not be required to consult with or obtain approval of the Plan Advisory Committee, to the extent such matters are limited to a De Minimis Claim or Cause of Action, as defined herein, and such waiver shall be effectively limited to such matters;
(ok) in consultation with the Plan Advisory Committee, compromise, adjust, arbitrate, xxx on or defend, pursue, prosecute prosecute, abandon, exercise rights, powers, and privileges with respect to, or otherwise deal with and settle, in accordance with the terms set forth herein, Estate Representative Claims and all causes of action in favor of or against the Liquidating Trust as Trust; provided, however, that the Liquidating Trustee shall deem advisablenot be required to consult with the Plan Advisory Committee, to the extent such matters are limited to a De Minimis Claim or Cause of Action;
(pl) in consultation with the Plan Advisory Committee, avoid and recover transfers of any or all of the Debtors' Debtor’s property as provided for in the Plan, as may be permitted by the Bankruptcy Code or applicable state law;
(qm) in consultation with the Plan Advisory Committee, coordinate with the Debtors, until the dissolution thereof, to execute offsets and offsets, assert counterclaims against Claims holders of Claims, establish reserves for Disputed Claims, and make determinations as to Pro Rata calculations, as provided for in the Plan; provided, however, that the Liquidating Trustee shall defer to the Debtors to reconcile customer accounts, loan balances, and ordinary business transactions that may be required to do any of the foregoing, including any litigation relating thereto;
(r) in its sole discretion (subject to Section 2.4 hereof and this Section 3.2), take all appropriate action with respect to the Liquidating Trust Assets consistent with the purpose of the Liquidating Trust, including without limitation the avoidance of any transfer or obligation, and the filing, prosecution, settlement or other resolution of claims and causes of action, including without limitation those based upon Sections 510, 542-550, or 553(b) of the Bankruptcy Code;
(sn) invest any moneys held as part of the Liquidating Trust in accordance with the terms of Section 3.12 3.19 hereof, limited, however, to such investments that are consistent with the Liquidating Trust's ’s status as a liquidating trust within the meaning of Treasury Regulations Regulation Section 301.7701-4(d)) and in accordance with Rev. Proc 94-45, 1994-2 C.B. 684;
(to) in consultation with the Plan Advisory Committee, request any appropriate tax determination with respect to the Liquidating Trust or the Liquidating Trust Disputed Claims ReserveTrust, including, without limitation, a determination pursuant to Section section 505 of the Bankruptcy Code;
(up) subject to applicable securities laws, if any, establish and maintain a website for the purpose of providing notice of Liquidating Trust activities in lieu of sending written notice to holders of Liquidating Trust Interests, subject to providing notice of such website to such holders;
(vq) in consultation with the Plan Advisory Committee, seek the examination of any entity, subject to the provisions of Bankruptcy Rule 2004 or any other applicable law or rule or the terms and conditions of other agreements entered into prior to the Effective Date;
(r) in consultation with the Plan Advisory Committee, provide at least quarterly reports to the Liquidating Trust Beneficiaries;
(s) seek approval, as may be necessary, appropriate, or required, of the Bankruptcy Court for any decision of, or action(s) taken or to be taken by, the Liquidating Trustee pursuant to the terms of this Liquidating Trust Agreement or the Plan subject to a “best interest of the Liquidating Trust Beneficiaries” standard, as guided by the terms and purpose of the Liquidating Trust and in accordance with the terms of the Plan;
(t) comply with any duly issued and served subpoena upon the Liquidating Trust, the Plan Advisory Committee or the Liquidating Trustee;
(u) take or refrain from taking any and all other actions that the Liquidating Trustee Trustee, upon consultation with the Plan Advisory Committee, reasonably deems necessary or convenient for the continuation, protection and maximization of the Liquidating Trust Assets or to carry out the purposes hereof; provided, however, that the Liquidating Trustee shall not be required to (i) consult with the Plan Advisory Committee, to the extent such actions are limited to a De Minimis Claim or Cause of Action; or (ii) consult with the Plan Advisory Committee, to the extent such actions are ministerial in nature; and
(wv) seek the examination of any entityenter into all documents and agreements necessary, including, without limitation, a secured note agreement, and subject to, grant all applicable and required liens and/or security interests to comply with the provisions of Bankruptcy Rule 2004. The Liquidity Trustee hereby delegates its powers in 3.2(n) through (r) to the Estate Representative terms and the Claims Subcommittee, as applicable, and may delegate such other powers as the Liquidating Trustee deems necessary for the resolution and conversion to Cash conditions of the Estate Representative Claims Term Sheet and/or any documents evidencing such terms and Disputed Claims. The Liquidation Trustee hereby acknowledges conditions (as they may be modified by agreement of the parties thereto) and any liens that the Estate Representative and Claims Subcommittee shall have such other powers, duties and authority as set forth may be granted in the Plan or Schemes with respect to Estate Representative Claims and the resolution of Disputed Claimsconnection therewith.
Appears in 1 contract
Samples: Liquidating Trust Agreement
Authority of Liquidating Trustee. In connection The Liquidating Trust and the Liquidating Trustee shall be vested with the administration property, rights, interests, and powers of the Debtors transferred to the Liquidating Trust, as specified in the Plan or the Confirmation Order. The Liquidating Trustee shall make continuing efforts to dispose of the Trust Assets, make timely distributions and not unduly prolong the duration of the Liquidating Trust. The Liquidating Trustee’s rights, duties, and authority shall include, without limitation, all of the following:
(a) receive, control, manage and dispose of all Trust Assets for the benefit of the Beneficiaries who may receive distributions under the Plan;
(b) act as custodian of the Trust Assets and liquidate and reduce such assets to cash at such time as the Liquidating Trustee deems appropriate to accomplish the purpose of the Liquidating Trust, except in accordance with the terms of the Plan and the Liquidating Trust Agreement;
(c) calculate and pay all distributions required or permitted to be made from the Trust Assets under the Plan, this Liquidating Trust Agreement and/or orders of the Bankruptcy Court;
(d) subject to the provisions of the Plan and this Liquidating Trust Agreement, establish, fund, and/or administer the Disputed Claims Reserve and such other reserves, accounts and escrows as set forth in may be authorized by this Liquidating Trust Agreement, the Liquidating Trustee is authorized to perform any and all acts necessary Plan, or desirable to accomplish the purposes order of the Liquidating Trust. Without limiting, but subject to, the express purpose of the Liquidating Trustee and to Section 3.3 hereof, the Liquidating Trustee shall be expressly authorized, but shall not be required, to:Bankruptcy Court;
(ae) hold legal title employ, supervise and compensate attorneys, accountants, financial advisors and other professionals or other persons retained to any represent the interests of and all rights of the holders serve on behalf of the Liquidating Trust Interests (the “Trust Professionals”) and waive any conflicts of interest as deemed necessary or appropriate in her discretion;
(f) file the tax returns described in Section 7.4 in the manner described therein;
(g) object to or arising from seek to recharacterize, reclassify or subordinate General Unsecured Claims filed against any of the Liquidating Debtors and compromise and settle, abandon or dismiss any and all Disputed Claims in accordance with the terms of the Plan;
(h) seek estimation of contingent or unliquidated General Unsecured Claims under section 502(c) of the Bankruptcy Code;
(i) seek determination of tax liability under section 505 of the Bankruptcy Code;
(j) prosecute, settle, dismiss, abandon or otherwise dispose of any and all Causes of Action of the Debtors or their Estates constituting Trust Assets, including, without limitation, collectingall Causes of Action arising under sections 510, receiving any 542 through 551 and all money and other property belonging to the Liquidating Trust and the right to vote any claim or interest in a case under 553 of the Bankruptcy Code and receive any distribution therein;
(bin accordance with section 1123(b)(3)(B) perform the duties, exercise the powers, and assert the rights of a trustee under Sections 704 and 1106 of the Bankruptcy Code, including, without limitation, commencing, prosecuting or settling causes of action, enforcing contracts, and asserting claims, defenses, offsets and privileges;
(c) protect and enforce the rights to the Liquidating Trust Assets by any method deemed appropriate including, without limitation, by judicial proceedings or pursuant to any applicable bankruptcy, insolvency, moratorium or similar law and general principles of equity;
(d) borrow funds, incur or assume liabilities, and pledge Liquidating Trust Assets on behalf of the Liquidating Trust in furtherance of or in connection with the Liquidating Trustee's or the Liquidating Trust's duties, powers, authority, and obligations under this Trust Agreement, and determine and satisfy any and all liabilities created, incurred or assumed by the Liquidating Trust;
(e) file, if necessary, any and all tax and information returns with respect to the Liquidating Trust and the Liquidating Trust Disputed Claims Reserve and pay taxes, if any, properly payable by the Liquidating Trust or the Liquidating Trust Disputed Claims Reserve;
(fk) pay all expenses and make all other necessary payments relating to the Liquidating Trust Assets; Assets;
(g) obtain reasonable insurance coverage with respect to its liabilities and obligations as Liquidating Trustee under this Trust Agreement (in the form of an errors and omissions policy or otherwise);
(h) obtain insurance coverage with respect to real and personal property that may become Liquidating Trust Assets, if any;
(i) retain and pay such counsel and other professionals as the Liquidating Trustee in its sole discretion may select to assist the Liquidating Trustee in its duties, on such terms as the Liquidating Trustee deems appropriate, without Bankruptcy Court approval. The Liquidating Trustee may commit the Liquidating Trust to and shall pay such counsel and other professionals reasonable compensation for services rendered and expenses incurred. A law firm or professional shall not be disqualified from serving the Liquidating Trustee solely because of its current or prior retention as counsel or professional to the parties in interest in the Reorganization Cases or the Bermuda Proceedings;
(j) retain and pay an independent public accounting firm to perform such reviews and/or audits of the financial books and records of the Liquidating Trust and the Liquidating Trust Disputed Claims Reserve as may be appropriate in the Liquidating Trustee's sole discretion and to prepare and file any tax returns or informational returns for the Liquidating Trust and the Liquidating Trust Disputed Claims Reserve as may be required. The Liquidating Trustee may commit the Liquidating Trust to and shall pay such independent public accounting firm reasonable compensation for services rendered and expenses incurred;
(k) retain and pay such third parties as the Liquidating Trustee, in its sole discretion, may deem necessary or appropriate to assist the Liquidating Trustee in carrying out its powers and duties under this Trust Agreement. The Liquidating Trustee may commit the Liquidating Trust to and shall pay all such persons or entities reasonable compensation for services rendered and expenses incurred, as well as commit the Liquidating Trust to indemnify any such parties in connection with the performance of services;
(l) employ such employees as the Liquidating Trustee, in its sole discretion and as consistent with the purposes of the Liquidating Trust, may deem necessary or appropriate to assist the Liquidating Trustee in carrying out its powers and duties under this Trust Agreement. The Liquidating Trustee may commit the Liquidating Trust to and shall pay all such employees reasonable salary in the amounts it shall determine to be appropriate and any employee benefits it may establish pursuant to Section 3.2(m) below. If the Liquidating Trustee employs employees pursuant to this Section 3.2(l), the Liquidating Trustee shall establish payroll procedures and pay any and all federal, state or local tax withholding required under applicable law with respect to any such employees, and it will take all other actions it deems necessary to effectuate the provisions of this Section 3.2(l);
(m) establish and adopt or cease to provide such employee benefits for the benefit of any employees described in Section 3.2(l) above as the Liquidating Trustee, in its sole discretion and as consistent with the purposes of the Liquidating Trust, may deem necessary or appropriate, including, without limitation, the adoption of any group health plan;
(n) assert or waive any privilege or defense on behalf of the Liquidating Trust or, with respect Debtors related to the Liquidating Trust Assets, the Debtors;Trust
(o) compromise, adjust, arbitrate, xxx on or defend, pursue, prosecute abandon, exercise rights, powers, and privileges with respect to, or otherwise deal with and settle, in accordance with the terms set forth herein, Estate Representative Claims and all causes of action in favor of or against the Liquidating Trust as the Liquidating Trustee shall deem advisable;
(p) avoid and recover transfers of the Debtors' property as may be permitted by the Bankruptcy Code or applicable state law;
(q) execute offsets and assert counterclaims against Claims as provided for in the Plan;
(r) in its sole discretion (subject to Section 2.4 hereof and this Section 3.2), take all appropriate action with respect to the Liquidating Trust Assets consistent with the purpose of the Liquidating Trust, including without limitation the avoidance of any transfer or obligation, and the filing, prosecution, settlement or other resolution of claims and causes of action, including without limitation those based upon Sections 510, 542-550, or 553(b) of the Bankruptcy Code;
(s) invest any moneys held as part of the Liquidating Trust in accordance with the terms of Section 3.12 hereof, limited, however, to such investments that are consistent with the Liquidating Trust's status as a liquidating trust within the meaning of Treasury Regulations Section 301.7701-4(d);
(t) request any appropriate tax determination with respect to the Liquidating Trust or the Liquidating Trust Disputed Claims Reserve, including, without limitation, a determination pursuant to Section 505 of the Bankruptcy Code;
(u) establish and maintain a website for the purpose of providing notice of Liquidating Trust activities in lieu of sending written notice to holders of Liquidating Trust Interests, subject to providing notice of such website to such holders;
(v) take or refrain from taking any and all actions the Liquidating Trustee reasonably deems necessary or convenient for the continuation, protection and maximization of the Liquidating Trust Assets or to carry out the purposes hereof; and
(wm) seek the examination of any entity, and subject to, the provisions of entity under Bankruptcy Rule 2004. The Liquidity Trustee hereby delegates its ;
(n) perform any and all acts necessary or appropriate for the conservation and protection of the Trust Assets;
(o) exercise all powers in 3.2(nand rights, and take all actions contemplated by or provided for under the Plan or this Liquidating Trust Agreement;
(p) through (r) withhold from amounts distributable to the Estate Representative any Person or Entity any and the Claims Subcommitteeall amounts required by any law, rule, regulation, ruling, directive, or other governmental requirement, or as otherwise provided herein, as applicable, and may delegate such other powers as determined by the Liquidating Trustee deems necessary for the resolution and conversion to Cash of the Estate Representative Claims and Disputed Claims. The Liquidation Trustee hereby acknowledges that the Estate Representative and Claims Subcommittee shall have such other powers, duties and authority in her sole discretion;
(q) except as otherwise set forth in the Plan, undertake all administrative functions remaining in the Chapter 11 Cases, including the ultimate closing of the Chapter 11 Cases pursuant to a Final Decree, and file with the Bankruptcy Court such status reports as are required by the Bankruptcy Code, Bankruptcy Court, United States Trustee’s Office, or other applicable law or Bankruptcy Court procedure;
(r) respond to the inquiries of Holders of General Unsecured Claims; and
(s) take any and all other actions necessary or appropriate to implement or consummate the Plan or Schemes with respect to Estate Representative Claims and the resolution provisions of Disputed Claimsthis Liquidating Trust Agreement.
Appears in 1 contract
Samples: Liquidating Trust Agreement
Authority of Liquidating Trustee. In connection with Subject to any limitations contained herein (including, without limitation, Article 4 hereof) or in the administration of the Liquidating Trust, except as set forth in this Trust Agreement, the Liquidating Trustee is authorized to perform any and all acts necessary or desirable to accomplish the purposes of the Liquidating Trust. Without limiting, but subject to, the express purpose of the Liquidating Trustee and to Section 3.3 hereofPlan, the Liquidating Trustee shall be expressly authorized, but shall not be required, tohave the following powers and authorities:
(a) hold legal title to any and all rights of the holders of the Liquidating Trust Interests in or arising from the Liquidating Trust Assets, including, without limitation, collecting, receiving any and all money and other property belonging to the Liquidating Trust and and, after consultation with the Plan Advisory Committee, the right to vote any claim or interest relating to a Liquidating Trust Asset in any receivership or insolvency proceeding, including a case under the Bankruptcy Code and receive any distribution therein;
(b) in consultation with the Plan Advisory Committee, perform the duties, exercise the powers, and assert the rights of a trustee under Sections sections 704 and 1106 of the Bankruptcy Code, including, without limitation, commencing, prosecuting or settling causes of action, enforcing contracts, and contracts or asserting claims, defenses, offsets and privileges; provided, however, that the Liquidating Trustee shall not be required to consult with the Plan Advisory Committee, to the extent such matters are limited to a claim or cause of action against a Person or entity where the amount demanded from such Person or entity, in the aggregate, is less than or equal to $500,000 (a “De Minimis Claim or Cause of Action”);
(c) in consultation with the Plan Advisory Committee, protect and enforce the rights to the Liquidating Trust Assets by any method deemed appropriate including, without limitation, by judicial proceedings or pursuant to any applicable bankruptcy, insolvency, moratorium or similar law and general principles of equity;
(d) borrow funds, incur or assume liabilities, and pledge Liquidating Trust Assets on behalf of the Liquidating Trust in furtherance of or in connection consultation with the Liquidating Trustee's or Plan Advisory Committee, liquidate the Liquidating Trust's duties, powers, authority, and obligations under this Trust Agreement, and determine and satisfy any and all liabilities created, incurred or assumed by assets transferred to the Liquidating Trust;
(e) filein consultation with the Plan Advisory Committee, if necessary, any and all tax and information returns with respect to the Liquidating Trust and the Liquidating Trust Disputed Claims Reserve and pay taxes, if any, properly payable by the Liquidating Trust or the Liquidating Trust Disputed Claims Reserve;
(f) pay all expenses and make all other payments relating to the Liquidating Trust Assets;
(g) obtain reasonable insurance coverage with respect to its the liabilities and obligations as of the Liquidating Trustee and the Plan Advisory Committee under this Liquidating Trust Agreement (in the form of an errors and omissions policy or otherwise);
(hf) in consultation with the Plan Advisory Committee, obtain insurance coverage with respect to real and personal property that may become assets of the Liquidating Trust AssetsTrust, if any;
(ig) in consultation with the Plan Advisory Committee, retain and pay approve compensation arrangements of such counsel and other professionals, including, without limitation, any professionals previously retained by the Committee, or the Debtors, as the Liquidating Trustee in its sole discretion may shall select to assist the Liquidating Trustee in its his or her duties, on such terms as the Liquidating Trustee Trustee, after consultation with the Plan Advisory Committee, deems reasonable and appropriate, without Bankruptcy Court approval. The ; subject to the foregoing, the Liquidating Trustee may commit the Liquidating Trust to and shall pay such counsel and other professionals reasonable compensation for services rendered and reasonable and documented out-of pocket expenses incurred. A law firm or professional shall not be disqualified from serving the Liquidating Trustee solely because of its current or prior retention as counsel or professional to the parties in interest in the Reorganization Cases or the Bermuda Proceedings;
(jh) in consultation with the Plan Advisory Committee, retain and pay approve compensation arrangements of an independent public accounting firm to perform such reviews and/or audits of the financial books and records of the Liquidating Trust and the Liquidating Trust Disputed Claims Reserve as may be required by the SEC and applicable securities laws and as may be reasonable and appropriate in the Liquidating Trustee's sole ’s discretion and to prepare and file any tax returns returns, informational returns, or informational returns periodic or current reports as required by applicable securities laws, for the Liquidating Trust and the Liquidating Trust Disputed Claims Reserve as may be required. The ; subject to the foregoing, the Liquidating Trustee may commit the Liquidating Trust to and shall pay such independent public accounting firm reasonable compensation for services rendered and reasonable and documented out-of-pocket expenses incurred;
(ki) in consultation with the Plan Advisory Committee, retain and pay approve compensation arrangements of such third parties as the Liquidating Trustee, in its sole discretion, may deem necessary or appropriate to assist the Liquidating Trustee in carrying out its his or her powers and duties under this Liquidating Trust Agreement. The ; subject to the foregoing, the Liquidating Trustee may commit the Liquidating Trust to and shall pay all such persons or entities reasonable compensation for services rendered and reasonable and documented out-of- pocket expenses incurred, as well as commit the Liquidating Trust to indemnify any such parties in connection with the performance of services;
services (l) employ provided that such employees as indemnity shall not cover any losses, costs, damages, expenses or liabilities that result from the Liquidating Trusteerecklessness, in its sole discretion and as consistent with the purposes gross negligence, willful misconduct, or knowing violation of the Liquidating Trust, may deem necessary or appropriate to assist the Liquidating Trustee in carrying out its powers and duties under this Trust Agreement. The Liquidating Trustee may commit the Liquidating Trust to and shall pay all law by such employees reasonable salary in the amounts it shall determine to be appropriate and any employee benefits it may establish pursuant to Section 3.2(m) below. If the Liquidating Trustee employs employees pursuant to this Section 3.2(l), the Liquidating Trustee shall establish payroll procedures and pay any and all federal, state or local tax withholding required under applicable law with respect to any such employees, and it will take all other actions it deems necessary to effectuate the provisions of this Section 3.2(lparty);
(mj) establish and adopt or cease to provide such employee benefits for the benefit of any employees described in Section 3.2(l) above as the Liquidating Trustee, in its sole discretion and as consistent consultation with the purposes of the Liquidating TrustPlan Advisory Committee, may deem necessary or appropriate, including, without limitation, the adoption of any group health plan;
(n) assert or waive any privilege (including the Privileges) or any defense on behalf of the Liquidating Trust or, with respect to the Liquidating Trust Assets, Assets or the Debtors, as applicable; provided, however, that the Liquidating Trustee shall not be required to consult with or obtain approval of the Plan Advisory Committee, to the extent such matters are limited to a De Minimis Claim or Cause of Action, as defined herein, and such waiver shall be effectively limited to such matters;
(ok) in consultation with the Plan Advisory Committee, compromise, adjust, arbitrate, xxx on or defend, pursue, prosecute prosecute, abandon, exercise rights, powers, and privileges with respect to, or otherwise deal with and settle, in accordance with the terms set forth herein, Estate Representative Claims and all causes of action in favor of or against the Liquidating Trust as Trust; provided, however, that the Liquidating Trustee shall deem advisablenot be required to consult with the Plan Advisory Committee, to the extent such matters are limited to a De Minimis Claim or Cause of Action;
(pl) in consultation with the Plan Advisory Committee, avoid and recover transfers of any or all of the Debtors' Debtor’s property as provided for in the Plan, as may be permitted by the Bankruptcy Code or applicable state law;
(qm) in consultation with the Plan Advisory Committee, coordinate with the Debtors, until the dissolution thereof, to execute offsets and offsets, assert counterclaims against Claims holders of Claims, establish reserves for Disputed Claims, and make determinations as to Pro Rata calculations, as provided for in the Plan; provided, however, that the Liquidating Trustee shall defer to the Debtors to reconcile customer accounts, loan balances, and ordinary business transactions that may be required to do any of the foregoing, including any litigation relating thereto;
(r) in its sole discretion (subject to Section 2.4 hereof and this Section 3.2), take all appropriate action with respect to the Liquidating Trust Assets consistent with the purpose of the Liquidating Trust, including without limitation the avoidance of any transfer or obligation, and the filing, prosecution, settlement or other resolution of claims and causes of action, including without limitation those based upon Sections 510, 542-550, or 553(b) of the Bankruptcy Code;
(sn) invest any moneys held as part of the Liquidating Trust in accordance with the terms of Section 3.12 3.19 hereof, limited, however, to such investments that are consistent with the Liquidating Trust's ’s status as a liquidating trust within the meaning of Treasury Regulations Regulation Section 301.7701-4(d)) and in accordance with Rev. Proc 94-45, 1994-2 C.B. 684;
(to) in consultation with the Plan Advisory Committee, request any appropriate tax determination with respect to the Liquidating Trust or the Liquidating Trust Disputed Claims ReserveTrust, including, without limitation, a determination pursuant to Section section 505 of the Bankruptcy Code;
(up) subject to applicable securities laws, if any, establish and maintain a website for the purpose of providing notice of Liquidating Trust activities in lieu of sending written notice to holders of Liquidating Trust Interests, subject to providing notice of such website to such holders;
(vq) in consultation with the Plan Advisory Committee, seek the examination of any entity, subject to the provisions of Bankruptcy Rule 2004 or any other applicable law or rule or the terms and conditions of other agreements entered into prior to the Effective Date;
(r) in consultation with the Plan Advisory Committee, provide at least quarterly reports to the Liquidating Trust Beneficiaries;
(s) seek approval, as may be necessary, appropriate, or required, of the Bankruptcy Court for any decision of, or action(s) taken or to be taken by, the Liquidating Trustee pursuant to the terms of this Liquidating Trust Agreement or the Plan subject to a “best interest of the Liquidating Trust Beneficiaries” standard, as guided by the terms and purpose of the Liquidating Trust and in accordance with the terms of the Plan;
(t) comply with any duly issued and served subpoena upon the Liquidating Trust, the Plan Advisory Committee or the Liquidating Trustee;
(u) take or refrain from taking any and all other actions that the Liquidating Trustee Trustee, upon consultation with the Plan Advisory Committee, reasonably deems necessary or convenient for the continuation, protection and maximization of the Liquidating Trust Assets or to carry out the purposes hereof; provided, however, that the Liquidating Trustee shall not be required to (i) consult with the Plan Advisory Committee, to the extent such actions are limited to a De Minimis Claim or Cause of Action; or (ii) consult with the Plan Advisory Committee, to the extent such actions are ministerial in nature; and
(wv) seek the examination of any entityenter into all documents and agreements necessary, including, without limitation, a secured note agreement, and subject to, grant all applicable and required liens and/or security interests to comply with the provisions of Bankruptcy Rule 2004. The Liquidity Trustee hereby delegates its powers in 3.2(n) through (r) to the Estate Representative terms and the Claims Subcommittee, as applicable, and may delegate such other powers as the Liquidating Trustee deems necessary for the resolution and conversion to Cash conditions of the Estate Representative Claims Term Sheet and/or any documents evidencing such terms and Disputed Claims. The Liquidation Trustee hereby acknowledges conditions (as they may be modified by agreement of the parties thereto) and any liens that the Estate Representative and Claims Subcommittee shall have such other powers, duties and authority as set forth may be granted in the Plan or Schemes with respect to Estate Representative Claims and the resolution of Disputed Claimsconnection therewith.
Appears in 1 contract
Samples: Liquidating Trust Agreement
Authority of Liquidating Trustee. In connection with the administration of the Liquidating TrustTrust and the Reserves, except as set forth in this Liquidating Trust AgreementAgreement or the Plan, the Liquidating Trustee is authorized authorized, to perform any and all acts necessary or desirable to accomplish the purposes of the Liquidating TrustTrust and the Plan. Without limiting, but subject to, the express purpose of the Liquidating Trustee foregoing and to Section 3.3 3.04 hereof, the Liquidating Trustee shall be expressly authorized, authorized but shall not be required, to:
(a) hold legal title to any and all rights of the holders of the Liquidating Trust Interests in or arising from the Liquidating Trust Assets, including, without limitationincluding but not limited to, collecting, receiving any and all money and other property belonging to the Liquidating Trust and the right to vote any claim or interest in a case under the Bankruptcy Code and receive any distribution therein;
(b) perform the duties, exercise the powers, and assert the rights of a trustee under Sections sections 704 and 1106 of the Bankruptcy CodeCode (with the benefit of periods of limitation applicable to a trustee in bankruptcy), including, without limitation, commencing, prosecuting or settling causes any cause of action, enforcing contracts, and asserting claims, defenses, offsets and privileges;
(c) take possession and control, administer, maintain and dispose of documents, books and records related to the Liquidating Trust Assets;
(d) protect and enforce the rights to the Liquidating Trust Assets by any method deemed appropriate including, without limitation, by judicial proceedings or pursuant to any applicable bankruptcy, insolvency, moratorium or similar law and general principles of equity;
(de) borrow fundsinvestigate, incur analyze, compromise, adjust, arbitrate, xxx on or assume liabilitiesdefend, pursue, prosecute, abandon, or otherwise deal with and pledge Liquidating Trust Assets on behalf settle, in accordance with the terms set forth in Section 3.03 hereof, any causes of action or Litigation Claims in favor of or against the Liquidating Trust as advisable or as otherwise provided in furtherance Section 3.03 hereof;
(f) avoid and recover transfers of the Estates’ property as may be permitted by the Bankruptcy Code or applicable state law, including, without limitation, those identified in connection with the Liquidating Trustee's or the Liquidating Trust's duties, powers, authority, and obligations under this Trust Agreement, and Disclosure Statement;
(g) determine and satisfy any and all liabilities created, created or incurred or assumed by the Liquidating Trust;
(eh) object to, prosecute, settle and compromise or otherwise resolve Claims asserted against the Debtors;
(i) file, if necessary, any and all tax and information returns with respect to the Liquidating Trust and the Liquidating Trust Disputed Claims Reserve and pay taxes, if any, taxes properly payable by the Liquidating Trust or the Liquidating Trust Disputed Claims ReserveTrust, if any;
(fj) execute offsets against Claims as provided for in the Plan;
(k) assert or waive any privilege or defense on behalf of the Liquidating Trust, the Debtors or the Reorganized Debtors;
(l) pay all expenses and make all other payments relating to the Liquidating Trust Assets;
(g) obtain reasonable insurance coverage with respect to its liabilities and obligations as Liquidating Trustee under this Trust Agreement (in the form of an errors and omissions policy or otherwise);
(h) obtain insurance coverage with respect to real and personal property that may become Liquidating Trust Assets, if any;
(im) retain and pay such independent law firms as counsel and other professionals to the Liquidating Trust as the Liquidating Trustee in its sole discretion may select to assist aid in the prosecution of any claims that constitute the Liquidating Trustee in its dutiesTrust Assets, on and to perform such terms other functions as the Liquidating Trustee deems may be appropriate, without Bankruptcy Court approval. The Liquidating Trustee may commit the Liquidating Trust to and shall pay such counsel and other professionals independent law firms reasonable compensation for services rendered and expenses incurred. A law firm or professional shall not be disqualified from serving as independent counsel to the Liquidating Trustee Trust solely because of its current or prior retention as counsel or professional to by the parties in interest in the Reorganization Cases or the Bermuda ProceedingsCreditors’ Committee;
(jn) retain and pay an independent public accounting firm to perform such reviews and/or audits of the financial books and records of the Liquidating Trust and the Liquidating Trust Disputed Claims Reserve as may be appropriate in the Liquidating Trustee's sole discretion and to prepare and file any tax returns or informational returns for the Liquidating Trust and the Liquidating Trust Disputed Claims Reserve as may be required. The Liquidating Trustee may commit the Liquidating Trust to and shall pay such independent public accounting firm reasonable compensation for services rendered and expenses incurred. An accounting firm shall not be disqualified from serving as an independent public accounting firm to the Liquidating Trust solely because of its prior retention by the Creditors’ Committee;
(ko) retain and pay such third parties as the Liquidating Trustee, in its sole discretion, Trustee may deem necessary or appropriate to assist the Liquidating Trustee including, but not limited to, investigators, expert witnesses, advisors, and disbursement and paying agents, in carrying out its his powers and duties under this Liquidating Trust Agreement. The Liquidating Trustee may commit the Liquidating Trust to and shall pay all such persons or entities reasonable compensation for services rendered and expenses incurred, as well as commit the Liquidating Trust to indemnify any such parties in connection with the performance of services;
(lp) employ such employees as the Liquidating Trusteeor consultants, in its sole discretion and as consistent with the purposes of the Liquidating Trust, may deem Trust and as necessary or appropriate to assist the Liquidating Trustee in carrying out its his powers and duties under this Liquidating Trust Agreement. The Liquidating Trustee may commit the Liquidating Trust to and shall pay all such employees or consultants reasonable salary in the amounts it shall determine to be appropriate and any employee benefits it may establish pursuant to Section 3.2(m3.02(q) below. If the Liquidating Trustee employs shall employ employees pursuant to this Section 3.2(l3.02(p), the Liquidating Trustee shall establish payroll procedures and pay any and all federal, state or local tax withholding required under applicable law with respect to any such employees, and it will take all other actions it deems necessary to effectuate the provisions of this Section 3.2(l3.02(p);
(mq) establish and adopt or cease to provide such employee benefits for the benefit of any employees described in Section 3.2(l3.02(p) above as the Liquidating Trustee, in its sole discretion and as consistent with the purposes of the Liquidating Trust, may deem Trust and as necessary or appropriate, including, without limitation, including the adoption of any group health plan;
(n) assert or waive any privilege or defense on behalf of the Liquidating Trust or, with respect to the Liquidating Trust Assets, the Debtors;
(o) compromise, adjust, arbitrate, xxx on or defend, pursue, prosecute abandon, exercise rights, powers, and privileges with respect to, or otherwise deal with and settle, in accordance with the terms set forth herein, Estate Representative Claims and all causes of action in favor of or against the Liquidating Trust as the Liquidating Trustee shall deem advisable;
(p) avoid and recover transfers of the Debtors' property as may be permitted by the Bankruptcy Code or applicable state law;
(q) execute offsets and assert counterclaims against Claims as provided for in the Plan;
(r) in its sole discretion (subject to Section 2.4 hereof and this Section 3.2), take all appropriate action with respect to the Liquidating Trust Assets consistent with the purpose of the Liquidating Trust, including without limitation the avoidance of any transfer or obligation, and the filing, prosecution, settlement or other resolution of claims and causes of action, including without limitation those based upon Sections 510, 542-550, or 553(b) of the Bankruptcy Code;
(s) invest any moneys held as part of the Liquidating Trust in accordance with the terms of Section 3.12 4.05 hereof, limited, however, to such investments that are consistent with the Liquidating Trust's ’s status as a liquidating trust within the meaning of Treasury Regulations Regulation Section 301.7701-4(d)) and which actions are merely incidental to its liquidation and dissolution;
(s) borrow funds but only if approved by the Liquidating Trust Board;
(t) request represent the Liquidating Trust and the Estates before the Bankruptcy Court and any appropriate tax determination other courts of competent jurisdiction with respect to the Liquidating Trust Assets;
(u) appear as a party in interest in an action or proceeding over which the Liquidating Trust Disputed Claims ReserveBankruptcy Court has retained jurisdiction pursuant to the Plan;
(v) request any appropriate tax determination, including, without limitation, a determination pursuant to Section 505 of the Bankruptcy Code;
(uw) establish seek the examination of any entity under, and maintain a website for subject to, the purpose provisions of providing notice of Liquidating Trust activities in lieu of sending written notice to holders of Liquidating Trust Interests, subject to providing notice of such website to such holdersBankruptcy Rule 2004;
(vx) exercise such other powers as may be vested in the Liquidating Trustee by the Liquidating Trust Agreement, the Plan, or an order of the Bankruptcy Court;
(y) execute any documents, instruments, contracts and agreements necessary and appropriate to carry out his powers and duties;
(z) take or refrain from taking any and all actions the Liquidating Trustee reasonably deems necessary or convenient for the continuation, protection and maximization of the Liquidating Trust Assets or to carry out the purposes hereof; and;
(waa) seek take any and all necessary actions to convert the examination Liquidating Trust to a Delaware limited liability company, in the event that the Liquidating Trust shall fail or cease to qualify as a liquidating trust within the meaning of any entity, Treasury Regulations Section 301.7701-4(d);
(bb) establish and subject to, maintain a website for the provisions purpose of Bankruptcy Rule 2004. The Liquidity Trustee hereby delegates its powers in 3.2(n) through (r) publishing information and notices to the Estate Representative Beneficiaries;
(cc) make Distributions in accordance with the Plan; and (dd) take any and all necessary actions to dissolve any of the Reorganized Debtors and the Claims SubcommitteeLiquidating Trust, as same may be necessary, appropriate and/or applicable, and may delegate such other powers as the Liquidating Trustee deems necessary for the resolution and conversion to Cash of the Estate Representative Claims and Disputed Claims. The Liquidation Trustee hereby acknowledges that the Estate Representative and Claims Subcommittee shall have such other powers, duties and authority as set forth in the Plan or Schemes with respect to Estate Representative Claims and the resolution of Disputed Claims.
Appears in 1 contract
Samples: Liquidating Trust Agreement
