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Exhibit 99.3
NTC LIQUIDATING TRUST AGREEMENT
This NTC Liquidating Trust Agreement ("Trust Agreement") is entered into
as of August 29, 1997, between Nuexco Trading Corporation (the "Debtor") and
Xxxxx X. Xxxxxxx, ("Liquidating Trustee").
RECITALS
a. On February 23, 1995, the Debtor filed a petition for reorganization
under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court
for the District of Colorado, which case is jointly administered under Case No.
95-11642-CEM.
b. On February 21, 1997, the Official Creditors' Committee of CSI
Enterprises, Inc. and Jointly-Administered Debtor (the "Committee") as
Proponent and Xxxx X. Xxxxxx, as Co-Proponent, filed a Modified First Amended
Plan of Reorganization for the Jointly Administered Debtor (the "Plan"). The
Bankruptcy Court entered its Confirmation Order confirming the Plan on August
18, 1997.
c. The Plan provides for the creation of a Liquidating Trust to hold the
Debtor's Assets (except as may otherwise be provided under the Plan), in trust
for the benefit of all Holders of Allowed Claims pursuant to the terms of the
Plan and this Trust Agreement. This Trust Agreement is executed in order to
establish the Liquidating Trust and to facilitate implementation of the Plan.
ARTICLE I.
DEFINITIONS
1.1 TERMS DEFINED HEREIN. As used in this Trust Agreement, all
capitalized terms defined herein shall have the meanings attributed to them as
set forth herein.
1.2 BENEFICIARIES shall mean all Holders of Allowed Claims.
1.3 OTHER DEFINED TERMS. Terms defined in the Plan, and not otherwise
specifically defined herein, shall, when used herein, have the meanings
attributed to them in the Plan. Terms defined in the Bankruptcy Code, and not
otherwise specifically defined in the Plan or herein, shall, when used herein,
have the meanings attributed to them in the Bankruptcy Code.
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ARTICLE II.
CREATION OF LIQUIDATING TRUST
2.1 DECLARATION OF TRUST. For good and valuable consideration, the
receipt whereof is hereby acknowledged by the undersigned, and pursuant to the
terms of the Plan, the Debtor executes this Trust Agreement and, subject to the
provisions of Section 2.2 below, irrevocably transfers, absolutely assigns,
conveys, sets over, and delivers to the Liquidating Trustee, and his successors
and assigns, all right, title and interest of the Debtor in and to the Assets
in trust to and for the benefit of the Beneficiaries for the uses and purposes
stated herein and in the Plan, except as may otherwise be specifically provided
by the Plan.
2.2 TRANSFER OF ASSETS. Transfer of the Debtor's Assets to the
Liquidating Trust pursuant to and in accordance with the Plan, shall be deemed
a transfer to and for the benefit of the Beneficiaries followed by a deemed
transfer by the Beneficiaries to the Liquidating Trust to hold in trust for the
benefit of the Beneficiaries, except as otherwise provided in the Plan or this
Trust Agreement. The Beneficiaries shall be treated as the grantors and deemed
owners of the Liquidating Trust. Except as otherwise provided by the Plan or
this Trust Agreement, upon the Effective Date of the Plan, title to the Assets
shall pass to the Liquidating Trust free and clear of all Claims and Interests,
in accordance with Section 1141 of the Bankruptcy Code, except for Liens on the
Assets held by Holders of Allowed Secured Claims (including Claims which become
Allowed Claims after the Effective Date). The Liquidating Trustee shall cause
a valuation to be made of the Assets and that valuation shall be used by the
Liquidating Trustee and the Beneficiaries for all federal income tax purposes
but shall not be binding on the Liquidating Trustee in regards to the
liquidation of the Assets. The Liquidating Trust shall not be permitted to
receive or retain cash or cash equivalents in excess of a reasonable amount to
meet Distributions and establish the reserves as provided herein and the Plan
or to maintain the value of the Assets during liquidation.
2.3 PURPOSE OF LIQUIDATING TRUST. The Liquidating Trust is created to
serve as a vehicle for the maintenance and preservation of the Assets for the
primary purpose of liquidating the Assets, with no objective to continue or
engage in the conduct of a trade or business, except to the extent reasonably
necessary to, and consistent with, the liquidating purpose of the Liquidating
Trust. In selling the Assets, or otherwise monetizing them, the Liquidating
Trustee shall use his best efforts, within a reasonable time frame, to maximize
the amount of Liquidation Proceeds derived therefrom.
2.4 OVERSIGHT COMMITTEE. As provided in the Plan, an Oversight Committee
shall be established and shall have the authority and responsibility to
supervise and review the activities and performance of the Liquidating Trustee,
and shall have the authority to remove and replace the Liquidating Trustee
pursuant to this Trust Agreement and the Plan. The Oversight Committee shall
have such further authority as may be specifically granted or necessarily
implied by the Plan. The Liquidating Trustee shall seek to accomplish the sale
or monetization of the Assets within a reasonable period of time to avoid undue
delay in Distribution to the Beneficiaries. The Liquidating Trustee shall
consult with the Oversight Committee on an ongoing basis to develop strategies
for Asset disposition.
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ARTICLE III.
LIQUIDATING TRUSTEE ACCEPTANCE
3.1 ACCEPTANCE OF LIQUIDATING TRUST. The Liquidating Trustee accepts the
Liquidating Trust imposed by this Trust Agreement and the Plan, and agrees to
perform upon and subject to the terms and conditions set forth herein and in
the Plan.
3.2 NAME OF TRUST. The Liquidating Trust established hereby shall bear
the name "NTC Liquidating Trust". In connection with the exercise of his
powers, authorities and duties as Liquidating Trustee, the Liquidating Trustee
may use such name or such variation thereon as he sees fit, or may use his own
name, as Liquidating Trustee.
ARTICLE IV.
RIGHTS, POWERS AND DUTIES OF LIQUIDATING TRUSTEE
4.1 STATUS OF LIQUIDATING TRUSTEE. On the Effective Date of the Plan, the
Liquidating Trustee shall be the representative of the Estate as that term is
used in 11 U.S.C. Section 1123(b)(3)(B) and shall have the rights and powers
provided for in the Bankruptcy Code in addition to any rights and powers
granted in this Trust Agreement and in the Plan. The Liquidating Trustee shall
be the successor-in-interest to the Debtor and the Committee with respect to
any Avoidance Action or any other Action commenced by the Debtor or the
Committee prior to the Confirmation Date and shall be deemed substituted for
the same as the party in such litigation. All such Avoidance Actions, Actions,
and other actions and any and all other claims, rights or interests
constituting Assets, shall be preserved, retained and enforced by the
Liquidating Trustee as the representative of the Estate pursuant to 11 U.S.C.
Section 1123(b)(3)(B). The Liquidating Trustee shall be a party-in-interest
as to all matters over which the Court has jurisdiction.
4.2 AUTHORITY. Subject to any limitations contained in, or as otherwise
provided by, this Trust Agreement or in the Plan, the Liquidating Trustee shall
have the following powers, authorities and duties, by way of the illustration
and not of limitation:
(a) Manage, sell and convert all or any portion of the Assets to
Cash and distribute the Net Distributable Proceeds as specified
in the Plan;
(b) Release, convey or assign any right, title or interest in or
about the Assets or any portion thereof;
(c) Pay and discharge any costs, expenses, professional fees or
obligations deemed necessary to preserve or enhance the value of
the Assets, discharge duties under the Plan or perform the
purpose of the Plan and this Trust Agreement;
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(d) Open and maintain bank accounts and deposit funds, draw checks
and make disbursements in accordance with the Plan and this
Trust Agreement;
(e) Except as otherwise provided in the Plan and this Trust
Agreement, engage and have such attorneys, accountants,
engineers, agents, tax specialists, financial advisors,
appraisers, investment bankers, other professionals, and clerical
and stenographic assistance as may, in the discretion of the
Liquidating Trustee, be deemed necessary;
(f) Xxx and be sued and file or pursue objections to Claims;
(g) Enforce, waive or release rights, privileges or immunities of
any kind;
(h) Vote any share or shares of stock and otherwise exercise the
rights appurtenant to ownership of such stock;
(i) In general, without in any manner limiting any of the foregoing,
or the following, deal with the Assets or any part or parts
thereof in all other ways as would be lawful for any person
owning the same to deal therewith, provided, however, that the
investment powers of the Liquidating Trustee, other than those
reasonably necessary to maintain the value of the assets of the
Liquidating Trust and to further the liquidating purpose of the
trust, are limited to the power to invest in demand and time
deposits, such as short-term certificates of deposit, in banks
and other savings institutions, or other temporary, liquid
investments, such as United States Treasury Bills;
(j) Institute or continue litigation, including Avoidance Actions,
which were or otherwise could have been brought by the Debtor
or Creditors' Committee on behalf of the Estate, and prosecute or
defend all litigation or appeals on behalf of the Estate and,
when appropriate, settle such actions and claims with the
approval of the Court after hearing on notice, provided that
without the prior consent of the Oversight Committee, the
Liquidating Trustee shall not enter into any settlement of any
Claim that results in an Allowed Claim of $100,000 or more;
(k) Obtain and pay for insurance coverage relative to the proper
performance of his duties under the Plan and this Trust
Agreement, and to indemnification for himself and others provided
for in the Plan, and this Trust Agreement;
(l) At the appropriate time, ask the Court to enter the Final Decree;
and
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(m) Without limitation, do any and all things necessary to accomplish
the purposes of the Plan and this Trust Agreement.
4.3 SEPARATE TRUST FUNDS. After giving effect to the provisions of
Section 6.1 of the Plan, the Assets for each Debtor Estate shall be held by the
Liquidating Trustee in separate and segregated Trust Funds for the benefit of
the Creditors of such Debtor, all of which in the aggregate constitute the
Liquidating Trust.
4.4 EXPENSES. The Liquidating Trustee is authorized to pay obligations or
expenses of, or relating to, the Assets, or to Claims against the Estate, only
when the Liquidating Trustee, in his reasonable discretion, deems it to be in
the best interests of the Holders of Allowed General Unsecured Claims or
necessary to effectuate the Plan. Expenses and Claims shall be paid only by
the Trust Fund which incurred the expense or liability. In the event the
expense or liability cannot be clearly allocated to one Trust Fund, the
Liquidating Trustee, in consultation with the Oversight Committee, shall make
an equitable allocation including such allocation to, or on behalf of the
Energy Fuels Trust Funds as is appropriate.
4.5 PAYMENT OF ENERGY FUELS SUBSIDIARY CREDITOR CLAIMS. Prior to making
any Distribution, or payments to Holders of Administrative Claims, the
Liquidating Trustee shall pay all Energy Fuels Subsidiary Creditor Claims,
unless such Claim was assumed by the Purchaser and/or constitutes a Permitted
Encumbrance under the Plan. In the exercise of reasonable business judgement,
the Liquidating Trustee may also establish the Energy Fuels Subsidiary Creditor
Reserve; provided, however, that nothing in the Plan or this Trust Agreement
shall prevent the Liquidating Trustee from seeking an order from the Court,
after Notice and Hearing, approving the amount of the Energy Fuels Subsidiary
Creditors Reserve after which all rights of Energy Fuels Subsidiary Creditors
shall be limited solely against such reserve in accordance with the Plan.
4.6 DISTRIBUTIONS. The Liquidating Trustee shall make Distributions
pursuant to and in accordance with the Plan. The Liquidating Trustee may
affect such Distributions by causing one or more of Debtor's Affiliates to make
such Distributions directly to the Beneficiaries, if the Liquidating Trustee
deems such approach to be in the best interest of Creditors.
4.7 STATEMENTS. The Liquidating Trustee shall deliver each member of the
Oversight Committee a statement within ten (10) Business Days after the end of
each calendar quarter showing (i) all receipts and disbursements of the
Liquidating Trust (including each of the Reserves) during such quarter, and
(ii) the amount of (A) Available Cash and (B) each of the Reserves, in each
case at the beginning and end of such quarter, such statement to be certified
by the Liquidating Trustee as being true and accurate in all material respects.
To the extent practical, the statements shall provide separate information for
each Trust Fund.
4.8 TAX RETURNS/TAX MATTERS.
(a) The Liquidating Trustee shall file all tax returns and other
filing with governmental authorities on behalf of the Liquidating
Trust and the assets
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it holds, including tax returns for the Liquidating Trust as a
grantor trust pursuant to Section 1.671-4(a) of the United States
Income Tax Regulations. The Liquidating Trustee shall provide
such information to the Beneficiaries as will enable them to
properly file their separate tax returns and withhold and pay
over any amounts required by tax law.
(b) The Liquidating Trustee is authorized to act as agent for the
Estate in withholding or paying over any amounts required by law
(including tax law) to be withheld or paid by the Estate in
connection with the transfer and assignment of the Assets to the
Liquidating Trust pursuant to the Plan.
(c) Except as otherwise set forth in this Trust Agreement or the
Plan, any items of income, deduction, credit, or loss of the
Trust shall be allocated for federal income tax purposes among
the Beneficiaries pro rata on the basis of their beneficial
interests; provided, however, that to the extent that any item of
income cannot be allocated in the taxable year in which it
arises, the Trust shall pay the federal, state and local taxes
attributable to such income (net of related deductions) and the
amount of such taxes shall be treated as having been received by,
and paid on behalf of the Beneficiaries when such allocations are
made.
4.9 ENGAGEMENT OF PROFESSIONALS. The Liquidating Trustee shall obtain the
approval of the Oversight Committee prior to retention and engagement of any
professional. Such approval shall not be unreasonably delayed or withheld.
The fees and expenses of such professionals shall be paid from the Operating
Reserve as provided in the Plan.
4.10 ESTABLISHMENT OF RESERVES. The Liquidating Trustee shall establish,
on the Effective Date of the Plan, or as soon thereafter as is practicable, out
of the Effective Date Cash, the Operating Reserve, the Professional Fee
Application Reserve, and the Disputed Senior Claims Reserve in accordance with
and pursuant to the terms of the Plan. The Liquidating Trustee may also
establish the Energy Fuels Subsidiary Creditor Reserve pursuant to and in
accordance with the Plan.
4.11 WITHHOLDING TAXES. The Liquidating Trustee shall be entitled to
deduct any federal or state withholding taxes from any payments made with
respect to Allowed Claims, as appropriate, and shall otherwise comply with
Section 346 of the Bankruptcy Code.
4.12 RESOLVING DISPUTED CLAIMS. After the Effective Date, objections to
Claims shall be made, and objections to Claims made previous thereto shall be
pursued, only by the Liquidating Trustee, in consultation with the Oversight
Committee in accordance with and pursuant to the terms of the Plan. Any
objections made by the Liquidating Trustee shall be
served and filed not later than 180 days after the Effective Date of the Plan;
provided that, such period may be extended by order of the Court for good cause
shown. After the Effective Date, the Liquidating Trustee, with the approval of
the Oversight Committee, may settle any Class 4 Claim where the proposed
Allowed Amount is to be less than $100,000 without Notice and a
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Hearing and without an order of the Court. All other settlements shall be
subject to Notice and a Hearing and a Final Order of the Court approving the
settlement. Ten days notice (plus three days if service is made by first class
mail) shall be adequate for any Claims settlement.
4.13 ABANDONMENT. With the prior consent of the Oversight Committee, and
pursuant to the Plan, the Liquidating Trustee may abandon, on notice to such
parties as are entitled to the same, any property which he determines in his
reasonable discretion to be of de minimis value to the Liquidating Trust,
including any pending adversary proceeding or other legal action commenced or
commenceable by the Liquidating Trust.
4.14 APPOINTMENT AS ATTORNEY-IN-FACT. To assure that all instruments of
transfer and other documents are duly executed on behalf of the Estate, in the
event the Debtor fails to cooperate, the Liquidating Trustee shall, on the
Effective Date of the Plan, be deemed by operation of law and the Confirmation
Order and without the need for any action by Xxxxxx or any other person
affiliated with the Debtor or any officer or director of such Persons or
Entities, to hold an irrevocable power-of-attorney on behalf of the Estate with
respect to the Estate and all Assets therein.
4.15 EXECUTORY CONTRACTS AND UNEXPIRED LEASES. The Liquidating Trustee
shall assume, assume and assign, or reject executory contracts and unexpired
leases, including but not limited to the Uranium Contracts, pursuant to and in
accordance with the Plan.
4.16 CORPORATE OFFICERS. For any Affiliate, other than an individual,
which is controlled by a Debtor and which is not a Debtor, the officers,
directors, or other persons with authority to act on behalf thereof shall,
pursuant to the Plan, continue on and after the Effective Date to hold such
office and to exercise such authority; provided that the Liquidating Trustee
may terminate such officers, directors, or other Persons with authority in his
sole discretion and may designate others to fill such positions and exercise
all authority on behalf of such Affiliate.
4.17 FURTHER AUTHORIZATION. The Liquidating Trustee and the Oversight
Committee shall be entitled to seek such orders, judgements, injunctions and
rulings as they deem necessary to carry out the intentions and purposes, and to
give full effect to the provisions, of the Plan and this Trust Agreement.
4.18 PREPARATION OF ESTATE RETURNS. Pursuant to and in accordance with
the Plan, the Liquidating Trustee shall be responsible for all tax matters of
the Estate, including, but not limited to, the filing of all tax returns and
other filing with governmental authorities on behalf of the Estate for time
periods ending on or before the Final Tax Day, the filing of determination
requests under Section 505(b) of the Bankruptcy Code, and responding to any tax
audits of the Estate.
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ARTICLE V.
THE LIQUIDATING TRUSTEE
5.1 GENERAL INDEMNIFICATION. The Liquidating Trust shall indemnify and
hold harmless any Person or Entity who was, or is, a party, or is threatened to
be made a party, to any pending or contemplated action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that such Person or Entity is or was the Liquidating Trustee or a member of the
Oversight Committee, or an agent, attorney, accountant or other professional
for the Liquidating Trustee or the Oversight Committee, against all costs,
expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by such entity in connection with such action, suit or
proceeding, or the defense or settlement of any claim, issue or matter therein,
to the fullest extent, except to the extent such liability is determined to be
the result of willful misconduct or gross negligence. Costs or expenses
incurred by any such entity in defending any such action, suit or proceeding
may be paid by the Liquidating Trust in advance of the institution or final
disposition of such action, suit or proceeding, if authorized by the
Liquidating Trustee and the Oversight Committee. The Liquidating Trustee may
in his discretion purchase and maintain insurance on behalf of any Person or
Entity who is or was a beneficiary of this provision.
5.2 NO RECOURSE. Except as provided in the Plan and this Trust Agreement,
no recourse shall ever be had, directly or indirectly, against the Liquidating
Trustee personally, or against any agent, attorney, accountant or other
professional for the Liquidating Trustee, by legal or equitable proceedings, or
by virtue of any statute or otherwise, nor upon any promise, contract,
instrument, undertaking, obligation, covenant or agreement whatsoever executed
by the Liquidating Trustee under the Plan, this Trust Agreement, or by reason
of the creation of any indebtedness by the Liquidating Trustee under the Plan
or this Trust Agreement for any purpose authorized by the Plan or this Trust
Agreement, it being expressly understood and agreed that all such liabilities,
covenants, and agreements shall be enforceable only against and be satisfied
only out of the Assets or such part thereof as shall under the terms of any
such agreement be liable therefor or shall be evidence only of a right of
payment out of the Assets.
5.3 LIMITED LIABILITY. The Liquidating Trustee shall not be liable for
any act he may do or omit to do while acting in good faith in the exercise of
his best judgment, and the fact that such act or omission was advised by an
authorized attorney for the Liquidating Trustee, shall be evidence of such good
faith and best judgment; nor shall the Liquidating Trustee be liable in any
event, except to the extent determined to be the result of his own gross
negligence or willful misconduct.
5.4 NO LIABILITY FOR ACTS OF PREDECESSOR. No successor Liquidating
Trustee shall be in any way responsible for the acts or omissions of any
Liquidating Trustee in office prior to the date on which such Person or Entity
becomes the Liquidating Trustee, nor shall he be obligated to inquire into the
validity or propriety of any such act or omission unless such successor
Liquidating Trustee expressly assumes such responsibility. Any successor
Liquidating Trustee shall be entitled to accept as conclusive any final
accounting and statement of Liquidating Trust Assets furnished to such
successor Liquidating Trustee by such predecessor Liquidating Trustee
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and shall further be responsible only for those Liquidating Trust Assets
included in such statement.
5.5 NO IMPLIED OBLIGATIONS. No other or further covenants or obligations
shall be implied into this Trust Agreement. The Liquidating Trustee shall not
be responsible in any manner whatsoever for the correctness of any recital,
statement, representation, or warranty herein, or in any documents or
instrument evidencing or otherwise constituting a part of the Liquidating Trust
Assets.
5.6 RESIGNATION OR REMOVAL. The Liquidating Trustee may resign at any
time by giving at least thirty (30) days' written notice to the members of the
Oversight Committee, provided that the Liquidating Trustee shall continue to
serve until the appointment of the successor Trustee is effective. If the
Oversight Committee at any time desires to terminate the appointment of the
Liquidating Trustee, the Oversight Committee may do so by written instrument
addressed to the Liquidating Trustee. In case of the resignation, removal or
death of the Liquidating Trustee, a successor shall thereupon be appointed by
the Oversight Committee pursuant to and in accordance with the provisions of
the Plan.
5.7 COMPENSATION. The Liquidating Trustee shall be compensated for
services in the administration of the Liquidating Trust in an amount and upon
any reasonable terms agreed upon between The Liquidating Trustee and the
Oversight Committee, without the approval of the Court. The compensation of
the Liquidating Trustee shall be equitably allocated by the Liquidating
Trustee, in consultation with the Oversight Committee, to the Trust Funds.
ARTICLE VI.
TERMINATION
The Liquidating Trust shall terminate at such time as the Assets have been
sold or distributed and claims pursued or abandoned pursuant to and in
accordance with the Plan and this Trust Agreement, but in any event, no later
than five (5) years from the date first written above, provided, that if
warranted by the facts and circumstances, and subject to the approval by the
Court upon a finding that the extension is necessary to the liquidating purpose
of the Liquidating Trust, the term may be extended for a finite term based on
the particular facts and circumstances. Each such extension must be approved
by the Court within six months of the beginning of the extended term.
ARTICLE VII.
MISCELLANEOUS
7.1 NOTICES. All notices, requests or other communications required or
permitted to be made in accordance with this Trust Agreement and the Plan,
shall be in writing and shall be delivered personally or by telex or other
telegraphic means or mailed by first class mail to the address set forth on the
signature line of such party with a copy to Xxxx X. Xxxxxx and Xxxxx X.
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Huemoeller, LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P., 000 Xxxxxxxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxx, Xxxxxxxx, 00000.
7.2 EFFECTIVENESS. This Trust Agreement shall become effective upon the
Effective Date of the Plan.
7.3 COUNTERPARTS. This Trust Agreement may be executed in one or more
counterparts, all of which shall be taken together to constitute one and the
same instrument.
7.4 GOVERNING LAW. Except to the extent the Bankruptcy Code or the
Bankruptcy Rules are applicable, this Trust Agreement shall be governed by,
construed under and interpreted in accordance with, the laws of the State of
Colorado.
7.5 HEADINGS. Sections, subheadings and other headings used in this Trust
Agreement are for convenience only and shall not limit or otherwise affect the
meaning and construction of this Trust Agreement.
7.6 SEVERABILITY. Any provision of this Trust Agreement which is
prohibited or unenforceable in any jurisdiction shall not invalidate the
remaining provisions hereof, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable any such
provision in any other jurisdiction.
7.7 ENTIRE AGREEMENT. This Trust Agreement (including the Recitals), the
Plan, and the Confirmation Order constitute the entire agreement by and among
the parties and there are no representations, warranties, covenants or
obligations except as set forth herein or therein. This Trust Agreement, the
Plan and the Confirmation Order supersede all prior and contemporaneous
agreements, understandings, negotiations, discussions, written or oral, of the
parties hereto, relating to any transaction contemplated hereunder. Except as
otherwise specifically provided herein, in the Plan or in the Confirmation
Order, nothing in this Trust Agreement is intended or shall be construed to
confer upon or to give any person other than the parties thereto and their
respective heirs, administrators, executors, successors, or assigns any right
to remedies under or by reason of this Trust Agreement.
7.8 EFFECT OF DEATH, INCAPACITY OR BANKRUPTCY OF BENEFICIARY. The Death,
incapacity or bankruptcy of a Beneficiary during the terms of this Trust
Agreement shall not operate to terminate the Trust Agreement, nor shall it
entitle the representatives or creditors of the deceased Beneficiary to an
accounting, or to take any action in the courts or elsewhere for the
distribution of the Assets or for a partition thereof, nor shall it otherwise
affect the rights and obligations of any Beneficiary.
7.9 EFFECT OF TRUST ON THIRD PARTIES. There is no obligation on the part
of any purchaser or purchasers from the Liquidating Trustee or any agent of the
Liquidating Trustee, or on the part of any other persons dealing with the
Liquidating Trustee or any agent of the Liquidating Trustee, to see to the
application of the purchase money or other consideration passing to the
Liquidating Trustee or any agent of the Liquidating Trustee, or to inquire into
the
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validity, expediency or propriety of any such transaction by the Liquidating
Trustee or any agent of the Liquidating Trustee.
7.10 WAIVER. No failure or delay of any party to exercise any right or
remedy pursuant to this Trust Agreement shall affect such right or remedy or
constitute a waiver by such party of any right or remedy pursuant thereto.
Resort to one form of remedy shall not constitute a waiver of alternative
remedies.
7.11 RELATIONSHIP CREATED. The only relationship created by this Trust
Agreement is the relationship between the Liquidating Trustee and the
Beneficiaries. No other relationship or liability is created. Nothing
contained in this Trust Agreement shall be construed so as to construe the
Beneficiaries or their successors-in-interest as creating an association,
partnership, or joint venture of any kind.
7.12 TAX IDENTIFICATION NUMBERS. The Liquidating Trustee may require any
Beneficiary to furnish to the Liquidating Trustee, its employer or tax payer
identification number as assigned by the Internal Revenue Service and the
Liquidating Trustee may condition any distribution to any Beneficiary upon
receipt of such identification number.
7.13 AMENDMENT OF TRUST AGREEMENT. This Trust Agreement may be amended,
modified or altered only upon approval of the Oversight Committee.
IN WITNESS WHEREOF, the parties hereto have executed this Trust Agreement
or caused this Trust Agreement to be duly executed by their respective officers
thereunto duly authorized as of the day and year first written above.
LIQUIDATING TRUSTEE:
By:
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Xxxxx X. Xxxxxxx
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[Address]
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NUEXCO TRADING CORPORATION
By:
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Its:
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[Address]
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