Authority of Liquidating Trustee. Subject to any limitations contained herein (including, without limitation, Article 4 hereof) or in the Plan, the Liquidating Trustee shall have 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, 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 704 and 1106 of the Bankruptcy Code, including, without limitation, commencing, prosecuting or settling causes of action, enforcing 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) in consultation with the Plan Advisory Committee, liquidate the assets transferred to the Liquidating Trust; (e) in consultation with the Plan Advisory Committee, obtain reasonable insurance coverage with respect to the liabilities and obligations 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); (f) 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, if any; (g) in consultation with the Plan Advisory Committee, retain and 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 shall select to assist the Liquidating Trustee in his or her duties, on such terms as the Liquidating Trustee, after consultation with the Plan Advisory Committee, deems reasonable and appropriate, without Bankruptcy Court approval; 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; (h) in consultation with the Plan Advisory Committee, retain and 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 as may be required by the SEC and applicable securities laws and as may be reasonable and appropriate in the Liquidating Trustee’s discretion and to prepare and file any tax returns, informational returns, or periodic or current reports as required by applicable securities laws, for the Liquidating Trust as may be required; 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; (i) in consultation with the Plan Advisory Committee, retain and approve compensation arrangements of such third parties to assist the Liquidating Trustee in carrying out his or her powers and duties under this Liquidating Trust Agreement; 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 (provided that such indemnity shall not cover any losses, costs, damages, expenses or liabilities that result from the recklessness, gross negligence, willful misconduct, or knowing violation of law by such party); (j) in consultation with the Plan Advisory Committee, waive any privilege (including the Privileges) or any defense on behalf of the Liquidating Trust or, with respect to the Liquidating Trust 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; (k) in consultation with the Plan Advisory Committee, 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, all causes of action in favor of or against the Liquidating Trust; 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 De Minimis Claim or Cause of Action; (l) in consultation with the Plan Advisory Committee, avoid and recover transfers of any or all of the Debtor’s property as provided for in the Plan, as may be permitted by the Bankruptcy Code or applicable state law; (m) in consultation with the Plan Advisory Committee, coordinate with the Debtors, until the dissolution thereof, to execute offsets, assert counterclaims against 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; (n) invest any moneys held as part of the Liquidating Trust in accordance with the terms of Section 3.19 hereof, limited, however, to such investments that are consistent with the Liquidating Trust’s status as a liquidating trust within the meaning of Treasury Regulation Section 301.7701-4(d) and in accordance with Rev. Proc 94-45, 1994-2 C.B. 684; (o) in consultation with the Plan Advisory Committee, request any appropriate tax determination with respect to the Liquidating Trust, including, without limitation, a determination pursuant to section 505 of the Bankruptcy Code; (p) 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; (q) 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, 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 (v) enter into all documents and agreements necessary, including, without limitation, a secured note agreement, and grant all applicable and required liens and/or security interests to comply with the terms and conditions of the Term Sheet and/or any documents evidencing such terms and conditions (as they may be modified by agreement of the parties thereto) and any liens that may be granted in connection therewith.
Appears in 1 contract
Samples: Liquidating Trust Agreement
Authority of Liquidating Trustee. Subject 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 limitations contained herein (includingand all acts necessary or desirable to accomplish the purposes of the Liquidating Trust. Without limiting, without limitationbut subject to, Article 4 the express purpose of the Liquidating Trustee and to Section 3.3 hereof) or in the Plan, the Liquidating Trustee shall have the following powers and authoritiesbe 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, after consultation with the Plan Advisory Committee, and 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 or contracts, and 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 consultation furtherance of or in connection with the Plan Advisory CommitteeLiquidating Trustee's or the Liquidating Trust's duties, liquidate the assets transferred to 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) in consultation file, if necessary, any and all tax and information returns with respect to the Plan Advisory CommitteeLiquidating 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 the its liabilities and obligations of the as Liquidating Trustee and the Plan Advisory Committee under this Liquidating Trust Agreement (in the form of an errors and omissions policy or otherwise);
(fh) in consultation with the Plan Advisory Committee, obtain insurance coverage with respect to real and personal property that may become assets of the Liquidating TrustTrust Assets, if any;
(gi) in consultation with the Plan Advisory Committee, retain and approve compensation arrangements of pay such counsel and other professionals, including, without limitation, any professionals previously retained by the Committee, or the Debtors, as the Liquidating Trustee shall in its sole discretion may select to assist the Liquidating Trustee in his or her its duties, on such terms as the Liquidating Trustee, after consultation with the Plan Advisory Committee, Trustee deems reasonable and appropriate, without Bankruptcy Court approval; subject to the foregoing, the . 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;
(hj) in consultation with the Plan Advisory Committee, retain and approve compensation arrangements of 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 required by the SEC and applicable securities laws and as may be reasonable and appropriate in the Liquidating Trustee’s 's sole discretion and to prepare and file any tax returns, returns or informational returns, or periodic or current reports as required by applicable securities laws, returns for the Liquidating Trust and the Liquidating Trust Disputed Claims Reserve as may be required; subject to the foregoing, the . 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;
(ik) in consultation with the Plan Advisory Committee, retain and approve compensation arrangements of 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 his or her its powers and duties under this Liquidating Trust Agreement; subject to the foregoing, the . 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;
(provided that l) employ such indemnity 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 not cover pay all such employees reasonable salary in the amounts it shall determine to be appropriate and any lossesemployee benefits it may establish pursuant to Section 3.2(m) below. If the Liquidating Trustee employs employees pursuant to this Section 3.2(l), coststhe Liquidating Trustee shall establish payroll procedures and pay any and all federal, damagesstate or local tax withholding required under applicable law with respect to any such employees, expenses or liabilities that result from and it will take all other actions it deems necessary to effectuate the recklessness, gross negligence, willful misconduct, or knowing violation provisions of law by such partythis Section 3.2(l);
(jm) establish and adopt or cease to provide such employee benefits for the benefit of any employees described in consultation Section 3.2(l) above as the Liquidating Trustee, in its sole discretion and as consistent with the Plan Advisory Committeepurposes 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 (including the Privileges) or any defense on behalf of the Liquidating Trust or, with respect to the Liquidating Trust Assets or Assets, 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;
(ko) in consultation with the Plan Advisory Committee, compromise, adjust, arbitrate, xxx sue on or defend, pursue, prosecute, 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; provided, however, that Trust as the Liquidating Trustee shall not be required to consult with the Plan Advisory Committee, to the extent such matters are limited to a De Minimis Claim or Cause of Actiondeem advisable;
(lp) in consultation with the Plan Advisory Committee, avoid and recover transfers of any or all of the Debtor’s Debtors' property as provided for in the Plan, as may be permitted by the Bankruptcy Code or applicable state law;
(mq) in consultation with the Plan Advisory Committee, coordinate with the Debtors, until the dissolution thereof, to execute offsets, offsets and assert counterclaims against holders of Claims, establish reserves for Disputed Claims, and make determinations as to Pro Rata calculations, Claims 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;
(nr) 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 3.19 3.12 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 Regulation Regulations Section 301.7701-4(d) and in accordance with Rev. Proc 94-45, 1994-2 C.B. 684);
(ot) in consultation with the Plan Advisory Committee, request any appropriate tax determination with respect to the Liquidating TrustTrust or the Liquidating Trust Disputed Claims Reserve, including, without limitation, a determination pursuant to section Section 505 of the Bankruptcy Code;
(pu) 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;
(q) 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;
(uv) take or refrain from taking any and all other actions that the Liquidating Trustee, upon consultation with the Plan Advisory Committee, Trustee reasonably deems necessary or convenient for the continuation, protection and maximization of the Liquidating Trust Assets or to carry out the purposes hereof; providedand
(w) seek the examination of any entity, howeverand subject to, that 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 not be required to (i) consult with have such other powers, duties and authority as set forth in the Plan Advisory Committee, or Schemes with respect to Estate Representative Claims and the extent such actions are limited to a De Minimis Claim or Cause resolution of Action; or (ii) consult with the Plan Advisory Committee, to the extent such actions are ministerial in nature; and
(v) enter into all documents and agreements necessary, including, without limitation, a secured note agreement, and grant all applicable and required liens and/or security interests to comply with the terms and conditions of the Term Sheet and/or any documents evidencing such terms and conditions (as they may be modified by agreement of the parties thereto) and any liens that may be granted in connection therewith.Disputed Claims. -------------------------------------------------------------------------------- Liquidating Trust Agreement
Appears in 1 contract
Authority of Liquidating Trustee. Subject 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 limitations contained herein (includingand all acts necessary or desirable to accomplish the purposes of the Liquidating Trust. Without limiting, without limitationbut subject to, Article 4 the express purpose of the Liquidating Trustee and to Section 3.3 hereof) or in the Plan, the Liquidating Trustee shall have the following powers and authoritiesbe 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, after consultation with the Plan Advisory Committee, and 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 or contracts, and 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 consultation furtherance of or in connection with the Plan Advisory CommitteeLiquidating Trustee's or the Liquidating Trust's duties, liquidate the assets transferred to 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) in consultation file, if necessary, any and all tax and information returns with respect to the Plan Advisory CommitteeLiquidating 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 the its liabilities and obligations of the as Liquidating Trustee and the Plan Advisory Committee under this Liquidating Trust Agreement (in the form of an errors and omissions policy or otherwise);
(fh) in consultation with the Plan Advisory Committee, obtain insurance coverage with respect to real and personal property that may become assets of the Liquidating TrustTrust Assets, if any;
(gi) in consultation with the Plan Advisory Committee, retain and approve compensation arrangements of pay such counsel and other professionals, including, without limitation, any professionals previously retained by the Committee, or the Debtors, as the Liquidating Trustee shall in its sole discretion may select to assist the Liquidating Trustee in his or her its duties, on such terms as the Liquidating Trustee, after consultation with the Plan Advisory Committee, Trustee deems reasonable and appropriate, without Bankruptcy Court approval; subject to the foregoing, the . 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;
(hj) in consultation with the Plan Advisory Committee, retain and approve compensation arrangements of 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 required by the SEC and applicable securities laws and as may be reasonable and appropriate in the Liquidating Trustee’s 's sole discretion and to prepare and file any tax returns, returns or informational returns, or periodic or current reports as required by applicable securities laws, returns for the Liquidating Trust and the Liquidating Trust Disputed Claims Reserve as may be required; subject to the foregoing, the . 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;
(ik) in consultation with the Plan Advisory Committee, retain and approve compensation arrangements of 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 his or her its powers and duties under this Liquidating Trust Agreement; subject to the foregoing, the . 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;
(provided that l) employ such indemnity 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 not cover pay all such employees reasonable salary in the amounts it shall determine to be appropriate and any lossesemployee benefits it may establish pursuant to Section 3.2(m) below. If the Liquidating Trustee employs employees pursuant to this Section 3.2(l), coststhe Liquidating Trustee shall establish payroll procedures and pay any and all federal, damagesstate or local tax withholding required under applicable law with respect to any such employees, expenses or liabilities that result from and it will take all other actions it deems necessary to effectuate the recklessness, gross negligence, willful misconduct, or knowing violation provisions of law by such partythis Section 3.2(l);
(jm) establish and adopt or cease to provide such employee benefits for the benefit of any employees described in consultation Section 3.2(l) above as the Liquidating Trustee, in its sole discretion and as consistent with the Plan Advisory Committeepurposes 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 (including the Privileges) or any defense on behalf of the Liquidating Trust or, with respect to the Liquidating Trust Assets or Assets, 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;
(ko) 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; provided, however, that Trust as the Liquidating Trustee shall not be required to consult with the Plan Advisory Committee, to the extent such matters are limited to a De Minimis Claim or Cause of Actiondeem advisable;
(lp) in consultation with the Plan Advisory Committee, avoid and recover transfers of any or all of the Debtor’s Debtors' property as provided for in the Plan, as may be permitted by the Bankruptcy Code or applicable state law;
(mq) in consultation with the Plan Advisory Committee, coordinate with the Debtors, until the dissolution thereof, to execute offsets, offsets and assert counterclaims against holders of Claims, establish reserves for Disputed Claims, and make determinations as to Pro Rata calculations, Claims 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;
(nr) 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 3.19 3.12 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 Regulation Regulations Section 301.7701-4(d) and in accordance with Rev. Proc 94-45, 1994-2 C.B. 684);
(ot) in consultation with the Plan Advisory Committee, request any appropriate tax determination with respect to the Liquidating TrustTrust or the Liquidating Trust Disputed Claims Reserve, including, without limitation, a determination pursuant to section Section 505 of the Bankruptcy Code;
(pu) 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;
(q) 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;
(uv) take or refrain from taking any and all other actions that the Liquidating Trustee, upon consultation with the Plan Advisory Committee, Trustee reasonably deems necessary or convenient for the continuation, protection and maximization of the Liquidating Trust Assets or to carry out the purposes hereof; providedand
(w) seek the examination of any entity, howeverand subject to, that 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 not be required to (i) consult with have such other powers, duties and authority as set forth in the Plan Advisory Committee, or Schemes with respect to Estate Representative Claims and the extent such actions are limited to a De Minimis Claim or Cause resolution of Action; or (ii) consult with the Plan Advisory Committee, to the extent such actions are ministerial in nature; and
(v) enter into all documents and agreements necessary, including, without limitation, a secured note agreement, and grant all applicable and required liens and/or security interests to comply with the terms and conditions of the Term Sheet and/or any documents evidencing such terms and conditions (as they may be modified by agreement of the parties thereto) and any liens that may be granted in connection therewithDisputed Claims.
Appears in 1 contract
Authority of Liquidating Trustee. Subject The Liquidating Trust and the Liquidating Trustee shall be vested with the property, rights, interests, and powers of the Debtors transferred to any limitations contained herein (includingthe 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, Article 4 hereof) or in all of the Plan, the Liquidating Trustee shall have the following powers and authoritiesfollowing:
(a) hold legal title to any receive, control, manage and dispose of all rights Trust Assets for the benefit 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, 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 Beneficiaries who may receive distributions under the Bankruptcy Code and receive any distribution thereinPlan;
(b) in consultation with the Plan Advisory Committee, perform the duties, exercise the powers, and assert the rights of a trustee under sections 704 and 1106 act as custodian of the Bankruptcy Code, including, without limitation, commencing, prosecuting or settling causes of action, enforcing contracts or asserting claims, defenses, offsets Trust Assets and privileges; provided, however, that liquidate and reduce such assets to cash at such time as the Liquidating Trustee shall not be required deems appropriate to consult accomplish the purpose of the Liquidating Trust, in accordance with the terms of the Plan Advisory Committee, to and 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”)Liquidating Trust Agreement;
(c) in consultation with calculate and pay all distributions required or permitted to be made from the Plan Advisory CommitteeTrust Assets under the Plan, protect and enforce the rights to the this 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 Agreement and/or orders of equitythe Bankruptcy Court;
(d) in consultation with subject to the provisions of the Plan Advisory Committeeand this Liquidating Trust Agreement, liquidate establish, fund, and/or administer the assets transferred to Disputed Claims Reserve and such other reserves, accounts and escrows as may be authorized by this Liquidating Trust Agreement, the Liquidating TrustPlan, or order of the Bankruptcy Court;
(e) in consultation with the Plan Advisory Committeeemploy, obtain reasonable insurance coverage with respect to the liabilities supervise and obligations 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);
(f) in consultation with the Plan Advisory Committeecompensate attorneys, obtain insurance coverage with respect to real and personal property that may become assets of the Liquidating Trustaccountants, if any;
(g) in consultation with the Plan Advisory Committee, retain and 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 shall select to assist the Liquidating Trustee in his or her duties, on such terms as the Liquidating Trustee, after consultation with the Plan Advisory Committee, deems reasonable and appropriate, without Bankruptcy Court approval; subject to the foregoing, the Liquidating Trustee may commit the Liquidating Trust to and shall pay such counsel financial advisors and other professionals reasonable compensation for services rendered or other persons retained to represent the interests of and reasonable and documented out-of pocket expenses incurred;
(h) in consultation with the Plan Advisory Committee, retain and 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 as may be required by the SEC and applicable securities laws and as may be reasonable and appropriate in the Liquidating Trustee’s discretion and to prepare and file any tax returns, informational returns, or periodic or current reports as required by applicable securities laws, for the Liquidating Trust as may be required; 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;
(i) in consultation with the Plan Advisory Committee, retain and approve compensation arrangements of such third parties to assist the Liquidating Trustee in carrying out his or her powers and duties under this Liquidating Trust Agreement; 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 (provided that such indemnity shall not cover any losses, costs, damages, expenses or liabilities that result from the recklessness, gross negligence, willful misconduct, or knowing violation of law by such party);
(j) in consultation with the Plan Advisory Committee, waive any privilege (including the Privileges) or any defense serve on behalf of the Liquidating Trust or, with respect to (the Liquidating “Trust Assets Professionals”) and waive any conflicts of interest as deemed necessary 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 mattersappropriate in her discretion;
(kf) file the tax returns described in consultation with Section 7.4 in the Plan Advisory Committeemanner described therein;
(g) object to or seek to recharacterize, compromise, adjust, arbitrate, xxx on reclassify or defend, pursue, prosecute, abandon, exercise rights, powers, subordinate General Unsecured Claims filed against any of the Debtors and privileges with respect to, or otherwise deal with compromise and settle, in accordance with the terms set forth herein, abandon or dismiss any and all causes of action in favor of or against the Liquidating Trust; 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 De Minimis Claim or Cause of Action;
(l) in consultation with the Plan Advisory Committee, avoid and recover transfers of any or all of the Debtor’s property as provided for in the Plan, as may be permitted by the Bankruptcy Code or applicable state law;
(m) in consultation with the Plan Advisory Committee, coordinate with the Debtors, until the dissolution thereof, to execute offsets, assert counterclaims against 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;
(n) invest any moneys held as part of the Liquidating Trust in accordance with the terms of Section 3.19 hereof, limited, however, to such investments that are consistent with the Liquidating Trust’s status as a liquidating trust within the meaning of Treasury Regulation Section 301.7701-4(d) and in accordance with Rev. Proc 94-45, 1994-2 C.B. 684;
(o) in consultation with the Plan Advisory Committee, request any appropriate tax determination with respect to the Liquidating Trust, including, without limitation, a determination pursuant to section 505 of the Bankruptcy Code;
(p) 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;
(q) 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 Claims in accordance with the terms of the Plan;
(th) comply with any duly issued and served subpoena upon seek estimation of contingent or unliquidated General Unsecured Claims under section 502(c) of the Liquidating Trust, the Plan Advisory Committee or the Liquidating TrusteeBankruptcy Code;
(ui) take seek determination of tax liability under section 505 of the Bankruptcy Code;
(j) prosecute, settle, dismiss, abandon or refrain from taking otherwise dispose of any and all other actions that the Liquidating Trustee, upon consultation with the Plan Advisory Committee, reasonably deems necessary or convenient for the continuation, protection and maximization Causes of Action of the Liquidating Debtors or their Estates constituting 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
(v) enter into all documents and agreements necessaryAssets, including, without limitation, a secured note agreementall Causes of Action arising under sections 510, 542 through 551 and 553 of the Bankruptcy Code in accordance with section 1123(b)(3)(B) of the Bankruptcy Code;
(k) pay all expenses and make other necessary payments relating to the Trust Assets; Assets;
(l) assert or waive any privilege or defense of the Debtors related to the Trust
(m) seek the examination of any entity under Bankruptcy Rule 2004;
(n) perform any and all acts necessary or appropriate for the conservation and protection of the Trust Assets;
(o) exercise all powers and rights, and grant take all applicable actions contemplated by or provided for under the Plan or this Liquidating Trust Agreement;
(p) withhold from amounts distributable to any Person or Entity any and all amounts required liens and/or security interests by any law, rule, regulation, ruling, directive, or other governmental requirement, or as otherwise provided herein, as determined by the Liquidating Trustee 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 comply a Final Decree, and file with the terms 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 conditions all other actions necessary or appropriate to implement or consummate the Plan and the provisions of the Term Sheet and/or any documents evidencing such terms and conditions (as they may be modified by agreement of the parties thereto) and any liens that may be granted in connection therewiththis Liquidating Trust Agreement.
Appears in 1 contract
Samples: Liquidating Trust Agreement
Authority of Liquidating Trustee. Subject to any limitations contained herein (including, without limitation, Article 4 hereof) or in the Plan, the Liquidating Trustee shall have 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, 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 704 and 1106 of the Bankruptcy Code, including, without limitation, commencing, prosecuting or settling causes of action, enforcing 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) in consultation with the Plan Advisory Committee, liquidate the assets transferred to the Liquidating Trust;
(e) in consultation with the Plan Advisory Committee, obtain reasonable insurance coverage with respect to the liabilities and obligations 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);
(f) 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, if any;
(g) in consultation with the Plan Advisory Committee, retain and 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 shall select to assist the Liquidating Trustee in his or her duties, on such terms as the Liquidating Trustee, after consultation with the Plan Advisory Committee, deems reasonable and appropriate, without Bankruptcy Court approval; 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;
(h) in consultation with the Plan Advisory Committee, retain and 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 as may be required by the SEC and applicable securities laws and as may be reasonable and appropriate in the Liquidating Trustee’s discretion and to prepare and file any tax returns, informational returns, or periodic or current reports as required by applicable securities laws, for the Liquidating Trust as may be required; 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;
(i) in consultation with the Plan Advisory Committee, retain and approve compensation arrangements of such third parties to assist the Liquidating Trustee in carrying out his or her powers and duties under this Liquidating Trust Agreement; 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 (provided that such indemnity shall not cover any losses, costs, damages, expenses or liabilities that result from the recklessness, gross negligence, willful misconduct, or knowing violation of law by such party);
(j) in consultation with the Plan Advisory Committee, waive any privilege (including the Privileges) or any defense on behalf of the Liquidating Trust or, with respect to the Liquidating Trust 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;
(k) in consultation with the Plan Advisory Committee, 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, all causes of action in favor of or against the Liquidating Trust; 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 De Minimis Claim or Cause of Action;
(l) in consultation with the Plan Advisory Committee, avoid and recover transfers of any or all of the Debtor’s property as provided for in the Plan, as may be permitted by the Bankruptcy Code or applicable state law;
(m) in consultation with the Plan Advisory Committee, coordinate with the Debtors, until the dissolution thereof, to execute offsets, assert counterclaims against 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;
(n) invest any moneys held as part of the Liquidating Trust in accordance with the terms of Section 3.19 hereof, limited, however, to such investments that are consistent with the Liquidating Trust’s status as a liquidating trust within the meaning of Treasury Regulation Section 301.7701-4(d) and in accordance with Rev. Proc 94-45, 1994-2 C.B. 684;
(o) in consultation with the Plan Advisory Committee, request any appropriate tax determination with respect to the Liquidating Trust, including, without limitation, a determination pursuant to section 505 of the Bankruptcy Code;
(p) 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;
(q) 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, 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
(v) enter into all documents and agreements necessary, including, without limitation, a secured note agreement, and grant all applicable and required liens and/or security interests to comply with the terms and conditions of the Term Sheet and/or any documents evidencing such terms and conditions (as they may be modified by agreement of the parties thereto) and any liens that may be granted in connection therewith.
Appears in 1 contract
Samples: Liquidating Trust Agreement
