Exhibit 3.1
LIQUIDATING TRUST AGREEMENT
BY AND AMONG
THE TRANSFERORS
XXXXXXX X. XXXXXX, XX.,
AS LIQUIDATING TRUSTEE
XXXX X. XXXXXXX,
AS A BOARD MEMBER
XXXXXXX X. XXXX,
AS A BOARD MEMBER
XXXX X. XXXXXX,
AS A BOARD MEMBER
XXXXXXX X. XXXXX,
AS A BOARD MEMBER
AND
XXXX X. XXXXXXXXX,
AS A BOARD MEMBER
DATED
JANUARY 22, 2001
TABLE OF CONTENTS
Page No.
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ARTICLE I DEFINITIONS...................................................... 2
SECTION 1.01 DEFINITIONS.............................................. 2
SECTION 1.02 RULES OF CONSTRUCTION.................................... 5
ARTICLE II ORGANIZATION.................................................... 6
SECTION 2.01 NAME..................................................... 6
SECTION 2.02 OFFICE................................................... 6
SECTION 2.03 DECLARATION OF TRUST..................................... 6
SECTION 2.04 APPOINTMENT OF LIQUIDATING TRUSTEE....................... 6
SECTION 2.05 ACCEPTANCE OF TRUST...................................... 6
SECTION 2.06 TAX TREATMENT OF TRUST................................... 7
SECTION 2.07 CONVEYANCE OF ASSETS AND VALUATION....................... 7
SECTION 2.08 NATURE AND PURPOSE OF THE TRUST.......................... 7
SECTION 2.09 INCORPORATION OF PLAN.................................... 8
SECTION 2.10 STATUS OF LIQUIDATING TRUSTEE............................ 8
ARTICLE III BENEFICIARIES.................................................. 8
SECTION 3.01 RIGHTS OF BENEFICIARIES.................................. 8
SECTION 3.02 LIMIT ON TRANSFER OF INTERESTS OF BENEFICIARIES.......... 8
SECTION 3.03 NO LEGAL TITLE IN BENEFICIARIES.......................... 9
SECTION 3.04 MEETINGS OF BENEFICIARIES................................ 9
ARTICLE IV THE LIQUIDATING TRUSTEE......................................... 12
SECTION 4.01 APPOINTMENT AND TENURE OF LIQUIDATING TRUSTEE............ 12
SECTION 4.02 TENURE, REMOVAL, AND REPLACEMENT OF THE LIQUIDATING
TRUSTEE................................................. 12
SECTION 4.03 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR LIQUIDATING
TRUSTEE................................................. 13
SECTION 4.04 REGULAR MEETINGS OF THE LIQUIDATING TRUSTEE AND THE
LIQUIDATING TRUST BOARD................................. 13
SECTION 4.05 SPECIAL MEETINGS OF THE LIQUIDATING TRUSTEE.............. 13
SECTION 4.06 NOTICE OF, AND WAIVER OF NOTICE FOR, LIQUIDATING TRUSTEE
AND LIQUIDATING TRUST BOARD............................. 14
SECTION 4.07 LIQUIDATING TRUSTEE, MANNER OF ACTING.................... 14
SECTION 4.08 AUTHORITY................................................ 14
SECTION 4.09 APPROVAL OF LIQUIDATING TRUST BOARD AND BANKRUPTCY COURT. 17
SECTION 4.10 DISPUTE RESOLUTION....................................... 18
SECTION 4.11 REPORTING OF ASSET SALES................................. 18
SECTION 4.12 AUTHORITY WITH RESPECT TO AVOIDANCE ACTIONS AND
LITIGATION CLAIMS....................................... 18
SECTION 4.13 COMPENSATION AND REIMBURSEMENT OF LIQUIDATING TRUSTEE,
LIQUIDATING TRUST BOARD AND PROFESSIONALS............... 18
SECTION 4.14 NO IMPLIED OBLIGATIONS................................... 19
SECTION 4.15 UNKNOWN PROPERTY AND LIABILITIES......................... 19
ARTICLE V ADMINISTRATION OF THE TRUST...................................... 19
SECTION 5.01 DISTRIBUTIONS............................................ 19
SECTION 5.02 ACCOUNTS; ELIGIBLE INVESTMENTS........................... 19
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Page No.
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SECTION 5.03 DEPOSITS INTO ACCOUNTS................................... 20
SECTION 5.04 DISTRIBUTIONS FROM THE COLLECTION ACCOUNT................ 21
SECTION 5.05 DISTRIBUTIONS FROM THE DISTRIBUTION RESERVE.............. 21
SECTION 5.06 DISTRIBUTIONS TO THE HOLDERS OF ALLOWED INVESTOR CLAIMS.. 21
SECTION 5.07 DISTRIBUTION TO THE HOLDERS OF GENERAL UNSECURED CLAIMS.. 23
SECTION 5.08 DISTRIBUTIONS OF THE NET LITIGATION RECOVERY............. 23
SECTION 5.09 DISTRIBUTIONS OF THE TRUST/XXX LITIGATION RECOVERY....... 23
SECTION 5.10 DELIVERY OF DISTRIBUTIONS................................ 23
SECTION 5.11 OPERATING EXPENSES....................................... 24
SECTION 5.12 FINAL DISTRIBUTION....................................... 24
SECTION 5.13 DE MINIMIS DISTRIBUTIONS................................. 24
SECTION 5.14 REPORTS.................................................. 25
SECTION 5.15 TAX AND OTHER REPORTS TO BENEFICIARIES................... 25
SECTION 5.16 TAX RETURNS/TAX MATTERS.................................. 25
SECTION 5.17 ALLOCATIONS.............................................. 26
SECTION 5.18 LIMITATIONS ON LIQUIDATING TRUSTEE....................... 26
SECTION 5.19 ABANDONMENT.............................................. 26
SECTION 5.20 FURTHER AUTHORIZATION.................................... 26
SECTION 5.21 PROTECTION OF PERSONS DEALING WITH THE LIQUIDATING
TRUSTEE................................................. 27
ARTICLE VI LIQUIDATING TRUST BOARD......................................... 27
SECTION 6.01 LIQUIDATING TRUST BOARD.................................. 27
SECTION 6.02 MANNER OF ACTING......................................... 27
SECTION 6.03 LIQUIDATING TRUST BOARD'S ACTION WITHOUT A MEETING....... 28
SECTION 6.04 TENURE, REMOVAL, AND REPLACEMENT OF THE MEMBERS OF THE
LIQUIDATING TRUST BOARD................................. 28
ARTICLE VII DURATION OF TRUST.............................................. 29
SECTION 7.01 DURATION OF TRUST........................................ 29
SECTION 7.02 CONTINUANCE OF TRUST FOR WINDING UP...................... 29
ARTICLE VIII INDEMNIFICATION; LIMITATIONS ON LIABILITY..................... 30
SECTION 8.01 GENERAL INDEMNIFICATION.................................. 30
SECTION 8.02 NO RECOURSE.............................................. 30
SECTION 8.03 LIMITED LIABILITY........................................ 31
SECTION 8.04 NO LIABILITY FOR ACTS OF PREDECESSOR..................... 31
SECTION 8.05 LIMITATION ON LIABILITY OF LIQUIDATING TRUST BOARD....... 31
SECTION 8.06 EXPRESS EXCULPATORY CLAUSES IN INSTRUMENTS............... 31
ARTICLE IX MISCELLANEOUS PROVISIONS........................................ 32
SECTION 9.01 NOTICES.................................................. 32
SECTION 9.02 EFFECTIVENESS............................................ 32
SECTION 9.03 COUNTERPARTS............................................. 32
SECTION 9.04 GOVERNING LAW............................................ 33
SECTION 9.05 SEVERABILITY OF PROVISIONS............................... 33
SECTION 9.06 ENTIRE AGREEMENT......................................... 33
SECTION 9.07 EFFECT OF DEATH, INCAPACITY OR BANKRUPTCY OF
BENEFICIARY............................................. 33
SECTION 9.08 EFFECT OF TRUST ON THIRD PARTIES......................... 33
SECTION 9.09 WAIVER................................................... 33
SECTION 9.10 RELATIONSHIP CREATED..................................... 34
SECTION 9.11 TAX IDENTIFICATION NUMBERS............................... 34
SECTION 9.12 AMENDMENT OF TRUST AGREEMENT............................. 34
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EXHIBITS
EXHIBIT A PLAN
EXHIBIT B CONFIRMATION ORDER
SCHEDULES
SCHEDULE 1 LIST OF CHAPTER 11 AFFILIATES
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LIQUIDATING TRUST AGREEMENT
This Liquidating Trust Agreement and Declaration of Trust (the "Trust
Agreement") is entered into as of January 22, 2001, by and among the Debtors and
the Non-Debtor Affiliates listed on the signature pages of this Trust Agreement,
as transferors (the "Transferors"), Xxxxxxx X. Xxxxxx, Xx., as trustee (the
"Liquidating Trustee") and Xxxx X. Xxxxxxx, Xxxxxxx X. Xxxx, Xxxx X. Xxxxxx,
Xxxxxxx X. Xxxxx, and Xxxx X. Xxxxxxxxx, as members of the Liquidating Trust
Board appointed pursuant to the Plan (the "Liquidating Trust Board").
RECITALS
A. On November 9, 1999, Baptist Foundation of Arizona ("BFA"), Arizona
Southern Baptist New Church Ventures, Inc. ("NCV"), A.L.O., Inc. ("ALO"),
E.V.I.G., Inc. ("EVIG"), and their subsidiaries and affiliates that are listed
on Schedule 1 attached hereto (the "Chapter 11 Affiliates" and, together with
BFA, NCV, ALO and EVIG, the "Debtors") filed voluntary petitions for relief
under Chapter 11 of Title 11 of the United States Code (the "Bankruptcy Code")
in the United States Bankruptcy Court for the District of Arizona (the
"Bankruptcy Court"). The Chapter 11 cases are being jointly administered under
Case No. 99-13275-PHX-GBN (the "Chapter 11 Cases").
B. On September 25, 2000, the Debtors filed in the Chapter 11 Cases their
"Joint Plan of Reorganization of the Debtors under Chapter 11 of the Bankruptcy
Code" (hereinafter referred to together with any and all Bankruptcy Court
approved amendments, as the "Plan"). The Bankruptcy Court entered its Order
confirming the Plan (the "Confirmation Order") on December 22, 2000. Copies of
the Plan and the Confirmation Order are attached hereto as Exhibit "A" and "B"
respectively, and are by this reference incorporated herein.
C. Pursuant to the Plan, the Debtors have been substantively consolidated
with and into BFA pursuant to the Confirmation Order, and in accordance with the
Plan, the Non-Debtor Affiliates will transfer their Assets to the Trust.
D. The Plan provides for the creation of a liquidating trust which will (i)
receive from the Debtors and Non-Debtor Affiliates all of their respective
Assets transferred pursuant to the Plan, (ii) hold the Assets of the Debtors and
Non-Debtor Affiliates (except as may otherwise be provided under the Plan) in
trust for the benefit of all Beneficiaries and (iii) oversee and direct the
liquidation of the Trust Assets held by it and by the Platform Subsidiaries for
the benefit of the Beneficiaries pursuant to the terms of the Plan and this
Trust Agreement. This Trust Agreement is executed to establish the Trust and to
facilitate implementation of the Plan.
E. The primary purpose of the Trust is to (i) oversee and direct the
liquidation the Trust Assets for the benefit of the Beneficiaries in accordance
with Treasury Regulation Section 301.7701-4(d) and (ii) distribute any proceeds
of the Trust Assets received by the Trust to the Beneficiaries. The Trust will
not be operated with the objective of continuing or engaging in the conduct of a
trade or business, except to the extent reasonably necessary to preserve or
enhance the liquidation value of the Trust Assets, and consistent with the
liquidating purpose of the Trust.
F. This Trust is intended to qualify as a "grantor trust" for federal
income tax purposes and the Liquidating Trustee shall operate and maintain the
Trust in compliance with the guidelines for liquidating trusts as set forth in
Internal Revenue Service Revenue Procedure 94-45, 1994-2 C.B. 684, and Treasury
1
Regulation Section 1.671-4(a) and all subsequent guidelines regarding
liquidating trusts issued by the Internal Revenue Service.
ARTICLE I
DEFINITIONS
Section 1.01 DEFINITIONS. For purposes of this Trust Agreement, unless the
context otherwise requires, the following terms will have the definitions
indicated below, all of which definitions are substantive terms of this Trust
Agreement. Capitalized terms used in this Trust Agreement that are not otherwise
defined herein have the meanings ascribed to them in the Plan or in the
Bankruptcy Code, as appropriate. Defined terms include, as appropriate, all
genders and the plural as well as the singular.
"Accounts" means the Collection Account, the Litigation Account, the
Trust/XXX Account, the Distribution Reserve and the Holding Account.
"Assets" means each and every item of property and interests of the Debtors
and the Non-Debtor Affiliates as of the Effective Date, whether tangible or
intangible, real or personal, legal or equitable, liquidated or unliquidated,
including, without limitation: (a) Cash; (b) any amounts owed to one or more of
the Debtors and Non-Debtor Affiliates, including accounts receivable and
contract rights; (c) all of the Debtors' and Non-Debtor Affiliates' books and
records; (d) all contracts, agreements, licenses and leases of the Debtors and
Non-Debtor Affiliates; and (e) any Avoidance Actions, Litigation Claims and
rights under any D&O Policy.
"Beneficiaries" means the holders of Claims that are Allowed Claims and
their permitted transferees as the same shall appear in the records of the
Liquidating Trustee, from time to time; provided, however, that upon the payment
in full in accordance with the Plan of the holder of an Allowed Claim (other
than a holder of an Allowed Investor Claims), such holder shall cease to be a
Beneficiary of the Trust.
"Business Day" means any day other than a Saturday, a Sunday or a day on
which national banking associations or state banking institutions in New York,
New York, Phoenix, Arizona or the city in which the Corporate Trust Office of
the Liquidating Trustee is located are authorized or obligated by law or
executive order or governmental decree to be closed.
"Cause" means a termination of the Liquidating Trustee or a member of the
Liquidating Trust Board which is a result of (i) such person's felony
conviction, (ii) such person's continued action or conduct that impedes or
impairs the effective operation and management of the Trust or (iii) such
person's willful and continued failure to substantially perform its duties in
accordance with the Trust Agreement (other than any such failure resulting from
such person's incapacity due to physical or mental illness or any such actual or
anticipated failure resulting from a resignation by such person) after written
demand for substantial performance is delivered to such person by the
Liquidating Trust Board or the Liquidating Trustee, which demand specifically
identifies the manner in which the Liquidating Trust Board or the Liquidating
Trustee believes that such person has not substantially performed or will be
unable to substantially perform his/her duties, and which performance is not
substantially corrected by such person within ten (10) days of receipt of such
demand. For purposes of the previous sentence, no act or failure to act on the
Liquidating Trustee's or a member of the Liquidating Trust Board's part shall be
deemed "willful" unless done, or omitted to be done, by such person not in good
faith and without reasonable belief that such person's action or omission was in
the best interest of the Trust.
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"Collection Account" has the meaning ascribed thereto in Section
5.02(a)(i).
"Corporate Trust Office" means 0000 Xxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000.
"Distribution Date" means the last Business Day of each calendar quarter;
PROVIDED, HOWEVER, that a Distribution Date will not be deemed to occur on any
day on which there is less than $5,000,000 in Net Distributable Cash except on
the Final Distribution Date; PROVIDED, FURTHER, that the Liquidating Trustee may
in its sole discretion make distributions in addition to, or in lieu of,
distributions to be made on each Distribution Date.
"Distribution Reserve" has the meaning ascribed thereto in Section
5.02(a)(iv).
"Eligible Institution" means a depository institution organized under the
laws of the United States of America or any one of its states or the District of
Columbia, the deposits in which are insured by the Federal Deposit Insurance
Corporation and that maintains a short-term unsecured debt rating of at least
"A-1" by S&P or "P-1" by Moody's. Notwithstanding the foregoing, an institution
that has corporate trust powers and that maintains the Collection Account or any
other account maintained for the benefit of the Beneficiaries as a fully
segregated trust account with the trust department of the institution shall not
be required to meet the foregoing rating requirements and need only maintain a
long-term unsecured debt rating of at least "Baa3" by Moody's or at least "BBB-"
by S&P.
"Eligible Investments" means book-entry securities entered on the books of
the applicable registrar and held in the name of the Liquidating Trustee or its
nominee and negotiable instruments or securities represented by instruments in
bearer or registered form (registered in the name of the Liquidating Trustee or
its nominee) that evidence:
(a) direct obligations of, or obligations fully guaranteed as to
timely payment by, the United States of America or any agency
thereof;
(b) certificates of deposit (having original maturities of no more
than 270 days) of depository institutions or trust companies
incorporated under the laws of the United States of America or
any one of its states (or domestic branches of foreign banks),
subject to supervision and examination by federal or state
banking or depository institution authorities, and having, at the
time of the Trust's investment or contractual commitment to
invest therein, the highest short-term unsecured debt rating from
either S&P or Moody's;
(c) commercial paper (having original maturities of no more than 270
days) having, at the time of the Trust's investment or
contractual commitment to invest therein, the highest short-term
rating from either S&P or Moody's;
(d) notes (having original maturities of no more than 270 days)
issued by any depository institution or trust company described
in clause (b) above;
(e) except for the Collection Account, bank time deposit and demand
deposit accounts (having original maturities of no more than 270
days) of depository institutions or trust companies incorporated
under the laws of the United States of America or any one of its
states (or domestic branches of foreign banks), subject to
supervision and examination by federal or state banking or
depository institution authorities, and having, at the time of
the Issuer's investment or contractual commitment to invest
3
therein, the highest short-term unsecured debt rating from either
S&P or Moody's; or
(f) shares of entities (rated at least "AAAm" by S&P or at least
"Aaa" by Moody's), commonly known as "money market" mutual funds
or investment funds, the assets of which consist solely of the
types of investments described in clauses (a) through (e) above.
Notwithstanding the foregoing, securities that meet the following criteria
are not Eligible Investments: (a) any security to which S&P has attached the
symbol "r" in its rating and (b) any security that contains a noncredit risk
that the symbol "r" was intended to highlight, whether or not the security is
rated.
"Exchange Act" means the United State Securities Exchange Act of 1934, as
amended.
"Final Decree" has the meaning ascribed thereto in Section 7.01.
"Final Distribution Date" means the Distribution Date on which the
Liquidating Trustee distributes the remaining proceeds of the Trust Assets
immediately prior to the dissolution of the Trust.
"Fiscal Year" means the calendar year which, unless otherwise provided by
the Liquidating Trustee, will be the Trust's tax and accounting reporting
period.
"Holding Account" has the meaning ascribed thereto in Section 5.02(a)(v).
"Independent Board Member" shall mean an individual who is not and has
never been:
(a) a director, officer, partner or employee of the Debtors, the
Non-Debtor Affiliates or any of their respective Affiliates, or
(b) a stockholder (whether direct, indirect or beneficial) of the
Debtors, the Non-Debtor Affiliates or any of their respective
Affiliates, or
(c) a customer, supplier or independent contractor of the Debtors,
the Non-Debtor Affiliates or any of their respective Affiliates,
or
(d) a holder of a Claim against any of the Debtors, the Non-Debtor
Affiliates or any of their respective Affiliates, or
(e) a person related by blood, not closer than second cousin, or
marriage to any of the persons described above.
"Litigation Account" has the meaning ascribed thereto in Section
5.02(a)(ii).
"Moody's" means Xxxxx'x Investors Service, Inc.
"Person" means an individual, corporation, business trust, partnership,
joint venture, association, joint stock company, limited liability company,
trust, entity or unincorporated association.
"Record Date" means the fifteenth Business Day preceding each Distribution
Date.
4
"Register" has the meaning ascribed thereto in Section 3.02(a).
"S&P" means Standard & Poor's, a division of The XxXxxx-Xxxx Companies.
"Transfer Agent and Registrar" has the meaning ascribed thereto in Section
3.02(a).
"Transfer Date" means the Business Day immediately preceding the last
Business Day of each calendar quarter.
"Trust" means the trust created pursuant to this Trust Agreement in
accordance with the Plan.
"Trust Assets" means (i) the capital stock or other interests of the
Platform Subsidiaries transferred to the Trust, (ii) the membership interests or
capital stock transferred to the Trust from time to time by any entity formed by
the Trust, the Transferors or the Platform Subsidiaries at the direction of the
Liquidating Trustee, (iii) the Assets from time to time transferred to the
Trust, (iv) such additional or different corpus as the Liquidating Trustee may
from time to time hold in trust or receive on behalf of the Beneficiaries of the
Trust, (v) the Litigation Claims, (vi) the Avoidance Actions and (vii) all
proceeds of the foregoing (including, without limitation, "proceeds" as defined
in the Uniform Commercial Code).
"Trust/XXX Account" has the meaning ascribed thereto in Section
5.02(a)(iii).
Section 1.02 RULES OF CONSTRUCTION.
Except as otherwise expressly provided in this Trust Agreement or unless
the context otherwise clearly requires:
(a) References to designated articles, sections, and other
subdivisions of this Trust Agreement, such as "Section 6.12 (a)", refer to the
designated article, section, or other subdivision of this Trust Agreement as a
whole and to all subdivisions of the designated article, section, or other
subdivision. The words "herein," "hereof," "hereto," "hereunder" and other words
of similar import refer to this Trust Agreement as a whole and not to any
particular article, section or other subdivision of this Trust Agreement.
(b) Any term that relates to a document or a statute, rule, or
regulation includes any amendments, modifications, supplements or any other
changes that may have occurred since the document, statute, rule, or regulation
came into being, including changes that occur after the date of this Trust
Agreement.
(c) Any party may execute any of the requirements under this Trust
Agreement either directly or through others, and the right to cause something to
be done rather than doing it directly shall be implicit in every requirement
under this Trust Agreement. Unless a provision is restricted as to time or
limited as to frequency, all provisions under this Trust Agreement are
implicitly available from time to time.
(d) The term "including" and all its variations mean "including but
not limited to." Except when used in conjunction with the word "either," the
word "or" is always used inclusively (for example, the phrase "A or B" means "A
or B or both," not "either A or B but not both").
(e) All accounting terms used in an accounting context and not
otherwise defined shall be construed in accordance with generally accepted
accounting principles.
5
(f) In the computation of a period of time from a specified date to a
later specified date or an open-ended period, the word "from" means "from and
including" and the words "to" or "until" mean "to but excluding." Likewise, in
setting deadlines or other periods, "by" means "on or before," and "after" means
"from and after."
All terms defined in this Trust Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
ARTICLE II
ORGANIZATION
Section 2.01 NAME.
This Trust shall be known as "BFA Liquidation Trust", in which name the
Liquidating Trustee may issue securities and otherwise conduct the affairs of
the Trust.
Section 2.02 OFFICE.
The office of the Trust shall be in care of the Liquidating Trustee at its
Corporate Trust Office or at any other address in the State of Arizona that the
Liquidating Trustee may designate by written notice to the Beneficiaries.
Section 2.03 DECLARATION OF TRUST.
For good and valuable consideration, the receipt of which is hereby
acknowledged by the undersigned, and pursuant to the terms of the Plan, the
Transferors execute this Trust Agreement and, subject to the provisions of
Section 2.06 below, irrevocably transfer, absolutely assign, convey, set over,
and deliver to the Liquidating Trustee, and its successors and assigns, all of
their right, title and interest in and to the Assets transferred pursuant to the
Plan 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. Effective as of the date hereof, the Liquidating Trustee
shall have all the rights, powers and duties set forth herein and pursuant to
applicable law for accomplishing the purposes of the Trust. The Liquidating
Trustee is hereby authorized to file with the Secretary of State of the State of
Arizona any documents necessary to establish the Trust.
Section 2.04 APPOINTMENT OF LIQUIDATING TRUSTEE.
The Liquidating Trustee is hereby appointed as trustee of the Trust
effective as of the date hereof, to have all the rights, powers and duties set
forth herein.
Section 2.05 ACCEPTANCE OF TRUST.
The Liquidating Trustee accepts the Assets and agrees to hold and
administer the Trust Assets for the benefit of the Beneficiaries subject to the
terms and conditions of this Trust Agreement and the Plan.
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Section 2.06 TAX TREATMENT OF TRUST.
For United States federal and applicable state income tax purposes, the
transfer of the Assets to the Trust pursuant to and in accordance with the Plan
shall be reported as a disposition of the Assets directly to and for the benefit
of the Beneficiaries immediately followed by a contribution of the Assets by the
Beneficiaries to the Trust for the benefit of the Beneficiaries. The
Beneficiaries will be treated as the grantors and owners of the Trust.
Section 2.07 CONVEYANCE OF ASSETS AND VALUATION.
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 Trust free and
clear of all Claims and Interests in accordance with Section 1141 of the
Bankruptcy Code. The valuation of the Assets approved by the Bankruptcy Court as
part of the confirmation process shall be consistently used by the Liquidating
Trustee and the Beneficiaries for all United States federal and applicable state
income tax reporting purposes but shall not limit the Liquidating Trustee in
regard to pricing the Assets in conjunction with their sale.
Section 2.08 NATURE AND PURPOSE OF THE TRUST.
(a) PURPOSE. The Trust is a liquidating trust pursuant to which the
Liquidating Trustee is to (i) hold the Trust Assets and dispose of the same in
accordance with this Trust Agreement and the Plan in accordance with Treasury
Regulation Section 301.7701-4(d) and (ii) oversee and direct the liquidation of
the Trust Assets. Accordingly, the primary purpose of the Trust is to liquidate
the Assets transferred to it with no objective to continue or engage in the
conduct of a trade or business, except to the extent reasonably necessary to
preserve or enhance the liquidation value of the Trust Assets, and consistent
with, the liquidating purpose of the Trust.
(b) MANNER OF ACTING. The Liquidating Trustee and the Liquidating
Trust Board shall oversee the liquidation of the Trust Assets in a
cost-effective manner in a reasonable time, with due regard for the risk that
undue haste may minimize the liquidation proceeds of a particular Trust Asset.
The Liquidating Trustee and the Liquidating Trust Board shall make continuing
efforts to dispose of the Trust Assets, make timely distributions and not unduly
prolong the duration of the Trust. In overseeing the selling of the Trust
Assets, or otherwise monetizing them, the Liquidating Trustee and the
Liquidating Trust Board will use their best efforts to maximize the amount of
the proceeds derived therefrom. The liquidation of the Trust Assets may be
accomplished either through the prosecution, compromise and settlement,
abandonment or dismissal of any or all claims, rights or causes of action, or
otherwise subject to the terms of the Plan. Notwithstanding anything to the
contrary contained herein, the Trust shall not be permitted to receive or retain
cash or cash equivalents in excess of a reasonable amount to: (i) meet all
distributions, Claims and contingent liabilities; (ii) establish such reserves
as provided herein and in the Plan; or (iii) preserve or enhance the liquidation
value of the Trust Assets during the term of the Trust.
(c) RELATIONSHIP. This Trust Agreement is intended to create a trust
and a trust relationship and to be governed and construed in all respects as a
trust. The Trust is not intended to be, and shall not be deemed to be or treated
as, a general partnership, limited partnership, joint venture, corporation,
joint stock company or association, nor shall the Liquidating Trustee or
Beneficiaries, or any of them, for any purpose be, or be deemed to be or treated
in any way whatsoever to be, liable or responsible hereunder as partners or
joint venturers. The relationship of the Beneficiaries to the Liquidating
Trustee shall be solely that of beneficiaries of a trust and shall not be deemed
a principal or agency relationship, and their rights shall be limited to those
conferred upon them by this Trust Agreement.
7
Section 2.09 INCORPORATION OF PLAN.
The Plan is hereby incorporated into this Trust Agreement and made a part
hereof by this reference; PROVIDED, HOWEVER, that in the event of any conflict
between the terms of the Plan and this Trust Agreement, the terms of the Plan
will control and govern.
Section 2.10 STATUS OF LIQUIDATING TRUSTEE.
The Liquidating Trustee will directly and indirectly be the representative
of the Debtors' Estates as that term is used in Section 1123(b)(3)(B) of the
Bankruptcy Code and will have the rights and powers provided for in the
Bankruptcy Code, including Section 1107 thereof, in addition to any rights and
powers granted in this Trust Agreement and in the Plan. The Liquidating Trustee
will be the successor-in-interest to the Debtors and Non-Debtor Affiliates with
respect to any action which was or could have been commenced by the Debtors and
the Non-Debtor Affiliates prior to the Effective Date and shall be deemed
substituted for the same as the party in such litigation. All actions, claims,
rights or interests constituting Trust Assets, are preserved and retained and
may be enforced by the Liquidating Trustee as the representative of the Debtors'
Estates pursuant to Section 1123(b)(3)(B) of the Bankruptcy Code. The
Liquidating Trustee will be a party-in-interest as to all matters over which the
Bankruptcy Court has jurisdiction or retains jurisdiction under the Plan.
ARTICLE III
BENEFICIARIES
Section 3.01 RIGHTS OF BENEFICIARIES.
Each Beneficiary will be entitled to participate in the rights due to a
Beneficiary hereunder. Each Beneficiary shall take and hold its uncertificated
beneficial interest subject to all of the terms and provisions of this Trust
Agreement and the Plan. The interest of a Beneficiary of the Trust is in all
respects personal property, and upon the death, insolvency or incapacity of an
individual Beneficiary, such Beneficiary's interest shall pass to the legal
representative of such Beneficiary and such death, insolvency or incapacity
shall not terminate or affect the validity of this Trust Agreement. A
Beneficiary shall have no title to, right to, possession of, management of, or
control of, the Trust Assets except as herein expressly provided. No surviving
spouse, heir or devisee of any deceased Beneficiary shall have any right of
dower, homestead, or inheritance, or of partition, or any other right, statutory
or otherwise, in the Trust Assets, but the whole title to all the Trust Assets
shall be vested in the Liquidating Trustee and the sole interest of the
Beneficiaries shall be the rights and benefits given to such persons under this
Trust Agreement.
Section 3.02 LIMIT ON TRANSFER OF INTERESTS OF BENEFICIARIES.
(a) The interest of a Beneficiary in the Trust shall be transferable
as provided in the Plan, subject to any reasonable limitations that may be
placed thereon by the Liquidating Trustee. The Liquidating Trustee shall cause
to be kept a register (the "Register") in which, subject to such reasonable
regulations as it may prescribe, a transfer agent and registrar (the "Transfer
Agent and Registrar") shall provide for the registration of the beneficial
interests of the Beneficiaries. The Transfer Agent and Registrar shall initially
be the Trust, and the Register shall initially be kept at the Corporate Trust
Office. Unless the context requires otherwise, any reference in this Trust
Agreement to the Transfer Agent and Registrar shall include any co-transfer
agent and registrar appointed by the Liquidating Trustee.
(b) The Transfer Agent and Registrar shall be permitted to resign upon
30 days' written notice to the Liquidating Trustee; PROVIDED, HOWEVER, that such
resignation shall not be effective and the Transfer Agent and Registrar shall
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continue to perform its duties as Transfer Agent and Registrar until the
Liquidating Trustee has appointed a successor Transfer Agent and Registrar.
(c) Prior to any intended transfer, assignment, hypothecation, pledge,
exchange or conveyance of a beneficial interest in the Trust, the transferring
Beneficiary shall submit to the Transfer Agent and Registrar a duly endorsed
assignment together with the specified transfer fee. No such transfer shall be
effected until, and the transferee shall succeed to the rights of a Beneficiary
only upon, final acceptance and registration of the Transfer by the Transfer
Agent and Registrar in the Register. Prior to the registration of any transfer
by a Beneficiary, the Liquidating Trustee shall treat the person in whose name
the beneficial interest is registered as the owner for all purposes, and the
Liquidating Trustee shall not be affected by notice to the contrary. When a
request to register the transfer of a beneficial interest is presented to the
Transfer Agent and Registrar, the Transfer Agent and Registrar shall register
the transfer or make the exchange as requested if its requirements for the
transaction are met. A service charge shall be payable by a Beneficiary for any
registration of transfer of a beneficial interest, and the Liquidating Trustee
shall require payment of a sum sufficient to cover any tax or governmental
charge that may be imposed on any transfer of a beneficial interest. Failure of
any Beneficiary to comply with these provisions shall void any transfer of the
related beneficial interest, and the proposed transferee shall have no rights
under this Trust Agreement. Upon the transfer of a transferring Beneficiary's
beneficial interest in the Trust as evidenced by the Register, such transferring
Beneficiary shall have no further right, title or interest in the Trust Assets
or the Trust.
Section 3.03 NO LEGAL TITLE IN BENEFICIARIES.
No Beneficiary shall have legal title to any part of the Trust Assets. No
transfer by operation of law or otherwise, of the right, title and interest of
any Beneficiary in and to the Trust Assets or hereunder shall operate to
terminate this Trust or entitle any successor or transferee of such Beneficiary
to an accounting or to the transfer to it of legal title to any part of the
Trust Assets.
Section 3.04 MEETINGS OF BENEFICIARIES.
In the event that a vote of the Beneficiaries is required pursuant to
Section 6.04(e) or any other provision of the Trust Agreement or the Plan the
following provisions shall apply:
(a) MEETING. Meetings of the Beneficiaries may be held whenever and
wherever called for by the Liquidating Trustee.
(b) NOTICES. Not less than ten (10) nor more than fifty (50) days
(inclusive of the date of meeting) before the date of any meeting of the
Beneficiaries and at the discretion of the person or persons calling the
meeting, the Liquidating Trustee will cause a written notice setting forth the
time, place and general purposes of the meeting to be deposited in the mail with
postage prepaid, addressed to each Beneficiary listed in the Register at his
last address as it then, or on the applicable record date, appears in the
Register. Any Beneficiary may waive call or notice of any annual or special
meeting (and any adjournment thereof) at any time before, during or after it is
held. Attendance of a Beneficiary at any such meeting in person or by proxy will
automatically evidence his waiver of call and notice of such meeting (and any
adjournment thereof) unless he or his proxy is attending the meeting for the
express purpose of objecting to the transaction of business thereat because it
has not been properly called or noticed. No call or notice of a meeting of the
Beneficiaries will be necessary if each of them waives the same in writing or by
attendance as aforesaid.
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(c) BENEFICIARIES OF RECORD. For the purpose of determining
Beneficiaries entitled to notice of or to vote at any meeting of Beneficiaries
(and at any adjournment thereof), or Beneficiaries entitled to express written
consent to corporate action without a meeting, or Beneficiaries entitled to
receive payment of any dividend, or in order to make a determination of
Beneficiaries for any other lawful action, the Liquidating Trustee may fix in
advance a record date which shall not be more than sixty (60) nor less than ten
(10) days before the date of such meeting, nor more than sixty (60) nor less
than ten (10) days prior to such other action.
If no record date is fixed for determining Beneficiaries entitled to notice
of or to vote at a meeting of Beneficiaries, the record date shall be at four
o'clock (4:00) in the afternoon on the day before the day on which notice is
given or, if notice is waived, at the commencement of the meeting. If no record
date is fixed for determining Beneficiaries entitled to express written consent
to corporate action without meeting, the record date shall be the time of the
day on which the first written consent is served upon the Liquidating Trustee.
A determination of Beneficiaries of record entitled to notice of or to vote
at a meeting of Beneficiaries shall apply to any adjournment of the meeting;
provided however, that the Liquidating Trustee may fix a new record date for the
adjourned meeting and further provided that the adjournment or adjournments of
any such meeting do not exceed thirty (30) days in the aggregate.
(d) VOTING RECORD. The Liquidating Trustee shall make a complete
record of the Beneficiaries entitled to vote at a meeting of the Beneficiaries
(and at any adjournment thereof), arranged in alphabetical order, with the
address and Pro Rata share of Allowed Claims (of all Beneficiaries) of each
Beneficiary. Such record shall be produced and kept open at the time and place
of the meeting and shall be subject to the inspection of any Beneficiary during
the whole time of the meeting for the purposes thereof.
(e) PROXIES. Any Beneficiary entitled to vote thereat may vote by
proxy at any meeting of the Beneficiaries (and at any adjournment thereof) which
is specified in such proxy, provided that his proxy is executed in writing by
him or his duly authorized attorney-in-fact. No proxy shall be valid after
eleven (11) months from the date of its execution, unless otherwise provided in
the proxy. The burden of proving the validity of any proxy undated, irrevocable
or otherwise contested at any such meeting of the Beneficiaries will rest with
the person seeking to exercise the same. A telegram or cablegram appearing to
have been transmitted by a Beneficiary or by his duly authorized
attorney-in-fact may be accepted as a sufficiently written and executed proxy.
(f) VOTING. Except as may otherwise be required by applicable law,
each Beneficiary represented at any meeting of the Beneficiaries in person or by
a proxy given as provided in Section 3.04(e) above, will be entitled to a number
of votes equal to such Beneficiary's Pro Rata share of Allowed Claims of all
Beneficiaries. Any question submitted to the Beneficiaries will be resolved by a
majority of the votes cast thereon provided that such votes constitute a
majority of the quorum of the particular meeting, whether or not such quorum is
then present. The voting will be by ballot on any question as to which begins,
by any person entitled to vote on such question; otherwise, a voice vote will
suffice. No ballot or change of vote will be accepted after the polls have been
declared closed following the ending of the announced time for voting.
(g) VOTING OF INTERESTS BY CERTAIN BENEFICIARIES. A beneficial
interest held by a corporation may be voted by such corporation's officer, agent
or proxy as its Bylaws may prescribe or, in the absence of such a bylaw
provision, by any other person designated by resolution of its board of
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directors and such officer, agent or other person so designated may vote such
corporation's beneficial interest in person or by proxy appointed by him.
A beneficial interest held by an administrator, executor, guardian or
conservator may be voted by such representative, either in person or by proxy,
without a transfer of such beneficial interest into his name. A beneficial
interest standing in the name of a trustee, other than a trustee in bankruptcy,
may be voted by such representative, either in person or by proxy.
A beneficial interest outstanding in the name of a receiver, trustee in
bankruptcy or assignee for the benefit of creditors may be voted by such
representative, either in person or by proxy. A beneficial interest held by or
under the control of such a receiver or trustee may be voted by such receiver or
trustee, either in person or by proxy, without the transfer thereof into his
name, if authority to do so be contained in an appropriate order of the court by
which such receiver or trustee was appointed.
A Beneficiary whose beneficial interest is pledged shall be entitled to
vote until the beneficial interest has been transferred into the name of the
pledgee, and thereafter the pledgee shall be entitled to vote the beneficial
interest so transferred.
If a beneficial interest stands in the name of two (2) or more persons,
whether fiduciaries, members of a partnership, joint tenants, tenants in common,
tenants by the entirety or tenants by community property or otherwise, or if two
(2) or more persons have the same fiduciary relationship respecting the same
beneficial interest, unless the Liquidating Trustee is given written notice to
the contrary and is furnished with a copy of the instrument or order appointing
them or creating the relationship wherein it is so provided, their acts with
respect to voting shall have the following effect:
(1) If only one votes, his act binds; (2) If more than one votes, the act
of the majority so voting binds all; and (3) If more than one votes, but the
vote is evenly split on any particular matter, each faction may vote the
beneficial interest in question proportionally.
A beneficial interest registered in the name of a married woman but not
also registered in the name of her husband with such a designation of the mutual
relationship noted in the Register, may be voted and all rights incident thereto
may be exercised in the same manner as if she were unmarried.
Beneficial interests belonging to the Trust or to another corporation, if a
majority of the beneficial interests entitled to vote in the election of
directors of such other corporation is held, directly or indirectly, by the
Trust, shall neither be entitled to vote nor counted for quorum purposes.
Nothing, in this section shall be construed as limited the right of the Trust to
vote its own beneficial interests held by it in a fiduciary capacity.
(h) QUORUM. At any meeting of the Beneficiaries, the presence in
person or by proxy of the holders of a majority in number of all outstanding
beneficial interests in the Trust will constitute a quorum of the Beneficiaries
for all purposes. In the absence of a quorum, any meeting may be adjourned from
time to time (but not exceeding thirty (30) days in the aggregate) by the
Liquidating Trustee until a quorum is formed without notice by announcement at
the meeting, or with notice pursuant to Section 3.04(b) above, if a new record
date is fixed for the adjourned meeting. At any such adjourned meeting at which
a quorum is present, any business may be transacted which might have been
transacted at the meeting as originally noticed. The Beneficiaries present at a
duly organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal or temporary absence of enough Beneficiaries to
leave less than a quorum.
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(i) ORGANIZATION AND CONDUCT OF MEETINGS. Each meeting of the
Beneficiaries will be called to order and thereafter chaired by the Liquidating
Trustee. The Liquidating Trustee or his representative will act as secretary of
each meeting of the Beneficiaries. After calling a meeting to order, the
Liquidating Trustee may require the registration of all Beneficiaries intending
to vote in person, and the filing of all proxies with the Liquidating Trustee.
After the announced time for such filing of proxies has ended, no further
proxies or changes, substitutions or revocations, of proxies will be accepted.
Absent a showing of bad faith on his part, the Liquidating Trustee will, among
other things, have absolute authority to fix the period of time allowed for the
registration of Beneficiaries and the filing of proxies, to determine the order
of business to be conducted at such meeting and to establish reasonable rules
for expediting the business of the meeting (including any informal or question
and answer portions thereof).
(j) INFORMALITIES AND IRREGULARITIES. All informalities or
irregularities in any call or notice of a meeting of the Beneficiaries, or in
the areas of credentials, proxies, quorums, voting and similar matters, will be
deemed waived if no objection is made at the meeting.
(k) ACTION BY BENEFICIARIES WITHOUT A MEETING. Any action required or
permitted to be taken at a meeting of the Beneficiaries of the Trust may be
taken without a meeting if a consent in writing, setting forth the action so
taken, is signed by all of the Beneficiaries entitled to vote with respect to
the subject matter thereof. Such consent shall have the same effect as a
unanimous vote of the Beneficiaries of the Trust.
ARTICLE IV
THE LIQUIDATING TRUSTEE
Section 4.01 APPOINTMENT AND TENURE OF LIQUIDATING TRUSTEE.
The Liquidating Trustee will initially be appointed by the Restructuring
Committee and the Committees. The Liquidating Trustee shall be subject to
approval by the Bankruptcy Court as part of the Confirmation Hearing. The
Liquidating Trustee shall serve as trustee until his or her successor shall have
been appointed in accordance with Section 4.02 or until resignation, death or
removal.
Section 4.02 TENURE, REMOVAL, AND REPLACEMENT OF THE LIQUIDATING TRUSTEE.
Subject to the provisions of Section 4.01 above, the authority of the
Liquidating Trustee will be effective as of the Effective Date and will remain
and continue in full force and effect until all of the Assets are liquidated in
accordance with the Plan, the Net Distributable Cash has been completely
distributed in accordance with the provisions of the Plan, all tax returns and
any other filings or reports have been filed with the appropriate state or
federal regulatory authorities, and the Order closing the Chapter 11 Cases is a
Final Order. The service of the Liquidating Trustee will be subject to the
following:
(a) The Liquidating Trustee will serve until death, resignation
pursuant to subsection (b) below, or removal pursuant to subsection (c) below;
(b) The Liquidating Trustee may resign at any time by providing a
written notice of resignation to the Liquidating Trust Board and the Bankruptcy
Court. Such resignation will be effective when a successor is appointed as
provided herein;
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(c) The Liquidating Trustee may be removed by resolution of the
Liquidating Trust Board for any reason, including Cause which shall be effective
upon approval by the Bankruptcy Court; PROVIDED, HOWEVER, that the Bankruptcy
Court shall retain jurisdiction to remove and replace the Liquidating Trustee;
(d) In the event of a vacancy in the position of the Liquidating
Trustee (whether by removal, death or resignation), the vacancy will be filled
by the appointment of a successor Liquidating Trustee by resolution of the
Liquidating Trust Board which shall be effective upon approval by the Bankruptcy
Court. Furthermore, the appointment of the successor Liquidating Trustee will be
evidenced by the filing with the Bankruptcy Court of a notice of appointment,
which notice will include the name, address, and telephone number of the
successor Liquidating Trustee;
(e) Immediately upon appointment of any successor Liquidating Trustee,
all rights, powers, duties, authority, and privileges of the predecessor
Liquidating Trustee hereunder will be vested in and undertaken by the successor
Liquidating Trustee without any further act; and the successor Liquidating
Trustee will not be liable personally for any act or omission of the predecessor
Liquidating Trustee; and
(f) Upon the resignation of the Liquidating Trustee and the
appointment of a successor, the resigning Liquidating Trustee will, if
applicable, convey, transfer, and set over to the successor by appropriate
instrument or instruments all of the funds, if any, then unconveyed or otherwise
undisposed of and all other assets then in its possession and held hereunder.
Section 4.03 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR LIQUIDATING TRUSTEE.
Any successor Liquidating Trustee appointed hereunder shall execute an
instrument accepting such appointment and assuming all of the obligations of the
retiring Liquidating Trustee hereunder and thereupon the successor Liquidating
Trustee shall, without any further act, become vested with all the estates,
properties, rights, powers, trusts, and duties of its predecessor in the Trust
hereunder with like effect as if originally named herein; but the retiring
Liquidating Trustee nevertheless shall, if applicable, when requested in writing
by the successor Liquidating Trustee, execute and deliver an instrument or
instruments conveying and transferring to such successor Liquidating Trustee
upon the trust herein expressed, all the estates, properties, rights, powers and
trusts of such retiring Liquidating Trustee, and shall duly assign, transfer,
and deliver to such successor Liquidating Trustee all property and money held
hereunder.
Section 4.04 REGULAR MEETINGS OF THE LIQUIDATING TRUSTEE AND THE
LIQUIDATING TRUST BOARD.
Meetings of the Liquidating Trustee and the Liquidating Trust Board are to
be held with such frequency and at such place as the Liquidating Trustee and the
Liquidating Trust Board may determine in their sole discretion, but in no event
shall such meetings be held less frequently than annually.
Section 4.05 SPECIAL MEETINGS OF THE LIQUIDATING TRUSTEE.
Special meetings of the Liquidating Trustee and the Liquidating Trust Board
may be held whenever and wherever called for either by the Liquidating Trustee
or the Liquidating Trust Board.
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Section 4.06 NOTICE OF, AND WAIVER OF NOTICE FOR, LIQUIDATING TRUSTEE AND
LIQUIDATING TRUST BOARD.
Notice of the time and place (but not necessarily the purpose or all of the
purposes) of any regular or special meeting will be given to the Liquidating
Trustee and the members of the Liquidating Trust Board in person or by
telephone, or via mail or facsimile transmission. Notice to the Liquidating
Trustee and the members of the Liquidating Trust Board of any such special
meeting will be deemed given sufficiently in advance when (i) if given by mail,
the same is deposited in the United States mail at least ten (10) days before
the meeting date, with postage thereon prepaid, (ii) if given by facsimile
transmission, the same is transmitted at least 24 hours prior to the convening
of the meeting, (iii) if given by e-mail, the same is transmitted at least 24
hours prior to the convening of the meeting, or (iv) if personally delivered
(including by overnight courier) or given by telephone, the same is handed, or
the substance thereof is communicated over the telephone to the Liquidating
Trustee and the members of the Liquidating Trust Board or to an adult member of
his or her office staff or household, at least 24 hours prior to the convening
of the meeting. The Liquidating Trustee and any member of the Liquidating Trust
Board may waive notice of any meeting and any adjournment thereof at any time
before, during, or after it is held, as provided by law. Except as provided in
the next sentence below, the waiver must be in writing, signed by the
Liquidating Trustee or the members of the Liquidating Trust Board entitled to
the notice, and filed with the minutes or records of the Trust. The attendance
of the Liquidating Trustee or a member of the Liquidating Trust Board at a
meeting shall constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting, at the beginning
of the meeting, to the transaction of any business because the meeting is not
lawfully called or convened.
Section 4.07 LIQUIDATING TRUSTEE, MANNER OF ACTING.
The Liquidating Trustee may participate in a regular or special meeting by,
or conduct the meeting through the use of, conference telephone or similar
communications equipment by means of which all persons participating in the
meeting may hear each other, in which case any required notice of such meeting
may generally describe the arrangements (rather than or in addition to the
place) for the holding thereof. The Liquidating Trustee participating in a
meeting by this means is deemed to be present in person at the meeting.
Section 4.08 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 illustration and not of limitation:
(a) to form the Platform Subsidiaries and hold the capital stock or
other interests of the Platform Subsidiaries as part of the Trust Assets;
(b) to liquidate or direct the Transferors and the Platform
Subsidiaries to liquidate any and all of the Trust Assets in accordance with the
terms of this Trust Agreement and the Plan;
(c) to manage, sell, transfer, assign or deal in any other manner with
any of the Trust Assets in such manner not otherwise provided for herein as the
Liquidating Trustee may deem advisable consistent with the terms of the Plan;
(d) to release, convey or assign or direct the Transferors and the
Platform Subsidiaries to release, convey or assign any right, title or interest
in or to the Trust Assets or any portion thereof; and to do or direct the
Transferors and the Platform Subsidiaries to do all things necessary or
appropriate to perform any obligations required to be performed by the Trust
under the terms of any agreement for the sale of any of the Trust Assets,
including the execution and delivery of any deeds, assignments, bills of sale or
14
other instruments of conveyance necessary or appropriate to transfer and convey
such assets;
(e) to undertake any actions necessary or desirable to operate or
conduct the affairs of the Transferors, the Platform Subsidiaries or any other
entity formed by the Transferors, the Platform Subsidiaries or the Trust,
including entering into contracts and other agreements and any other action
necessary to preserve or enhance the liquidation value of the Trust Assets;
(f) to collect, receive, hold, manage, invest and distribute any and
all money and other property of whatsoever kind or nature due or owing or
belonging to the Trust and to give full discharge and acquittance therefor;
(g) pending sale or other disposition or distribution, to retain or
direct the Transferors and the Platform Subsidiaries to retain all or any Assets
constituting part of the Trust Assets regardless of whether or not such Assets
are, or may become, underproductive, unproductive or a wasting asset (the
Liquidating Trustee shall be permitted to keep any part of the Trust Assets as
may be in cash, or as may be converted into cash, uninvested for a reasonable
period of time and the Liquidating Trustee shall not be chargeable with interest
thereon);
(h) to form or direct the Transferors and the Platform Subsidiaries to
form any entity, including a trust, and sell, transfer, convey or assign or
direct the Transferors and the Platform Subsidiaries to sell, transfer, convey
or assign all or any part of the Trust Assets, liabilities, profits or losses to
such entity formed by any or all of the Liquidating Trustee, the Transferors or
the Platform Subsidiaries and to convert the beneficial interest of the
Beneficiaries into beneficial interests, or any other interest, of such entity
formed pursuant to the action or direction of the Liquidating Trustee;
(i) subject to the terms of the Plan, to retain and set aside funds
out of the Trust Assets as the Liquidating Trustee shall deem necessary or
appropriate to pay, or provide for the payment of: (i) the unpaid liabilities,
debts or obligations of the Trust, (ii) contingencies, and (iii) the expenses of
administering the Trust Assets;
(j) to do and perform or to direct the Transferors and the Platform
Subsidiaries to do or perform any acts or things necessary or appropriate for
the conservation and protection of the Trust Assets, including any acts or
things necessary or appropriate to maintain Assets held by the Liquidating
Trustee, the Transferors or the Platform Subsidiaries pending sale or other
disposition thereof or distribution thereof to the Beneficiaries, and in
connection therewith to employ brokers or other agents and to confer upon them
such authority as the Liquidating Trustee may deem necessary or appropriate, and
to pay reasonable compensation therefor;
(k) in accordance with Section 1123(b)(3)(B) of the Bankruptcy Code,
the Plan and this Trust Agreement, to engage in, intervene in, prosecute, join,
defend, compound, settle, compromise, abandon or adjust, by arbitration or
otherwise, any actions, suits, proceedings, disputes, claims, controversies,
demands or other litigation relating to the Plan, the Trust, the Trust Assets or
the Trust's affairs, to enter into agreements relating to the foregoing, whether
or not any suit is commenced or claim accrued or asserted and, in advance of any
controversy, to enter into agreements regarding arbitration, adjudication or
settlement thereof, all in the name of the Trust if necessary or appropriate,
and institute or continue actions which were or otherwise could have been
brought by the Debtors or the Non-Debtor Affiliates, and prosecute or defend all
litigation or appeals on behalf of the Debtors and the Non-Debtor Affiliates
and, when appropriate, settle such actions and claims; provided, however, that
the Liquidating Trustee shall obtain Bankruptcy Court approval prior to any
settlement of the Litigation Claims;
15
(l) in accordance with Section 1123(b)(3) of the Bankruptcy Code, to
own and retain, and prosecute, enforce, compromise, settle, release, or
otherwise dispose of, any and all claims, defenses, counterclaims, setoffs, and
recoupments belonging to the Debtors, the Non-Debtor Affiliates or the Debtors'
Estates; provided, however, that the Liquidating Trustee shall obtain Bankruptcy
Court approval prior to any settlement of the Litigation Claims;
(m) to assign its rights under the Plan;
(n) to file any and all documents and take any and all such other
action as the Liquidating Trustee, in its sole judgment, may deem necessary in
order that the Liquidating Trustee may lawfully carry out the purposes of the
Trust in any jurisdiction;
(o) to review all Claims in the Chapter 11 Cases and file or litigate
objections to the allowance of Claims and seek to estimate them;
(p) to pay and discharge or direct the Transferors and the Platform
Subsidiaries to pay and discharge any costs, expenses, professional fees or
obligations deemed necessary to preserve or enhance the liquidation value of the
Trust Assets, discharge duties under the Plan or perform the purpose of the Plan
and this Trust Agreement; payment of such fees and expenses will not require
Bankruptcy Court approval;
(q) to open and maintain bank accounts and deposit funds, draw checks
and make disbursements in accordance with the Plan and this Trust Agreement;
(r) subject to Section 4.09, to select and engage such Persons,
including the Disbursing Agent, if necessary, and select and engage such
professional advisors, including, without limitation, the Liquidating Trustee's
own law firm and/or any Professional previously retained by the Debtors or the
Committees, in accordance with the terms of the Plan and this Trust Agreement,
as the Liquidating Trustee deems necessary and desirable to assist it in
fulfilling its obligations under this Trust Agreement and the Plan and pay the
reasonable fees of such Persons and reimburse such Persons for their reasonable
out-of-pocket costs and expenses. To the extent that the Liquidating Trustee is
licensed and capable of doing so, the Liquidating Trustee may serve as its own
attorney, accountant, and/or tax specialist in conjunction with any of the
rights, powers, and duties of the Liquidating Trustee under the Plan;
(s) to xxx and be sued;
(t) to enforce, waive, assign or release rights, privileges or
immunities of any kind;
(u) to vote any share or shares of stock or interests and otherwise
exercise the rights appurtenant to ownership of such stock or interests;
(v) to in general, without in any manner limiting any of the
foregoing, deal with the Trust Assets or any part or parts thereof in all other
ways as would be lawful for any person owning the same to deal therewith,
whether similar to or different from the ways herein specified, but in all
events subject to and consistent with the terms of the Plan;
16
(w) to obtain and pay for insurance coverage relative to the proper
performance of its duties under the Plan and this Trust Agreement, and to
indemnification for itself and others provided for in the Plan, and this Trust
Agreement;
(x) to establish and maintain the Accounts, and establish such
additional reserves, funds, and accounts out of the Trust Assets as may be
necessary for carrying out the provisions of this Trust Agreement which are
consistent with the terms of the Plan;
(y) to oversee the dissolution and winding up of the Debtors in
accordance with applicable law;
(z) as soon as is practicable, ask the Bankruptcy Court to enter the
Final Decree;
(aa) to seek any relief from or resolution of any disputes by the
Bankruptcy Court;
(bb) to appear and participate in any proceeding before the Bankruptcy
Court with respect to any matter regarding or relating to the Plan, the Trust or
the Liquidating Trust Board;
(cc) to issue and authenticate any securities issued by the Trust;
(dd) to convert the Trust from a trust into any other type of entity;
(ee) to merge or consolidate with or direct the Transferors and the
Platform Subsidiaries to merge or consolidate with any entity, any of the
Transferors, the Trust or such entity to be the surviving or resulting entity;
(ff) to confer with the members of the Liquidating Trust Board
regarding any potential action to be taken, or not taken, by the Liquidating
Trustee;
(gg) to manage the trust department of the Debtors, to complete any
probate court proceedings related to the Debtors, to transfer any assets held by
the Debtors on behalf of any beneficiary to any trustees and to take any other
actions which are ancillary to the winding up of the Debtors' businesses;
(hh) to review and object to any application for Professional Fees;
and
(ii) without limitation, to do or direct the Transferors and the
Platform Subsidiaries to do any and all things necessary to accomplish the
purposes of the Plan and this Trust Agreement.
In addition, the Liquidating Trustee shall have the right to seek
Bankruptcy Court approval of any action to be undertaken by the Trust, and the
Liquidating Trustee shall have the authority and power provided under Section
363 of the Bankruptcy Code, including, without limitation, the power to sell any
Trust Asset free and clear of any Liens.
Section 4.09 APPROVAL OF LIQUIDATING TRUST BOARD AND BANKRUPTCY COURT.
Subject to Section 4.10, the Liquidating Trustee shall not, without the
approval of a majority of the members of the Liquidating Trust Board, (i) sell
any assets of the Trust for an amount greater than $3,000,000, (ii) adopt the
annual budget of the Trust, (iii) determine the amount of reserves and approve
operating expenses in excess of the annual budget for the Trust, (iv) create
entities and transfer assets to or between such entities and the Platform
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Subsidiaries, (v) settle or pursue Litigation Claims, (vi) appoint the members,
directors, trustee(s) or officers of the Platform Subsidiaries or any other
entity created by the Trust, (vii) take any of the actions specified in
paragraphs (k), (l), (o), (p), (dd) or (ee) of Section 4.08, (viii) select and
engage general corporate counsel for the Trust, (ix) select and engage
professional accounting firms to perform any audits with respect to the Trust,
(x) select and engage any financial advisors or investment bankers for the
Trust, or (xi) select and engage any other professional advisor if the fees of
such professional advisor are expected to be in excess of $100,000 during any
twelve month period.
Section 4.10 DISPUTE RESOLUTION.
Any dispute between the Liquidating Trustee and the Liquidating Trust Board
shall be resolved by the Bankruptcy Court. In the event of a dispute between the
Liquidating Trustee and the Liquidating Trust Board, the Liquidating Trustee and
the Liquidating Trust Board shall have the authority to retain separate counsel
to represent such party in any proceeding before the Bankruptcy Court with the
reasonable fees and expenses of such counsel to be advanced by the Trust. A
member of the Liquidating Trust Board (or the dissenting members of the
Liquidating Trust Board which represent less than a majority of the Liquidating
Trust Board) who dispute(s) any action taken by the Liquidating Trust Board or
the Liquidating Trustee shall not have the right to challenge any decision of
the Liquidating Trust Board at the Trust's expense, retain counsel on behalf of
the Liquidating Trust Board or have the fees and expenses of counsel retained by
such member(s) to represent such member(s) advanced or reimbursed by the Trust.
Section 4.11 REPORTING OF ASSET SALES
The Liquidating Trustee shall create a web site on which the Liquidating
Trustee shall publish as soon as practicable information relating to any
proposed sale of Trust Assets for an amount greater than $3,000,000, other than
marketable securities which are traded on a nationally recognized securities
exchange; PROVIDED, HOWEVER, that if the Liquidating Trustee determines in his
sole discretion that the publication of information relating to any proposed
sale of a Trust Asset would reduce the value to be realized from the sale of
such Trust Asset, the Liquidating Trustee shall not be obligated to publish
information relating to the proposed sale of such Trust Asset.
Section 4.12 AUTHORITY WITH RESPECT TO AVOIDANCE ACTIONS AND LITIGATION
CLAIMS.
The Liquidating Trustee will not be required to seek the approval of the
Liquidating Trust Board with respect to the settlement or pursuit of any
Avoidance Action; provided, however, that if the amount in dispute is greater
than $250,000, the Liquidating Trustee shall obtain Bankruptcy Court approval of
the settlement or pursuit of such Avoidance Action. Moreover, the Trust shall be
required to obtain Bankruptcy Court approval with respect to the settlement of
the Litigation Claims.
Section 4.13 COMPENSATION AND REIMBURSEMENT OF LIQUIDATING TRUSTEE,
LIQUIDATING TRUST BOARD AND PROFESSIONALS.
The Liquidating Trustee and the members of the Liquidating Trust Board
shall be compensated for services in the administration of the Trust as set
forth in that certain compensation agreement approved by the Bankruptcy Court as
part of the Confirmation Hearing. Any professionals or any Person retained by
the Liquidating Trustee pursuant to the Plan will be entitled to reasonable
compensation for services rendered at a rate reflecting actual time billed by
such professional or Person on an hourly basis, at the standard billing rates in
effect at the time of service or such other rate or basis of compensation that
is reasonable. All reasonable out-of-pocket expenses incurred by the Liquidating
Trustee or any other professional or other Person retained by the Liquidating
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Trustee pursuant to the Plan will be reimbursable as an expense of the Trust.
The fees and expenses of any professional or Person will be reimbursed in
accordance with Section 5.11.
Section 4.14 NO IMPLIED OBLIGATIONS.
No other 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 Trust Assets.
Section 4.15 UNKNOWN PROPERTY AND LIABILITIES.
The Liquidating Trustee shall be responsible for only that property
delivered to it, and shall have no duty to make, nor incur any liability for
failing to make, any search for unknown property or for any liabilities.
ARTICLE V
ADMINISTRATION OF THE TRUST
Section 5.01 DISTRIBUTIONS.
Notwithstanding anything to the contrary contained herein, the Liquidating
Trustee shall make at least annual distributions pursuant to and in accordance
with the Plan; PROVIDED, HOWEVER, that the Liquidating Trustee shall not be
required to make DE MINIMIS distributions except upon the Final Distribution
Date. Notwithstanding the foregoing, the Liquidating Trustee shall, in
accordance with the Plan and on each Distribution Date, distribute to the
Beneficiaries the net income of the Trust and the net proceeds from the
disposition of the Trust Assets in excess of such amounts reasonably necessary
to preserve or enhance the liquidation value of the Trust Assets during the term
of the Trust, to pay reasonable estimated administrative expenses and to meet
all Claims or other contingent liabilities. The Liquidating Trustee may withhold
from amounts distributable to any Person any and all amounts, determined in the
Liquidating Trustee's reasonable sole discretion, to be required by any law,
regulation, rule, ruling, directive or other governmental requirement
(including, but not limited to, the "Foreign Investment in Real Property Tax
Act"). Distributions shall be made to the Beneficiaries who hold such interests
on the Record Date immediately preceding the Distribution Date.
Section 5.02 ACCOUNTS; ELIGIBLE INVESTMENTS.
(a) Creation of Accounts.
(i) The Liquidating Trustee, on behalf of the Beneficiaries,
shall establish and maintain in the name of the Liquidating Trustee at an
Eligible Institution a segregated trust account accessible only by the
Liquidating Trustee (the "Collection Account") which shall be identified as the
"Collection Account for the BFA Liquidation Trust" and shall bear a designation
clearly indicating that the funds deposited therein are held on behalf of the
Beneficiaries.
(ii) The Liquidating Trustee, on behalf of the Beneficiaries,
shall establish and maintain in the name of the Liquidating Trustee at an
Eligible Institution a segregated trust account accessible only by the
Liquidating Trustee (the "Litigation Account") which shall be identified as the
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"Litigation Account for the BFA Liquidation Trust" and shall bear a designation
clearly indicating that the funds deposited therein are held on behalf of the
Beneficiaries.
(iii) The Liquidating Trustee, on behalf of the Beneficiaries,
shall establish and maintain in the name of the Liquidating Trustee at an
Eligible Institution a segregated trust account accessible only by the
Liquidating Trustee (the "Trust/XXX Account") which shall be identified as the
"Trust/XXX Account for the BFA Liquidation Trust" and shall bear a designation
clearly indicating that the funds deposited therein are held on behalf of the
Beneficiaries.
(iv) The Liquidating Trustee, on behalf of the Beneficiaries,
shall establish and maintain in the name of the Liquidating Trustee at an
Eligible Institution a segregated trust account accessible only by the
Liquidating Trustee (the "Distribution Reserve") which shall be identified as
the "Distribution Reserve for the BFA Liquidation Trust" and shall bear a
designation clearly indicating that the funds deposited therein are held on
behalf of the Beneficiaries.
(v) The Liquidating Trustee, on behalf of the Beneficiaries,
shall establish and maintain in the name of the Liquidating Trustee at an
Eligible Institution a segregated trust account accessible only by the
Liquidating Trustee (the "Holding Account") which shall be identified as the
"Holding Account for the BFA Liquidation Trust", shall bear a designation
clearly indicating that the funds deposited therein are held on behalf of the
Beneficiaries and shall be for the purpose of holding undeliverable
distributions in accordance with Section 5.10.
(b) Eligible Investments.
(i) Funds on deposit in the Accounts shall be invested by the
Liquidating Trustee in Eligible Investments selected by the Liquidating Trustee
that will mature so that they will be available by 12:00 noon (New York City
time) on the Transfer Date immediately preceding each Distribution Date;
PROVIDED, HOWEVER, that funds on deposit in the Distribution Reserve and Holding
Account shall be invested by the Liquidating Trustee in Eligible Investments
selected by the Liquidating Trustee that will be available upon one Business
Day's notice. All Eligible Investments shall be held by the Liquidating Trustee
on behalf of the Beneficiaries. Eligible Investments may include investments for
which corporations related to the Liquidating Trustee or an Affiliate of such
Persons provides services.
(ii) All interest and other investment earnings (net of losses
and investment expenses) on funds on deposit in the Accounts shall be held in
the respective accounts to which such interest and investment earnings relate.
(c) Maintenance of Accounts.
The Liquidating Trustee shall possess all right, title and interest in and
to all funds on deposit in, and all Eligible Investments, if any, credited to,
and in all proceeds of, the Accounts. The Accounts shall be under the sole
dominion and control of the Liquidating Trustee on behalf of the Beneficiaries.
If, at any time, any Account is held by an institution other than an Eligible
Institution, the Liquidating Trustee shall within five Business Days establish a
new Account meeting the conditions for that account in this Section and shall
transfer any cash and any investments to such new account. The Liquidating
Trustee shall be the sole Person with authorization to withdraw any amount from
any Account.
Section 5.03 DEPOSITS INTO ACCOUNTS.
The Liquidating Trustee shall make the following deposits into the
following Accounts:
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(a) the Net Litigation Recovery shall be deposited into the Litigation
Account;
(b) the net recovery received by the Liquidating Trustee of litigation
claims arising under or related to any XXX and trust activities conducted by the
Debtors prior to the Petition Date shall be deposited into the Trust/XXX
Account;
(c) all other Cash received by the Liquidating Trustee (including the
proceeds from any sale of the Assets by the Transferors and Platform
Subsidiaries prior to the Effective Date) shall be deposited into the Collection
Account;
(d) any distributions to holders of Claims which are Disputed Claims
under the Plan shall be deposited into the Distribution Reserve; and
(e) any distributions which are undeliverable shall be deposited into
the Holding Account in accordance with Section 5.10.
Section 5.04 DISTRIBUTIONS FROM THE COLLECTION ACCOUNT.
The Liquidating Trustee shall make distributions from the Collection
Account to the Beneficiaries listed in the Register as of the applicable Record
Date in accordance with and subject to the distribution and priority scheme set
forth in the Plan, subject to the provisions contained herein relating to the
Distribution Reserve, the Litigation Account, the Trust/XXX Account and the
Holding Account.
Section 5.05 DISTRIBUTIONS FROM THE DISTRIBUTION RESERVE.
(a) Upon the resolution of an objection to the General Unsecured Claim
Recovery Schedule, if any, and the receipt by the Liquidating Trustee of proof
of the same, on the Business Day succeeding the Liquidating Trustee's receipt of
proof of the resolution of any objection, the Liquidating Trustee shall withdraw
from the Distribution Reserve and distribute to the holder of an Allowed General
Unsecured Claim who objected to the General Unsecured Claim Recovery Schedule
the amount of the distributions to which such holder is entitled which were
previously deposited in the Distribution Reserve.
(b) The Liquidating Trustee shall withdraw from the Distribution
Reserve and distribute to each holder of a Disputed Claim (other than a Disputed
Claim which is classified as a General Unsecured Claim) whose Claim is or
becomes an Allowed Claim, the amount specified in the Final Order allowing such
Disputed Claim (or the amount agreed upon by the Liquidating Trustee and such
holder of a Disputed Claim) plus such holder's Pro Rata share of the interest
accrued on the Distribution Reserve, as soon as practicable after such order
becomes a Final Order.
Section 5.06 DISTRIBUTIONS TO THE HOLDERS OF ALLOWED INVESTOR CLAIMS.
Holders of Allowed Investor Claims shall receive the following
distributions:
(a) Subject to Section 5.06(d), Section 5.06(e) and Section 5.06(f),
on each Distribution Date subsequent to the payment in full of the holders of
Allowed Convenience Claims in accordance with the Plan, the Liquidating Trustee
shall withdraw from the Collection Account and distribute to each holder of an
Allowed Investor Claim such holder's Pro Rata share of Cash equivalent to ninety
percent (90%) of Net Distributable Cash, as determined on a quarterly basis,
commencing on the last Business Day of the first full calendar quarter following
the Effective Date; provided, however, that if the Allowed General Unsecured
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Claims have not been paid in full in accordance with the General Unsecured Claim
Recovery Schedule by the end of the two-year period commencing on the Effective
Date, then holders of Allowed Investor Claims will receive no share of Net
Distributable Cash until the holders of Allowed General Unsecured Claims are
paid in full in accordance with the General Unsecured Claim Recovery Schedule.
Following completion of the payments to Allowed General Unsecured Claims in
accordance with the General Unsecured Claim Recovery Schedule, the holders of
Allowed Investor Claims shall receive one hundred percent (100%) of Net
Distributable Cash from the Liquidating Trusts.
(b) Holders of Allowed Collateralized Investor Claims pursuant to
Section 5.06(a) shall be entitled to the Collateralized Investor Premium.
Holders of Allowed Investor Claims shall receive their share of the first
$80,000,000 of distributions on a Pro Rata basis. When an aggregate of
$80,000,000 has been distributed to holders of Allowed Investor Claims, the
holders of the Allowed Collateralized Investor Claims shall receive
approximately 93.0674% of the amount of the distributions to be made to holders
of Allowed Investor Claims, which amount shall be distributed to the holders of
the Allowed Collateralized Investor Claims on a Pro Rata basis, and
approximately 6.9326% of the amount of the distributions to be made to holders
of Allowed Investor Claims shall be distributed on a Pro Rata basis to holders
of Allowed Unsecured Investor Claims; provided, that when the aggregate amount
of distributions to holders of Allowed Investor Claims exceeds $160,000,000,
holders of Allowed Investor Claims shall receive their share of all
distributions on a Pro Rata basis; and provided further that the aggregate
Voluntary Collateralized Investor Election Amount, if any, for any Distribution
Date shall be distributed on a Pro Rata basis to the holders of Allowed
Unsecured Investor Claims.
For purposes of calculating the pro-rata percentage of the distributions to
be distributed to the holders of Allowed Collateralized Investor Claims in
respect of the Collateralized Investor Premium, the total amount of
Collateralized Investor Claims is $448,237,077.54 and the total amount of
Unsecured Investor Claims is $137,177,731.68, as of November 9, 1999. The
Collateralized Investor Claims represent 76.5674% of the Investor Claims, and
the Unsecured Investor Claims represent 23.4326% of the Investor Claims.
(c) The aggregate Voluntary Investor Claim Waiver Amount, if any, for
any Distribution Date shall be distributed on a Pro Rata basis to the holders of
Allowed Investor Claims.
(d) If the holders of the Allowed General Unsecured Claims are not
paid in full in accordance with the Plan by the end of the two year period
commencing on the Effective Date, the Liquidating Trustee shall make no
distributions of Net Distributable Cash to the holders of the Allowed Investor
Claims until the Distribution Date on which the holders of the Allowed General
Unsecured Claims are paid in full in accordance with the Plan.
(e) No holder of an Allowed Investor Claim shall receive an aggregate
amount of distributions from the Trust that is in excess of their Allowed
Investor Claim until all holders of Allowed Investor Claims receive an aggregate
amount of distributions from the Trust equal to their Allowed Investor Claims.
(f) The aggregate Voluntary Collateralized Investor Election Amount
for any Distribution Date, if any, shall be distributed on a Pro Rata basis to
the holders of Allowed Unsecured Investor Claims.
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Section 5.07 DISTRIBUTION TO THE HOLDERS OF GENERAL UNSECURED CLAIMS.
(a) On each Distribution Date, the Liquidating Trustee shall withdraw
from the Collection Account and distribute to each holder of an Allowed General
Unsecured Claim as of the applicable record date, an amount equal to such
holder's Pro Rata share of GUC-Net Distributable Cash based on the General
Unsecured Claims Distribution Percentage until the holders of the Allowed
General Unsecured Claims receive the full amount due to them in accordance with
the General Unsecured Claims Recovery Schedule.
(b) If any holder of an Allowed General Unsecured Claim has not
received the full amount payable to such holder in accordance with the General
Unsecured Claim Recovery Schedule by the end of the two-year period commencing
on the Effective Date, then on each Distribution Date subsequent to the end of
such period, the Liquidating Trustee shall withdraw from the Collection Account
and distribute to each holder of an Allowed General Unsecured Claim such
holder's Pro Rata share of all Net Distributable Cash for each calendar quarter,
commencing on the ninth full calendar quarter following the Effective Date,
until the General Unsecured Claim Distribution Percentage to which each holder
of an Allowed General Unsecured Claim is entitled has been paid.
(c) In no event shall the aggregate of all payments to each holder of
an Allowed General Unsecured Claim exceed the percetage amount to be paid to
such holder as set forth on the General Unsecured Claim Recovery Schedule unless
the Bankruptcy Court orders a higher percetage recovery following an objection
filed by the holder of a General Unsecured Claim as set forth in the Plan.
Section 5.08 DISTRIBUTIONS OF THE NET LITIGATION RECOVERY.
On each Distribution Date, the Liquidating Trustee shall withdraw from the
Litigation Account and distribute to each holder of an Allowed Investor Claim as
of the applicable Record Date, an amount equal to such holder's Pro Rata share
of funds on deposit in the Litigation Account on the related Transfer Date.
Section 5.09 DISTRIBUTIONS OF THE TRUST/XXX LITIGATION RECOVERY.
On each Distribution Date, the Liquidating Trustee shall withdraw from the
Trust/XXX Account and distribute to each holder of an Allowed Investor Claim
relating to an investment in an XXX or trust as of the applicable Record Date,
an amount equal to such holder's Pro Rata share of funds on deposit in the
Trust/XXX Account on the related Transfer Date.
Section 5.10 DELIVERY OF DISTRIBUTIONS.
Distributions will be made by the Liquidating Trustee or by the Disbursing
Agent at the direction of the Liquidating Trustee as follows:
(a) At the addresses set forth in the proofs of Claim filed by holders
of Claims (or the last known addresses of such holders if no proof of Claim is
filed or if the Liquidating Trustee has been notified of a change of address);
(b) At the addresses set forth in written notices of address change
delivered to the Liquidating Trustee after the date of any related proof of
Claim;
(c) At the addresses reflected in the Schedules if no proof of Claim
has been filed and the Liquidating Trustee has not received a written notice of
change of address; or
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(d) At the addresses reflected in the Register as of the applicable
Record Date.
If any distribution to a Beneficiary is returned as undeliverable, no
further distributions to such Beneficiary will be made unless and until the
Liquidating Trustee is notified of the Beneficiary's then current address, at
which time all missed distributions will be made to the holder without interest.
Undeliverable distributions shall be returned to the Liquidating Trustee until
such distributions are claimed, and will be deposited by the Liquidating Trustee
into the Holding Account. All claims for undeliverable distributions shall be
made on or before the third anniversary of the Distribution Date on which such
distribution was made. After such date, all such unclaimed property will revert
to the Trust, and the Liquidating Trustee will withdraw the amount of such
unclaimed distributions from the Holding Account and deposit such amount into
the Collection Account for further distribution in accordance with the Plan. The
claim of any Beneficiary with respect to such unclaimed property will be
discharged and forever barred, notwithstanding any federal or state escheat law
to the contrary.
Section 5.11 OPERATING EXPENSES.
The Liquidating Trustee will utilize the reserves (which need not be in
separate accounts) as follows:
(a) In accordance with the Plan and subject to any agreements
regarding budgets for the operation of the Trust, the Liquidating Trustee will
draw on amounts available in the Collection Account to pay all costs and
expenses related to the care and maintenance of the Assets, including, without
limitation (i) costs of selling the Assets and (ii) any expenses of the Trust
(including the fees and expenses of the Liquidating Trustee, the Liquidating
Trust Board and their professionals in pursuing, without limitation, the
Litigation Claims or otherwise).
(b) The Liquidating Trustee will draw on the Collection Account to pay
all costs and expenses related to the prosecution of any Avoidance Actions or
objections to Disputed Claims, including, but not limited to, the fees and
expenses of the Liquidating Trustee and the fees and expenses of professionals
retained by the Liquidating Trustee to assist in the prosecution of such actions
or objections.
Section 5.12 FINAL DISTRIBUTION.
If the Liquidating Trustee shall determine that the remaining assets of the
Trust may be conveniently distributed, or if the existence of the Trust shall
terminate, the Liquidating Trustee shall, as expeditiously as is consistent with
the conservation and protection of the Trust Assets, distribute the Trust Assets
to the Beneficiaries.
Section 5.13 DE MINIMIS DISTRIBUTIONS.
The Liquidating Trustee shall not be required to make any distribution,
except on the Final Distribution Date, (i) to any Beneficiaries if the aggregate
amount of such distribution is less than $5,000,000 or (ii) to any Beneficiary
if the amount to be distributed is $5.00 or less. If a Beneficiary does not
receive a distribution due to the provisions of this paragraph on any
Distribution Date, then the Claim (so long as it is an Allowed Claim) will
remain eligible for distributions on any subsequent Distribution Date, subject
to the provisions of this paragraph. In all events, the holders of Allowed
Claims which have not received a distribution on any previous Distribution Dates
because of this provision, will receive such distribution on the Final
Distribution Date.
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Section 5.14 REPORTS.
The Liquidating Trustee shall file with the Securities and Exchange
Commission all reports mandated pursuant to Section 13 of the Securities
Exchange Act of 1934, as amended and forward a copy of such filings to the
Liquidating Trust Board. Upon the written request of any Beneficiary, the
Liquidating Trustee shall forward to a requesting Beneficiary copies of the
requested reports made available to the Securities and Exchange Commission.
Section 5.15 TAX AND OTHER REPORTS TO BENEFICIARIES.
As soon as practicable after the end of each Fiscal Year, and as soon as
practicable upon termination of the Trust, the Liquidating Trustee shall submit
to each Beneficiary appearing on its records as of the end of such Fiscal Year
or such date of termination a separate statement for each Beneficiary setting
forth the Beneficiary's share of items of income, gain, loss, deduction or
credit and will instruct all such Beneficiaries to report such items on their
United States federal and applicable state income tax returns. In addition, the
Liquidating Trustee shall deliver to each Beneficiary, an annual statement on
Form K-1 with the information necessary for each Beneficiary to prepare their
tax returns and will furnish a statement of account to a custodian which holds a
Beneficiary's XXX which evidences such Beneficiary's uncertificated beneficial
interest in the Trust.
Section 5.16 TAX RETURNS/TAX MATTERS.
(a) The Liquidating Trustee shall file all tax returns and other
filings with governmental authorities on behalf of the Trust and the Trust
Assets it holds for time periods ending on or before termination of this Trust.
Subject to definitive guidance from the Internal Revenue Service or a court of
competent jurisdiction to the contrary (including the issuance of applicable
Treasury Regulations, the receipt by the Liquidating Trustee of a private letter
ruling if the Liquidating Trustee so requests one, or the receipt of an adverse
determination by the Internal Revenue Service upon audit if not contested by the
Liquidating Trustee) the Liquidating Trustee shall file tax returns for the
Trust as a grantor trust pursuant to Treasury Regulations Section 1.671-4(a).
The Liquidating Trustee' filings shall also include requests for determination
of tax under Section 505(b) of the Bankruptcy Code (to the extent applicable)
and responses to any tax audits. The Liquidating Trustee shall make available
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
Trust Assets in withholding or paying over any amounts required by law
(including tax law) to be withheld or paid by the Trust Assets in connection
with the transfer and assignment of the Assets to the Trust pursuant to the
Plan. The Liquidating Trustee is further entitled to deduct any United States
federal or applicable 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.
(c) All net income of the Trust and net proceeds from the disposition
of the Trust Assets shall be subject to United States federal and applicable
state income taxation in the year such net income or net proceeds are realized,
whether or not such amounts are immediately distributed to the Beneficiaries or
retained by the Liquidating Trustee in such reserves necessary to meet the
Disputed Claims and maintain or enhance the liquidation value of the Trust
Assets.
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Section 5.17 ALLOCATIONS.
(a) All income, expense and loss realized upon full liquidation of the
Trust Assets shall be allocated to each Beneficiary (in proportion to the amount
of the Allowed Claim of each Holder of each Beneficiary).
(b) Notwithstanding Section 5.17(a) above, the Liquidating Trustee may
adopt such other methods of allocating Trust taxable income and loss for federal
and applicable state income tax purposes as it deems reasonable, appropriate and
necessary to ensure that all allocations are consistent with the Plan and the
Beneficiaries' economic interests in the Assets.
Section 5.18 LIMITATIONS ON LIQUIDATING TRUSTEE.
(a) The Liquidating Trustee shall not at any time, on behalf of the
Trust or Beneficiaries, (i) enter into or engage in any trade or business, and
no part of the Trust Assets or the proceeds, revenue or income therefrom shall
be used or disposed of by the Trust in furtherance of any trade or business,
except to the extent reasonably necessary to preserve and enhance the
liquidation value of the Trust Assets, or (ii) except as provided below,
reinvest any assets.
(b) All moneys and other assets received by the Liquidating Trustee
shall, until distributed or paid over as herein provided, be held in trust for
the benefit of the Beneficiaries, but need not be segregated from other Trust
Assets, unless and to the extent required by law or as otherwise specified in
this Trust Agreement.
(c) The Liquidating Trustee shall be restricted to the holding,
collection, conservation, protection and administration of the Trust Assets in
accordance with the provisions of this Trust Agreement and the Plan, and the
payment and distribution of amounts as set forth herein for the purposes set
forth in this Trust Agreement. The scope of any permissible investments shall be
limited to include only those investments, or shall be expanded to include any
additional investments, as the case may be, that a liquidating trust, within the
meaning of Treasury Regulation Section 301.7701-4(d), may be permitted to hold,
pursuant to the Treasury Regulations, or any modification in the Internal
Revenue Service guidelines, whether set forth in Internal Revenue Service
rulings, other Internal Revenue Service pronouncements or otherwise. Any
determination by the Liquidating Trustee as to what actions are in the best
interests of the Trust shall be determinative.
Section 5.19 ABANDONMENT.
On thirty (30) days' written notice to any Creditor which has a lien on the
property to be abandoned, and pursuant to the Plan, the Liquidating Trustee may
abandon any property which it determines in its reasonable discretion to be of
DE MINIMIS value or burdensome to the Trust, including any pending adversary
proceeding or other legal action commenced or commenceable by the Trust. If the
affected Creditor provides a written objection to the Liquidating Trustee prior
to the expiration of the thirty (30) day period with respect to the proposed
abandonment of such property, then such property may only be abandoned pursuant
to an application made to the Bankruptcy Court.
Section 5.20 FURTHER AUTHORIZATION.
The Liquidating Trustee and the Liquidating Trust Board shall be entitled
to seek such orders, judgments, 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.
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Section 5.21 PROTECTION OF PERSONS DEALING WITH THE LIQUIDATING TRUSTEE.
Any transfer of the Trust Assets, or any part thereof, shall bind the
Beneficiaries and shall be effective to transfer all right, title and interest
of the Liquidating Trustee and the Beneficiaries in and to the Trust Assets or
such part thereof. No purchaser of the Trust Assets or any portion thereof shall
be required to inquire as to the authorization, necessity, expediency or
regularity of such transfer or as to the application of any proceeds thereof.
Any person dealing with the Liquidating Trustee shall be fully protected in
relying upon a certificate signed by the Liquidating Trustee that he has
authority to take any action under this Trust Agreement.
ARTICLE VI
LIQUIDATING TRUST BOARD
Section 6.01 LIQUIDATING TRUST BOARD.
The five-member Liquidating Trust Board will initially be selected by the
Restructuring Committee and the Committees, subject to approval by the
Bankruptcy Court at the Confirmation Hearing. The Bankruptcy Court shall retain
jurisdiction to remove any member of the Liquidating Trust Board. The
Liquidating Trust Board shall have the authority and responsibility to oversee,
review, and guide the activities and performance of the Liquidating Trustee and
shall have the authority to remove the Liquidating Trustee for any reason,
including Cause which removal shall be effective upon approval by the Bankruptcy
Court. The Liquidating Trustee shall consult with and provide information to the
Liquidating Trust Board in accordance with and pursuant to the terms of the
Plan.
The Liquidating Trust Board shall have the authority to select and engage
such Persons, and select and engage such professional advisors, including,
without limitation, any Professional previously retained by the Debtors or the
Committees, in accordance with the terms of the Plan and this Trust Agreement,
as the Liquidating Trust Board deems necessary and desirable to assist the
Liquidating Trust Board in fulfilling its obligations under this Trust Agreement
and the Plan, and the Liquidating Trust shall pay the reasonable fees of such
Persons and reimburse such Persons for their reasonable out-of-pocket costs and
expenses.
Section 6.02 MANNER OF ACTING.
A majority of the total number of members of the Liquidating Trust Board
then in office shall constitute a quorum for the transaction of business at any
meeting of the Liquidating Trust Board. The affirmative vote of a majority of
the members of the Liquidating Trust Board present at a meeting at which a
quorum is present shall be the act of the Liquidating Trust Board unless this
Trust Agreement or the Plan requires a greater percentage and except as
otherwise required by law. Any or all of the members of the Liquidating Trust
Board may participate in a regular or special meeting by, or conduct the meeting
through the use of, conference telephone or similar communications equipment by
means of which all persons participating in the meeting may hear each other, in
which case any required notice of such meeting may generally describe the
arrangements (rather than or in addition to the place) for the holding thereof.
Any member of the Liquidating Trust Board participating in a meeting by this
means is deemed to be present in person at the meeting.
Any member of the Liquidating Trust Board who is present at a meeting of
the Liquidating Trust Board when action is taken is deemed to have assented to
the action taken unless: (i) such member of the Liquidating Trust Board objects
at the beginning of the meeting (or promptly upon his/her arrival) to holding it
or transacting business at the meeting; or (ii) his/her dissent or abstention
from the action taken is entered in the minutes of the meeting; or (iii) he/she
delivers written notice of his/her dissent or abstention to the Liquidating
27
Trust Board before its adjournment. The right of dissent or abstention is not
available to any member of the Liquidating Trust Board who votes in favor of the
action taken.
The Liquidating Trust Board may from time to time, by resolution adopted by
a majority of the Liquidating Trust Board, appoint standing or temporary
committees from its membership and vest such committees with such powers as the
Liquidating Trust Board may include in its resolution to serve until otherwise
directed by the Liquidating Trust Board. A majority of those named to any such
committee will constitute a quorum. Any committee appointed by the Liquidating
Trust Board which oversees audit or valuation issues shall have an Independent
Board Member as one of its members (if an Independent Board Member then serves
on the Liquidating Trust Board), and such Independent Board Member shall serve
as the chairperson of such committee.
Section 6.03 LIQUIDATING TRUST BOARD'S ACTION WITHOUT A MEETING.
Any action required or permitted to be taken by the Liquidating Trust Board
at a meeting may be taken without a meeting if the action is taken by unanimous
written consent of the Liquidating Trust Board as evidenced by one (1) or more
written consents describing the action taken, signed by the Liquidating Trust
Board and filed with the minutes or proceedings of the Liquidating Trust Board.
Section 6.04 TENURE, REMOVAL, AND REPLACEMENT OF THE MEMBERS OF THE
LIQUIDATING TRUST BOARD.
The authority of the members of the Liquidating Trust Board will be
effective as of the Effective Date and will remain and continue in full force
and effect until all of the Assets are liquidated in accordance with the Plan,
the Net Distributable Cash has been completely distributed in accordance with
the provisions of the Plan, all tax returns and any other filings or reports
have been filed with the appropriate state or federal regulatory authorities,
and the Order closing the Chapter 11 Cases is a Final Order. The service of the
members of the Liquidating Trust Board will be subject to the following:
(a) The members of the Liquidating Trust Board will serve until death
or resignation pursuant to subsection (b) below, or removal pursuant to
subsection (c) below;
(b) A member of the Liquidating Trust Board may resign at any time by
providing a written notice of resignation to the remaining members of the
Liquidating Trust Board and the Bankruptcy Court. Such resignation will be
effective when a successor is appointed as provided herein;
(c) Any member of the Liquidating Trust Board may be removed for Cause
by resolution of a majority of the members of the Liquidating Trust Board, with
such removal to take effect immediately upon approval by the Bankruptcy Court;
PROVIDED, HOWEVER, that the Bankruptcy Court shall retain jurisdiction to remove
or replace any member of the Liquidating Trust Board;
(d) In the event of a vacancy in any of the positions of the
Liquidating Trust Board (whether by removal, death or resignation), the
Liquidating Trustee and/or the remaining members of the Liquidating Trust Board
may nominate a Person to fill such vacancy, and such nomination shall be
approved by a majority vote of the remaining members of the Liquidating Trust
Board including the Liquidating Trustee and approved by the Bankruptcy Court.
Furthermore, the appointment of a successor member of the Liquidating Trust
Board will be evidenced by the filing with the Bankruptcy Court of a notice of
appointment, which notice will include the name, address, and telephone number
of the successor member of the Liquidating Trust Board.
28
(e) In the event of a vacancy in all of the positions of the
Liquidating Trust Board due to the death or simultaneous resignation of all of
the members of the Liquidating Trust Board, then the Liquidating Trustee shall
nominate five Persons to fill such vacancies and such successor members shall be
appointed, with such appointment to be effective upon approval of the Bankruptcy
Court and a majority vote of the holders of the beneficial interests in the
Trust. Furthermore, the appointment of the successor members of the Liquidating
Trust Board will be evidenced by the filing with the Bankruptcy Court of a
notice of appointment, which notice will include the name, address, and
telephone number of the successors to the former members of the Liquidating
Trust Board; and
(f) Immediately upon appointment of any successor member of the
Liquidating Trust Board, all rights, powers, duties, authority, and privileges
of the predecessor member of the Liquidating Trust Board hereunder will be
vested in and undertaken by the successor member of the Liquidating Trust Board
without any further act; and the successor member of the Liquidating Trust Board
will not be liable personally for any act or omission of the predecessor member
of the Liquidating Trust Board.
ARTICLE VII
DURATION OF TRUST
Section 7.01 DURATION OF TRUST.
This Trust shall terminate on the later of: (i) the date of entry by the
Bankruptcy Court of the final decree which fully and finally closes the Chapter
11 Cases (the "Final Decree"); or (ii) the date upon which all of the Trust
Assets has been distributed to the Beneficiaries and there are no remaining
assets expected to be received in the Trust Assets, PROVIDED, HOWEVER, that the
Trust shall terminate no later than the fifth (5th) anniversary of the Effective
Date. On or prior to such termination date, the Bankruptcy Court, upon motion by
a party in interest, may extend the term of the Trust upon a finding by the
Bankruptcy Court that the extension is necessary for the liquidating purposes of
the Trust. Extensions may be obtained so long as each extension is approved by
the Bankruptcy Court six months prior to the expiration of the original term and
each extended term.
Section 7.02 CONTINUANCE OF TRUST FOR WINDING UP.
After the termination of the Trust and for the purpose of liquidating and
winding up the affairs of the Trust, the Liquidating Trustee shall continue to
act as such until its duties have been fully performed. Upon distribution of the
entire Trust Assets and entry of the Final Decree and unless ordered otherwise
by the Bankruptcy Court as part of the Final Decree, the Liquidating Trustee
shall retain for a period of two (2) years the books, records, Beneficiary
lists, Register, and certificates and other documents and files which shall have
been delivered to or created by the Liquidating Trustee. Subject to the Final
Decree, at the Liquidating Trustee's discretion, all of such records and
documents may, but need not, be destroyed at any time after two (2) years from
the completion and winding up of the affairs of the Trust. Except as otherwise
specifically provided herein, upon the discharge of all liabilities of the
Trust, final distribution of the entire Trust Assets and entry of the Final
Decree, the Liquidating Trustee shall have no further duties or obligations
hereunder.
29
ARTICLE VIII
INDEMNIFICATION; LIMITATIONS ON LIABILITY
Section 8.01 GENERAL INDEMNIFICATION.
The Trust shall indemnify and hold harmless any Person 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 is or was the Liquidating
Trustee, a member of the Liquidating Trust Board or an employee of the Trust, or
an agent, attorney, accountant or other professional for the Liquidating Trustee
or the Liquidating Trust Board, 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 expense incurred by any such entity in defending any
such action, suit or proceeding may be paid by the Trust in advance of the
institution or final disposition of such action, suit or proceeding, if
authorized by the Liquidating Trustee and the Liquidating Trust Board. The
Liquidating Trustee may in its discretion purchase and maintain insurance on
behalf of any Person who is or was a beneficiary of this provision.
From and after the Effective Date, the Trust will indemnify and hold
harmless (i) the Restructuring Committee, (ii) the acting General Counsel of the
Debtors, (iii) the Committees, (iv) the Liquidating Trustee, (v) the Liquidating
Trust Board, (vi) all of the respective professional advisors, attorneys,
consultants, or agents of the Debtors, the Non-Debtor Affiliates and the parties
identified in clauses (i) through (v), and (vii) all of the members or former
members, agents, employees, representatives, financial advisors, attorneys,
consultants, affiliates, successors or assigns of the parties identified in
clauses (i) through (vi) (the parties in clauses (i) through (vii) collectively,
the "Indemnified Parties") from against any and all liabilities (fixed or
contingent), obligations, losses, claims, actions, suits, costs, damages,
expenses (including legal fees and expenses), disbursements, amounts paid in
settlement, judgments, fines of any kind and nature whatsoever (each, an
"Indemnity Claim") which may at any time be made, assessed, imposed on, asserted
against or otherwise incurred by any Indemnified Party in connection with,
relating to, or arising out of, the Chapter 11 Cases, the preparation for the
Chapter 11 Cases, any settlement related to the Chapter 11 Cases, the
negotiation and execution of the Plan, the negotiation and pursuit of
Confirmation of the Plan, the consummation of the Plan, or the administration of
the Plan, EXCEPT FOR such Indemnified Party's acts or omissions constituting
willful misconduct, as finally determined by a court of competent jurisdiction.
In each instance where there is an Indemnity Claim or potential Indemnity Claim
for which any Indemnified Party is or may be entitled to seek indemnification,
the Indemnified Party must notify the Liquidating Trustee in writing of such
Indemnity Claim and shall furnish to the Liquidating Trustee copies of all
notices, service of process, pleadings and other pertinent written
communications from the party asserting such Indemnity Claim. The Trust will
promptly advance any legal fees and expenses incurred by an Indemnified Party
and reimburse any Indemnity Claim. If an Indemnified Party's actions or
omissions are found to constitute willful misconduct, as finally determined by a
court of competent jurisdiction, any funds transferred by the Trust to such
Indemnified Party in connection with the related Indemnity Claim shall be
promptly reimbursed. Any Indemnified Party may in its sole discretion retain its
choice of legal counsel in connection with any Indemnity Claim. No former
officer, director, employee, agent or insider of the Debtors or the Non-Debtor
Affiliates is hereby indemnified for any of their actions or omissions prior to
the Petition Date, except to the extent set forth above in this Section 8.01.
Section 8.02 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 or any
member of the Liquidating Trust Board personally, or against any agent,
attorney, accountant or other professional for the Liquidating Trustee or the
Liquidating Trust Board, by legal or equitable proceedings, or by virtue of any
statute or otherwise, nor upon any promise, contract, instrument, undertaking,
30
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
Trust 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
Trust Assets.
Section 8.03 LIMITED LIABILITY.
The Liquidating Trustee shall not be liable for any act it may do or omit
to do as the Liquidating Trustee while acting in good faith and in the exercise
of its reasonable 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 reasonable judgment; nor shall the Liquidating Trustee be liable
in any event, except to the extent determined to be the result of its own gross
negligence or willful fraud or willful misconduct. The foregoing limitation on
liability will apply equally to the agents and/or employees of the Liquidating
Trustee acting on behalf of the Liquidating Trustee in the fulfillment of the
Liquidating Trustee's duties under the Plan and this Trust Agreement. Neither
the Liquidating Trustee nor any of the Beneficiaries shall be personally liable
with respect to any liabilities or obligations of the Trust or any liabilities
or obligations relating to the Trust Assets, including, without limitation,
those arising under this Trust Agreement or with respect to the Trust or the
Trust Assets, and all persons dealing with the Trust must look solely to the
Trust Assets for the enforcement of any claims against the Trust or the Trust
Assets.
Section 8.04 NO LIABILITY FOR ACTS OF PREDECESSOR.
No successor Liquidating Trustee shall be in any way responsible or liable
for the acts or omissions of any predecessor Liquidating Trustee in office prior
to the date on which such Person becomes the Liquidating Trustee, nor shall such
successor Liquidating Trustee 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 Trust
Assets furnished to such successor Liquidating Trustee by the predecessor
Liquidating Trustee and shall further be responsible only for those Trust Assets
included in such statement.
Section 8.05 LIMITATION ON LIABILITY OF LIQUIDATING TRUST BOARD.
Subject to any applicable law, a member of the Liquidating Trust Board will
not be liable for any act he or she may do or omit to do as a member of the
Liquidating Trust Board hereunder while acting in good faith and in the exercise
of his or her reasonable judgment; nor will any member of the Liquidating Trust
Board be liable in any event except for his or her own gross negligence, willful
fraud or willful misconduct. The foregoing limitation on liability will apply
equally to the agents, professionals, and/or employees of a member of the
Liquidating Trust Board acting on behalf of the member of the Liquidating Trust
Board in the fulfillment of the member's duties hereunder.
Section 8.06 EXPRESS EXCULPATORY CLAUSES IN INSTRUMENTS.
As far as practicable, the Liquidating Trustee shall cause any written
instrument creating an obligation of the Trust to include a reference to this
Trust Agreement and to provide that none of the members of the Liquidating Trust
Board, the Beneficiaries or the Liquidating Trustee shall be liable thereunder
and that the other parties to such instrument shall look solely to the Assets
for the payment of any claim thereunder or the performance thereof; PROVIDED,
HOWEVER, that the omission of such provision from any such instrument shall not
31
render any member of the Liquidating Trust Board, any Beneficiary or the
Liquidating Trustee liable nor shall the Liquidating Trustee be liable to anyone
for such omission.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01 NOTICES.
All notices, requests or other communications to the parties hereto shall
be in writing and shall be sufficiently given only if (i) delivered in person;
(ii) sent by electronic facsimile communication, as evidenced by a confirmed fax
transmission report; (iii) sent by registered or certified mail, return receipt
requested; or (iv) sent by commercial delivery service or courier. Until a
change of address is communicated, as provided below, all notices, requests and
other communications shall be sent to the parties at the following addresses or
facsimile numbers:
If to the Liquidating Trustee, to:
Xxxxxxx X. Xxxxxx, Xx.
c/o Patton Xxxxx LLP
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Tel: 000-000-0000
Fax: 000-000-0000
E-mail: xxxxxxx@xxxxxxxxxxx.xxx
If to the Liquidating Trust Board, to:
BFA Liquidation Trust Liquidating Trust Board
0000 Xxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Tel: 000-000-0000
Fax: 000-000-0000
All notices shall be effective and shall be deemed delivered (i) if by personal
delivery, delivery service or courier, on the date of delivery; (ii) if by
electronic facsimile communication, on the date of transmission of the
communication; and (iii) if by mail, on the date of receipt. Any party from time
to time may change its address, facsimile number or other information for the
purpose of notices to that party by giving notice specifying such change to the
other party hereto.
Section 9.02 EFFECTIVENESS.
This Trust Agreement shall become effective upon the Effective Date of the
Plan.
Section 9.03 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.
32
Section 9.04 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 Arizona.
Section 9.05 SEVERABILITY OF PROVISIONS.
Any provision of this Trust Agreement which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions of this Trust Agreement or affecting the validity or enforceability
of any of the terms or provisions of this Trust Agreement in any other
jurisdiction.
Section 9.06 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.
Section 9.07 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 Trust Assets or for a partition thereof, nor shall it
otherwise affect the rights and obligations of any Beneficiary.
Section 9.08 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 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 validity, expediency or propriety of any such
transaction by the Liquidating Trustee or any agent of the Liquidating Trustee.
Section 9.09 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.
33
Section 9.10 RELATIONSHIP CREATED.
The only relationship created by this Trust Agreement is the relationship
between the Liquidating Trustee, the Liquidating Trust Board 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.
Section 9.11 TAX IDENTIFICATION NUMBERS.
The Liquidating Trustee may require any Beneficiary to furnish to the
Liquidating Trustee, (i) its employer or taxpayer identification number as
assigned by the Internal Revenue Service, and (ii) such other records or
documents necessary to satisfy the Liquidating Trustee's tax reporting
obligations (including, but not limited to, certificates of non-foreign status).
The Liquidating Trustee may condition the payment of any distribution to any
Beneficiary upon receipt of such identification number and requested documents.
Section 9.12 AMENDMENT OF TRUST AGREEMENT.
This Trust Agreement may be amended from time to time, without modifying
the Plan, with the approval of the Liquidating Trustee and the Liquidating Trust
Board, except that the this Trust Agreement shall not be amended to materially
alter the priority of Claims or distribution scheme under the Plan. In addition,
any amendment of the provisions of this Trust Agreement relating to the
governance of the Trust or any other material amendment of this Trust Agreement
shall only be effective upon the approval of the Liquidating Trustee, the
Liquidating Trust Board and the Bankruptcy Court.
34
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.
/s/ Xxxxxxx X. Xxxxxx, Xx.
--------------------------------------------
Xxxxxxx X. Xxxxxx, Xx.
"LIQUIDATING TRUSTEE"
/s/ Xxxx X. Xxxxxxx
--------------------------------------------
Xxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxx
--------------------------------------------
Xxxxxxx X. Xxxx
/s/ Xxxx X. Xxxxxx
--------------------------------------------
Xxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxx X. Xxxxxxxxx
--------------------------------------------
Xxxx X. Xxxxxxxxx
"LIQUIDATING TRUST BOARD"
35
BAPTIST FOUNDATION OF ARIZONA
BAPTIST FOUNDATION OF ARIZONA, an Arizona
nonprofit corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Baptist Foundation of Arizona
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
FOUNDATION ASSET MANAGEMENT, INC., an
Arizona nonprofit corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Foundation Asset Management, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
THE FOUNDATION COMPANIES, INC., an
Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
The Foundation Companies, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
FOUNDATION ADMINISTRATIVE SERVICES, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Foundation Administrative Services, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
36
FOUNDATION MORTGAGE CORPORATION,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Foundation Mortgage Corporation
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
BAPTIST FOUNDATION CREDIT CORPORATION,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Baptist Foundation Credit Corporation
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
FOUNDATION INVESTMENT ADVISORS, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Foundation Investment Advisors, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
SUMMIT ASSET MANAGEMENT CORPORATION,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Summit Asset Management Corporation
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
37
FOUNDATION CONSULTING, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Foundation Consulting, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
THE PARK AT JUNIPER RIDGE, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
the Park at Juniper Ridge, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
FOUNDATION INVESTMENTS, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Foundation Investments, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
MINISTRY RESOURCE CORPORATION,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Ministry Resource Corporation, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
38
BFCC I, Inc., an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
BFCC I, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
FOUNDATION SOUTHWINDS, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Foundation Southwinds, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
THE INN AT TONOPAH, INC.,
a Texas corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
The Inn at Tonopah, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
FOUNDATION SURPRISE CENTER, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Foundation Surprise Center, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
39
FOUNDATION MARINA ENTERPRISES, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Foundation Marina Enterprises, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
FOUNDATION PROPERTY INVESTORS, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Foundation Property Investors, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
FOUNDATION INSURANCE CO., LTD. (CAYMAN),
a Cayman Islands corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Foundation Insurance Co., Ltd. (Cayman)
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
FOUNDATION LEASING CORPORATION,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Foundation Leasing Corporation
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
40
FOUNDATION COBBLESTONE CORPORATION,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Foundation Cobblestone Corporation
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
FOUNDATION SOUTHWEST LAND EXCHANGE, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Foundation Southwest Land Exchange, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
FOUNDATION PONDEROSA TRAILS CORPORATION,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Foundation Ponderosa Trails Corporation
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
FOUNDATION HIDDEN SPRINGS, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Foundation Hidden Springs, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
41
FOUNDATION KING ISLAND, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Foundation King Island, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
FOUNDATION DEVELOPMENT ALABAMA, INC.,
an Alabama corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Foundation Development Alabama, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
FOUNDATION ALABAMA INVESTORS, INC.,
an Alabama corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Foundation Alabama Investors, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
SOUTHWINDS MARINA, LLC,
a Delaware limited liability company
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Southwinds Marina, LLC
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
42
GUAM HOLDING CORPORATION,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Guam Holding Corporation
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
FOUNDATION HAULOVER, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Foundation Haulover, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
ARIZONA SOUTHERN BAPTIST NEW CHURCH VENTURES, INC.
ARIZONA SOUTHERN BAPTIST NEW CHURCH
VENTURES, INC., an Arizona nonprofit
corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Arizona Southern Baptist New Church
Ventures, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
CFP PROPERTIES, INC., an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
CFP Properties, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
43
CHRISTIAN FINANCIAL PARTNERS, INC.,
an Arizona nonprofit corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Christian Financial Partners, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
CHRISTIAN ASSET MANAGEMENT, INC,
an Arizona nonprofit corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Christian Asset Management, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
VALLEY ASSET MANAGEMENT, INC.,
an Arizona nonprofit corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Valley Asset Management, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
NEW CHURCH VENTURES PROPERTIES, INC.,
an Arizona nonprofit corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
New Church Ventures Properties, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
44
NEW CHURCH VENTURES CREDIT CORPORATION,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
New Church Venture Credit Corporation
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
VENTURE MEDIA SERVICES, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Venture Media Services, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
MCF CORPORATION, an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
MCF Corporation
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
MCF HOUSING DEVELOPMENT, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
MCF Housing Development, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
45
ASC SAN ANTONIO VENTURES, I,
a Texas general partnership
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
ASC San Antonio Ventures, I
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
E.V.I.G., INC.
E.V.I.G., INC., an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
E.V.I.G., Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
H & S CAPITAL INVESTMENT, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
H & S Capital Investment, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
MICRONESIAN LEASEHOLD CORPORATION,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Micronesian Leasehold Corporation
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
46
SANTA FE TRAIL RANCH II, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Santa Fe Trail Ranch II, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
A.L.O., INC.
A.L.O., INC., an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
A.L.O., Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
S.C.S.C., INC., an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
S.C.S.C., Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
ARIZONA RETAIL SHOPPING CENTERS, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Arizona Retail Shopping Centers, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
47
FIRST MORTGAGE ACCEPTANCE CORPORATION, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
First Mortgage Acceptance Corporation,
Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
ALBUQUERQUE GARAGE, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Albuquerque Garage, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
ALBUQUERQUE TOWER, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Albuquerque Tower, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
SELECT TRADING GROUP, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Select Trading Group, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
00
XXXXXXXXX XXXX XXXXXXX, INC.,
an Alabama corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Northwood Park Alabama, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
FIRST ACCEPTANCE CORPORATION, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
First Acceptance Corporation, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
HFD, INC., an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
HFD, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
ALO PLEASANT POINT, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
ALO Pleasant Point, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
49
LEEWARD HOLDINGS, INC., a Hawaii corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Leeward Holdings, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
VALLEY REAL ESTATE OPPORTUNITIES, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Valley Real Estate Opportunities, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
FMC HOLDING CORP., an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
FMC Holding Corp.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
STILL WATERS LAND COMPANY, INC.,
an Alabama corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Still Waters Land Company, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
50
IRONWOOD APARTMENTS, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Ironwood Apartments, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
MARINE DRIVE CAPITAL INVESTMENT, INC.,
a Guam corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Marine Drive Capital Investment, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
SUN BAR HEADQUARTERS RANCH, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Sun Bar Headquarters Ranch, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
AMERICAN HOMEBUYERS, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
American Homebuyers, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
51
DESERT HOLDINGS, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Desert Holdings, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
WESCO REALTY CORPORATION,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Wesco Realty Corporation
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
WEST PHOENIX ESTATES, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
West Phoenix Estates, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
RELIABLE INVESTMENTS, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Reliable Investments, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
52
SADDLE MOUNTAIN RV PARK, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Saddle Mountain RV Park, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
EQUITY CAPITAL INVESTORS, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Equity Capital Investors, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
DESERT SKY RANCHES, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Desert Sky Ranches, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
POLYPROPERTIES, INC., an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Polyproperties, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
53
WEST VALLEY RANCHES, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
West Valley Ranches, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
LA PAZ CAPITAL INVESTMENT, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
La Paz Capital Investment, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
PORT PERRY MARKETING CORP.,
a Missouri corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Port Perry Marketing Corp.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
THEATRE LEASING, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Theatre Leasing, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
54
NEW MEXICO PARKING CORP.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
New Mexico Parking Corp.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
POLYPROPERTIES (GUAM), INC.,
a Guam corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Polyproperties (Guam), Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
BARRIGADA EQUITIES, INC., a Guam corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Barrigada Equities, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
TAMUNING CAPITAL INVESTMENT, INC.,
a Guam corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Tamuning Capital Investment, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
55
NORTHWOOD PARK, INC., an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Northwood Park, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
NON-DEBTOR AFFILIATES
BAPTIST FOUNDATION OF ARIZONA
NON-DEBTOR AFFILIATES
TFCI CHAPARRAL PINES, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
TFCI Chaparral Pines, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
MULTI-FAMILY USA HOLDING, LLC,
a Delaware limited liability company
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Multi-Family USA Holding, LLC
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
SOVEREIGN PROPERTY GROUP, LLC,
a Delaware limited liability company
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Sovereign Property Group, LLC
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
56
WHITEHALL, LLC,
an Indiana limited liability company
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Whitehall, LLC
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
OPCOM, INC., an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
OpCom, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
FOUNDATION AIRFIELD, LLC,
an Arizona limited liability company
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Foundation Airfield, LLC
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
FOUNDATION NEWCAL, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Foundation Newcal, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
57
ARIZONA SOUTHERN BAPTIST NEW CHURCH VENTURES
NON-DEBTOR AFFILIATES
JUNIPER RIDGE MARKETING, INC.,
an Arizona corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Juniper Ridge Marketing, Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
MICRONESIAN LEASEHOLD CORPORATION (GUAM),
a Guam corporation
By: The Restructuring Committee of Baptist
Foundation of Arizona, on behalf of
Micronesian Leasehold Corporation (Guam)
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Member of Committee
"TRANSFERORS"
587
EXHIBIT A
PLAN
[SEE EXHIBIT A TO THE CONFIRMATION ORDER]
A-1
EXHIBIT B
CONFIRMATION ORDER
B-1
SCHEDULE 1
LIST OF CHAPTER 11 AFFILIATES
[SEE EXHIBIT 1 TO THE PLAN]
