EXHIBIT 10.6.1
CARBON RECOVERY CORPORATION
LIQUIDATING TRUST AGREEMENT
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THIS LIQUIDATING TRUST, made this 22nd day of September, 2006, by and between:
CARBON RECOVERY CORPORATION, a New Jersey corporation having its principal
office located at Bloomfield Business Park, 000 Xxxxxxxxxx Xxxxx, Xxxx 0, Xxxx
Xxxxxx, Xxx Xxxxxx 00000, hereinafter referred to as CRC;
AND
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OLDE MONMOUTH STOCK TRANSFER CO., INC., a New Jersey corporation and a
licensed stock transfer agent with principal offices located at 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxx Xxxxxxxxx, Xxx Xxxxxx 00000 (hereinafter referred to as
"Trustee");
WITNESSETH THAT:
WHEREAS, the Board of Directors of CRC approved a Plan and Agreement of
Reorganization with Global Resource Corporation, whereby Global Resource
Corporation will acquire, pursuant to Section 368(a)(1)(C) of the internal
Revenue Code, substantially all of the assets of CRC, following which, as
required by the Internal Revenue Code, CRC shall liquidate and dissolve;
WHEREAS, Global Resource Corporation will issue shares of its Common Stock
to CRC for the acquisition of the assets and such shares are being issued in a
private offering and the shares have not been, and prior to Closing will not be,
registered pursuant to the Securities Act of 1933 and accordingly cannot be
distributed to the shareholders of CRC in the absence of such registration.
WHEREAS, the Plan contemplated the establishment of a Liquidating Trust
for the purpose of receiving and holding such shares pending their registration
with the Securities and Exchange Commission, thereby meeting the requirements of
the Internal Revenue Code for liquidation and dissolution; and
WHEREAS, the parties desire to enter into a written agreement, setting
forth the terms and conditions for management of the trust estate for the
purposes of accomplishing a liquidation, as set forth below;
NOW THEREFORE, intending to be legally bound, and in consideration of the
premises, and other good and valuable consideration, the receipt and
sufficiencies of which are hereby acknowledged, the parties hereby agree as
follows:
ARTICLE ONE. NAME AND DEFINITIONS
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1.01 NAME. The name of the liquidating trust created hereby shall be
"Carbon Recovery Corporation LIquidating Trust". As far as practicable and
except as otherwise provided herein, the Trustee shall conduct the activities of
the Trust, execute all documents and xxx or be sued in the name of the Trust or
in its own name as Trustee of the Trust.
1.02 DEFINITIONS. As used in this Agreement, unless the context otherwise
requires, the following terms shall have the respective meanings indicated:
1. "Person" shall mean an individual, a corporation, a partnership,
an association, a joint stock company, a trust, a joint venture, any
unincorporated organization, or a government or political subdivision thereof.
2. "Stockholder" shall mean the holders of record of the shares of
the Common Stock of CRC on the date of Closing.
3. "Trust" shall mean the trust created by this Trust Agreement.
4. "Trust Agreement" shall mean this Agreement, as originally
executed, or as amended from time to time in the manner provided in Article
Eight.
5. "Trustee" shall mean the trustee who is originally named as the
Trustee (i.e., Olde Monmouth Stock Transfer Co., Inc.) and any successor
trustee.
6. "Trust Estate" shall mean the aggregate of the shares of Common
Stock of Global Resource Corporation and all other assets, properties, claims
and rights transferred, assigned, and conveyed unto the Trustee in accordance
with Section 3.01, together with all property rights and agreements, and other
rights, benefits, or privileges, appertaining to appurtenant thereto and all
rents, royalties, income, proceeds, borrowings, and other receipts of any nature
of, or from, such assets, properties, claims and rights.
7. "Holders" shall mean the holders of record of beneficial
interests in the Trust.
8. "Units" shall mean the units of beneficial interest in the Trust
as set forth in Article Six.
ARTICLE TWO. NATURE OF THE TRUST
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2.01 NATURE OF THE TRUST. The Trust exists solely for the purpose of
liquidating the Trust Estate and distributing the proceeds of liquidation to the
Holders. In connection with such purposes, it is intended that the Trust may
serve as a temporary vehicle for the maintenance and operation of the Trust
Estate, with a view to its liquidation and not the conduct of a continuing
business. The Trust is not intended to be, shall not be deemed to be, and shall
not be treated as, a general partnership, limited partnership, joint venture,
corporation, joint stock company or association, nor shall the Trustee, or
Holders, or any of them. for any purpose be, or be deemed to be, or be treated
in any way whatsoever to be, liable or responsible hereunder as partners or
joint venturers. The relationship of the Holders to the Trustee shall be solely
that of beneficiaries of the Trust, and their rights shall be limited to those
conferred upon them by this Trust Agreement. In no event shall any part of the
Trust Estate revert or be distributed to CRC or to any stockholder of CRC, as
such, other than Holders entitled thereto under the terms of this Trust
Agreement. Unclaimed portions of the Trust Estate shall be subject to
disposition in accordance with applicable law of the State or New Jersey. The
Trustee shall take only such action as it may deem necessary or advisable to
preserve the Trust Estate pending distribution, sale or other disposition, and
in no event shall the Trustee otherwise have power or authority to enter into
any business with respect to the Trust Estate. However, nothing herein shall be
deemed to abridge the powers of the Trustee as set forth in Article Four hereof,
all of which powers (without limitations) are considered necessary to the
ability of the Trustee to carry out the purpose of the Trust.
ARTICLE THREE. TRANSFER TO TRUSTEES
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3.01 CONVEYANCE. On the date hereof, CRC has conveyed and transferred to
the Trustee, and the Trustee has accepted, to be held for the benefit of the
Holders, all of the beneficial right and interest of CRC in the shares of Common
Stock of Global Resource Corporation and all of the other assets, properties,
claims and rights of CRC. The foregoing conveyance is subject, however, to all
of the liabilities, debts, and obligations,
whether absolute or contingent, known or unknown, incurred by, or with respect
to the assets or operations of, CRC. The Trustee will hold the aforesaid assets
and properties, together with all rights, benefits, covenants and agreements
appertaining or pertinent thereto upon and subject to the terms and provisions
of the Trust Agreement.
3.02 UNKNOWN PROPERTY AND LIABILITIES. The Trustee shall be responsible
for only the property delivered to it or registered in its name and shall have
no duty to make, nor incur any liability for failing to make, any search for
unknown property. The Trustee shall be responsible for only those liabilities of
which it is informed, and shall have no duty to make, nor incur any liability
for failing to make, any search for unknown liabilities. Trustee has been
informed that there are no liabilities.
3.03 FURTHER ASSURANCES. CRC shall, upon reasonable request of the
Trustee, execute, acknowledge and deliver such further instruments, deeds,
documents, assignments and assurances of law, and do such further acts as may be
reasonably necessary, proper, or desirable, to effectively carry out the
purposes of this Trust Agreement, to transfer any property intended to be
conveyed hereunder, and to vest in the Trustee or its successor or successors,
the property, instruments, or funds in trust hereunder. If the Trustee shall at
any time deem that any further instruments, deeds documents, assignments or
assurances of law or any of other acts are necessary, proper or desirable to
vest, perfect or confirm of record or otherwise the title to any property or to
enforce any claims of CRC, to transfer any property intended to be conveyed
hereunder and to effectively carry out the purposes of this Trust Agreement, the
Trustee at that time is hereby specifically authorized as attorney-in-fact for
CRC (this appointment being irrevocable and one coupled with an interest) to
execute and deliver any and all such proper deeds, assignments and assurances of
law and to do all other acts and on behalf of CRC or otherwise, as such Trustee
shall deem necessary, proper, or appropriate.
3.04 TRANSFEREE LIABILITY. In the event that any liability is asserted
against the Trustee as recipient of the property transferred to the Trustee
hereunder, on account of any claimed liability of or through CRC, the Trustee
may use such part of the Trust Estate as may be reasonable for contesting any
such liability and in payment thereof, including reasonable attorney's fees
incurred in connection therewith.
3.5 LIMITATION OF LIABILITY. No personal liability will attach to the
Trustee or the Holders with respect to any obligations to CRC arising under this
Trust Agreement or from the performance of the activities contemplated hereby,
including, without limitation, acceptance of the transferred assets and
assumption of the liabilities existing with respect to such assets. Such
obligations shall be satisfied only out of the Trust Estate.
ARTICLE FOUR. POWERS OF THE TRUSTEES
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4.01 POWER AND AUTHORITY OF TRUSTEES. The Trustee, subject only to the
specific limitations contained in this Trust Agreement, shall have, without
further or other authorization and free from any power or control on the part of
the Holders, full absolute and exclusive power, control and authority over the
Trust Estate and over the affairs of the Trust to the extent as if the Trustee
was the sole owner thereof in its own right, and to do all such acts and things
as in its sole judgment and discretion are necessary or do all such acts and
things as in its sole judgment and discretion are necessary or incidental to,
or desirable for, the carrying out of any of the purposes of the Trust. Any
determination made in good faith by the Trustee of the purposes of the Trust or
the existence of any power or authority thereunder shall be conclusive. In
construing the provisions of this Trust Agreement, presumption shall be in favor
of the grant of powers and authority to the Trustee. The enumeration of any
specific power or authority herein shall not be construed as limiting the
general powers or authority or any other specified
power conferred herein upon the Trustee. The Trustee shall not at any time on
behalf of the Trust, the Trust Estate, or the Holders enter into or engage in
any business.
4.02 SPECIFIC POWERS AND AUTHORITIES. Subject only to the express
limitations contained in this Trust Agreement and in addition to any powers and
authorities conferred by this Trust Agreement or which the Trustee may have by
virtue of any present or future statute or rule of law, the Trustee without any
action or consent by the Holders may exercise at any time and from time to time
the following powers and authorities which may or may not be exercised by it in
its sole judgment and discretion and in such manner and upon such terms and
conditions as it may from time to time deem proper for the sole purpose of
liquidating the Trust Estate and distribution of the proceeds of liquidation to
the Holders, and not for the operation of a business:
(1) To collect, liquidate or otherwise convert into cash, or such
other property as they deem appropriate, all property, assets and rights in the
Trust Estate, and to pay, discharge and satisfy all liabilities, expenses,
obligations and claims existing with respect to the Trust Estate, the Trust or
the Trustee.
(2) To do or perform any acts or things reasonable or appropriate
for the continued operation and the conservation, protection and orderly
administration of the Trust Estate.
(3) To provide for the registration of the Units under the Federal
Securities laws and such registration or qualification under State Securities or
Blue Sky laws as it deems advisable, if required by law.
(4) To create reserve funds for any purpose, including, without
limitation, reserves to protect against contingent or unknown liabilities which
might exist with respect to the Trust Estate, the Trust, the Trustee or the
prior operations or activities of CRC.
(5) To incur and pay out of the Trust Estate any charges or
expenses, and disburse any funds of the Trust, which charges, expenses or
disbursements are, in the opinion of the Trustee, necessary or incidental to or
desirable for the carrying out of any of the purposes of the Trust, including,
without limitation, taxes and other governmental levies, charges and assessments
of whatever kind or nature, imposed upon or against the Trustee in connection
with the Trust or the Trust Estate or upon or against the Trust Estate or any
part thereof.
(6) To invest and re-invest funds of the Trust in demand and time
deposits in banks or savings institutions, short-term certificates of deposit,
or U.S. Treasury Bills subject to the requirements that the maturity date of
such investments shall be such as to permit the Trustee to pay all debts as they
become due and payable and to pay the Holders at least annually all sums in
excess of reserves for claims and contingent liabilities.
(7) To appoint, engage and employ any persons as agents,
representatives, employees or independent contractors to act as investment
advisors, attorneys, or accountants for or to the Trust and the Trust Estate and
to pay compensation from the Trust Estate for such services.
(8) To collect, xxx for, and receive all sums of money coming due to
the Trust, and to engage in, intervene in, prosecute, join, defend, compound,
compromise, abandon or adjust by arbitration or otherwise any actions, suits,
proceedings, disputes,
claims, controversies, demands or other litigation relating to the Trust, the
Trust Estate or the Trust's affairs, to enter into agreements therefore, 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.
(9) To purchase and pay for, out of the Trust Estate, insurance
contracts and policies insuring the Trust Estate against any and all risks and
insuring the Trust, the Trustee, the Holders or the agents and employees of the
Trust, or any or all of them, against any and all claims and liabilities of
every nature asserted by any person arising by reason of any action alleged to
have been taken or omitted by the Trust or by the Trustee. Holders or agents or
employees.
(10) To file any and all documents and take any and all such other
action as the Trustee, in its sole judgment, may deem necessary in order that
the Trust may lawfully carry out its purposes in any jurisdiction.
(11) To prepare and file, or assist in the preparation and filing
of, Federal and State tax returns and reports required to be filed on behalf of
the Trust, the Trustee or the Holders.
(12) To do or take any action necessary, and to execute and deliver
any documents necessary, to enforce the rights resulting from the Agreement for
the sale of the CRC assets to Global Resource Corporation, including without
limitation, any actions pertaining to collection of the monies, the collection
of any insurance funds, foreclosure of any lien or mortgage, and reacquisition,
to own, operate and manage the property until it can be sold.
(13) To do all other such acts and things as are incidental to the
foregoing, and to exercise all powers which are necessary or useful to promote
and attain any of the purposes for which the Trust is formed, and to carry out
the provisions of this Trust Agreement.
The enumeration of powers in this Article Four shall not be
considered as a limitation upon the power of the Trustee to act in furtherance
of the purposes of the Trust and in such manner as it, in its sole discretion,
deems necessary or advisable to conserve, protect and administer the Trust
Estate.
ARTICLE FIVE. TRUSTEES
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5.01 TERM OF TRUSTEE. Unless sooner terminated by distribution of all
assets comprising the Trust Estate, the term of the Trustee signing this
agreement shall end on December 31, 2008. Except during periods of the existence
of a vacancy, there shall at all times be at least one (1) Trustee.
5.02 COMPENSATION AND OTHER REMUNERATION. Except as specifically agreed in
a Schedule attached to this Liquidating Trust and made a part hereof, a Trustee
shall serve without compensation for its services as Trustee. However, any
Trustee shall be entitled to receive, directly or indirectly, remuneration for
services rendered to the Trust in any other capacity, including, without
limitation, services as an agent or employee of the Trust, legal, accounting, or
other professional services, or services as a transfer agent, underwriter, or
otherwise. The Trustee shall be reimbursed for its reasonable expenses incurred
in connection with its service as Trustee.
5.03 RESIGNATION, REMOVAL AND DEATH OF TRUSTEES. A trustee may resign at
any time by giving written notice to either the remaining Trustee at the
principal office of the Trust or, if there is no other Trustee in office, Fox
Law Offices, P.A., 0 Xxxxxxx Xxxx Xxxx, #0, Xxxxxx, Xxxxxxxxxxxxx 00000. Such
resignation shall take effect on the date such notice is given or at any later
time specified in the notice without need for prior accounting. Upon the
resignation or removal of any Trustee, or its otherwise ceasing to be a Trustee,
it shall execute and deliver such documents as the remaining Trustee or Trustees
as it/they require foe all property which it holds as Trustee and shall
thereupon be discharged as Trustee. Upon the incapacity or death of any human
Trustee, his legal representative shall perform the acts set forth in the
preceding sentence and the discharge mentioned therein shall run to such legal
representative and to incapacitated Trustee or the estate of the deceased
Trustee as the case may be. Notwithstanding failure of any human Trustee or his
legal representative to execute and deliver documents and to render an
accounting as aforesaid, said Trustee shall cease to hold legal title to the
Trust Estate as of the time of his resignation, removal, incapacity, death or
his otherwise ceasing to be Trustee.
5.04 VACANCIES. If any or all of the Trustees cease to be Trustees
hereunder, whether by reason of resignation, removal, incapacity, death or
otherwise, such event shall not terminate the Trust or affect its continuity.
Until vacancies are filled, the remaining Trustee or Trustees may exercise the
power of the Trustee hereunder. Vacancies shall be filled by the remaining
Trustee(s) within ninety (90) days of the creation of the vacancy. If at any
time there shall be no Trustee in office, successor Trustee shall be elected by
the Holders at a meeting held in accordance with the provisions of Section 9.01.
Pending the holding of such a meeting, Xxxxxxx X. Xxx, Esq. shall be deemed to
be appointed to act as the Interim Trustee hereunder, with the full powers of
the Trustee as herein provided.
5.05 SUCCESSOR AND ADDITIONAL TRUSTEES. The right, title and interest of
the Trustee in and to the Trust Estate shall also vest in a successor and
additional Trustee upon its qualification, and it shall thereupon have all the
right and obligations of Trustee hereunder. Such right, title and interest shall
vest in the Trustee whether or not conveying documents have been executed and
delivered pursuant to Section 5.03 or otherwise.
5.06 ACTIONS BY TRUSTEES. A quorum for all meetings of the Trustees shall
be a majority of the Trustees then in office. Unless specifically provided
otherwise in this Trust Agreement, any action of the Trustees may be taken at a
meeting if a quorum is present by vote of a majority of Trustee at the meeting.
Any agreement, deed, mortgage, lease or other instrument or writing executed by
any one or more of the Trustees and upon the Trust when authorized by action of
the Trustees. The Trustees may adopt such additional rules and procedures as
they deem appropriate to govern their conduct and to further the orderly
administration of the Trust.
ARTICLE SIX. THE UNITS AND HOLDERS
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6.01 UNITS. The interests of the beneficiaries in the Trust Estate shall
be expressed in Units. The Units shall be all of one class. The Units shall be
non-transferrable, and title thereto shall only be transferrable, and title
thereto shall only be transferrable by the laws of descent and distribution. All
Units shall have equal voting, distribution, liquidation and other rights. The
Units shall not entitle any Unit Holder to preference, preemptive, appraisal,
issued.
6.02 LEGAL OWNERSHIP OF TRUST ESTATE. The legal ownership of the Trust
Estate and the right to conduct the business of the Trust are vested exclusively
in the Trustee, and the Unit Holders shall have no interest therein other than
the beneficial interest in the Trust conferred by their Units created hereunder,
and subject to the provisions of Section 9.02, they shall have no right to
compel any partition, division, or distribution of the Trust or any of the Trust
Estate.
6.03 UNITS DEEMED PERSONAL PROPERTY. The Units shall be personal property
and shall confer upon the Holders thereof only the interest and rights
specifically set forth in this Trust Agreement. The death, insolvency or
incapacity of a Holder shall not dissolve or terminate the Trust or affect its
continuity or give his legal representative any rights whatsoever, whether
against or in respect of other Holders, the Trustee or the Trust Estate or
otherwise.
6.04 UNIT RECORDS: ISSUANCE AND TRANSFERRABILITY OF UNITS. Records shall
be kept by or on behalf of and under the direction of the Trustee which shall
contain the names and addresses of the Holders, the number of Units held by them
respectively, and in which there shall be recorded all transfers of Units. The
Persons in whose names Units are registered on the records of the Trust shall be
deemed the absolute owners of the Units for all purposes of this Trust; but
nothing herein shall be deemed to preclude the Trustee or their agents or
representatives from inquiring as to the actual ownership of Units. Permitted
transfers of Units shall be registered on the records of the Trust only as of
the end of the last day of the month in which it receives notice of the
transfer. Until a transfer is duly registered as to the Trust, the Trustee shall
not be affected by any notice of such transfer either actual or constructive.
The payment thereof to the Person in whose name any Units are registered on the
records of the Trust or to the duly authorized agent of such Person (or if such
Units are registered in the name of more than one person, to any one of such
Persons or to the duly authorized agent of such Person) shall be a sufficient
discharge for all distributions payable or deliverable in support of such Units
and from all liability to see to the application thereof. The Trustee may
prescribe further rules and regulations, not inconsistent herewith, as it may
deem necessary or advisable concerning the transfer of Units.
6.05 AGENTS. The Trustee shall have power to employ one or more disbursing
agents and other agents and to authorize them on behalf of the Trust to keep
records, to hold and make distributions, and to have and perform in respect to
creation and any permitted transfers of Units and all distributions and reports
and communications to Holders, such powers and duties customarily had and
performed by disbursing agents, transfer agents and registrars as may be
conferred upon them by the Trustee.
6.06 DISTRIBUTIONS TO UNIT HOLDERS. The Trustee shall have discretion to
determine the number of shares of Global Resource Corporation, or the amount of
cash, or other property, if any, to be distributed to the Holders of the Units
and the time at which any such distribution shall be made. However, this
discretionary authority has been provided solely in order to permit the Trustee
to delay distribution of those funds which are in excess of the immediate
payment requirements of existing claims so as to create a reserve for contingent
liabilities as otherwise provided above. It is not intended that the Trustee
shall exercise their discretion to withhold distributions after payment of the
claims and liabilities. Rather, it is intended that the Trustee shall distribute
all funds or other property thereafter as quickly as possible after making
provisions for current expenses of the Trust. It is specifically agreed and
understood that distribution to the Holders shall not be made until all claims
are resolved by (i) release, (ii) nonappealable
final judgment of a court of competent jurisdiction or (iii) expiration of any
applicable time for filing claims as prescribed by controlling statutes of
limitations for any potential claims. Trustee shall have a lien on all trust
property to the extent of and until any fees and expenses incurred by Trustee,
including but not limited to attorneys fees and court costs are reimbursed or
paid for with Trust funds. Trustee are authorized by the Holders to sell Trust
Property to obtain funds necessary for such reimbursement or payment of trust
expenses.
ARTICLE SEVEN. LIABILITY OF TRUSTEE AND
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UNIT HOLDERS AND OTHER MATTERS
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7.01 EXCULPATION OF TRUSTEES. No Trustee of the Trust shall be liable to
the Trust or to any Trustee for any act or omission of any other Trustee,
Holder, or agent of the Trust, or be held to any personal liability whatsoever
in tort, contract or otherwise in connection with the affairs of the Trust
except only that arising from his/her/its own willful misfeasance, gross
negligence or reckless disregard of duty. In addition to, and not in limitation
of, the foregoing, no successor Trustee shall be in any way liable for the acts
or omissions of any Trustee or agent of the Trust occurring prior to the date on
which he/she/it became a Trustee.
7.02 LIMITATION OF LIABILITY OF UNIT HOLDERS, TRUSTEES AND OFFICERS. The
Trustee, in incurring any debts, liabilities or obligations, or in taking or
omitting any other actions for or in connection with the Trust is, and shall be
deemed to be, acting as Trustee of the Trust and not in its own individual
capacity. Except to the extent provided in Section 7.01, no Trustee shall, nor
shall any Holder, be liable for any debt, claim, demand, judgment, decree,
liability or obligation of any kind of, against or with respect to the Trust,
arising out of any action taken or omitted for or on behalf of the Trust, and
the Trust shall be solely liable therefore, and resort shall be had solely to
the Trust Estate for the payment or performance thereof. Each Holder shall be
entitled to pro-rata indemnity from the Trust Estate if, contrary to the
provisions hereof, such Holder shall be held to have any such personal
liability.
7.03 EXPRESS EXCULPATORY CLAUSE IN INSTRUMENTS. As far as practicable, the
Trustee shall cause any written instrument creating an obligation of the Trust
to include a reference to this Trust Agreement to provide that neither the
Holders nor the Trustee thereunder and that the other parties to such instrument
shall look solely to the Trust Estate for the payment of any claim thereunder or
the performance thereof; provided, however, that the omission of such provision
from any such instrument shall not render the Unit Holders or any Trustee liable
nor shall the Trustee be liable to anyone for such omission.
7.04 RIGHT OF TRUSTEES TO OWN UNITS OR OTHER PROPERTY AND TO ENGAGE IN
OTHER BUSINESS. Any Trustee, employee or agent of the Trust may acquire, own,
hold and dispose of Units for his/her/its individual account, and may exercise
all rights of a Holder to the same extent and in the same manner as if he were
not a Trustee, employee or agent. Any Trustee or agent of the Trust may, in his
personal capacity or as an officer or employee of another Person, engage in
business activities which may be in competition with the Trust, may have
interests in Persons engaged to render services to the Trust, and may receive
compensation from such Persons as well as from the Trust.
7.05 PERSONS DEALING WITH TRUSTEES. Any act of the Trustee purporting to
be done in its capacity as such shall, as to any Persons dealing with such
Trustee, be conclusively deemed to be within the purpose of this Trust and
within the powers of the Trustee. No person dealing with the Trustee or any of
them, or with the authorized agents
or representatives of the Trust, shall be bound to see to the application of any
funds or property passing into their hands or control. The receipt of the
Trustee or any of them, or of authorized agents or representative of the Trust,
for monies or other consideration, shall be binding upon the Trust.
7.06 RELIANCE. The Trustee may consult with counsel (which may be a firm
in which one or more of the Trustees is or are members), auditors or other
experts, and the advice and opinion of such counsel, auditors or other experts
shall be full and complete personal protection to all of the Trustees in respect
of any action taken or suffered by them in good faith and in reliance on or in
accordance with such advice and opinion. In discharging their duties, Trustee
may rely upon financial statements of the Trust presented to it to be correct by
the person having charge of its books of account, or stated in a written report
by an independent certified public accountant fairly to present the financial
position of the Trust. The Trustee may rely, and shall be personally protected
in acting, upon any instrument or other document of any sort whatsoever believed
by it to be genuine.
7.07 INDEMNIFICATION OF TRUSTEES.
(1) Each Trustee shall be indemnified from the Trust Estate against
any loss, liability, expense (including attorney's fees and costs), or damage
which such Trustee may incur or sustain by reason of the fact that he/she/it is
or was a Trustee of the Trust or performing any functions incidental to such
services; provided, however, that the foregoing shall not relieve such person of
liability for willful misfeasance, gross negligence or reckless disregard of the
duties involved in the conduct of his/her/its office.
(2) Indemnification under Paragraph 1 above shall be made by the
Trust as authorized in the specific case unless a determination has been made
that indemnification of the Trustee is improper in the circumstances because
he/she/it has not met the applicable standards of conduct. Such determination
shall be made (i) if the Trustee by a majority vote of a quorum consisting of
Trustees who were not parties to the relevant action, suite, proceeding or claim
or (ii) if such a quorum is not obtainable, or, if obtainable and a quorum of
disinterested Trustee so directs, by independent legal counsel (who may be
counsel to the Trust) in a written opinion.
(3) Expenses incurred in connection with a civil, criminal,
administrative, or investigative action, suit, or proceeding, or threat thereof,
shall be paid by the Trust in advance of the final disposition of such action,
suit, or proceeding as authorized in the manner provided in subsection (2) of
this Section 7.07, upon receipt of an undertaking by or on behalf of the Person
to repay such amount if it shall ultimately be determined that he/she/it is not
entitled to be indemnified by the Trust as authorized in this Section.
(4) The indemnification provided by this Section 7.07 shall not be
deemed exclusive of any other rights to which those indemnified may be entitled
under any other agreement, vote of disinterested Trustee, or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding such office, and shall continue as to a Person who has ceased to be a
Trustee and shall inure to the benefit of the heirs, executors, and
administrators of such Person.
(5) No bond shall be required of any of the Trustee.
ARTICLE EIGHT. DURATION OF TRUST AND
AMENDMENT OF TRUST AGREEMENT
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8.01 DURATION OF TRUST. The Trust will terminate six (6) years following
the transfer of CRC's assets to the Trust; provide, however, that the term of
the Trust may be extended for two (2) additional periods of one (1) year each
if, in the discretion of the Trustee, such additional period or periods are
necessary to complete the orderly liquidation of the Trust properties and if, as
of the close of the initial period and, if necessary, as of the close of the
additional period of extension, the Trustee represents to the Internal Revenue
Service that they have made, and are making, good faith attempts to dispose of
the Trust properties. The foregoing shall not be deemed to restrict in any way
the right of the Trustee to cause actual distribution of any liquidation
proceeds to be withheld for periods of time after termination of the Trust as
protection against contingent or unknown liabilities of the Trust or Trustee,
including contingent or unknown liabilities of the Trustee with respect to the
performance of their duties hereunder.
8.02 AMENDMENT OF TRUST AGREEMENT. This Trust Agreement may be amended by
action concurred in by a majority of the Trustees then in office and without a
vote of Holders for the purpose of having the Trust qualify or continue to
qualify as a "liquidating trust" or "grantor trust" under the applicable
provisions of the Internal Revenue Code of 1954, as amended from time to time.
Also, this Trust Agreement may be amended at the direction or with the consent
of the Holders of not less than 66.7% in interest, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Trust Agreement or prior amendments thereto, provided, however, that no
amendment shall permit the Trustee to engage in any activity prohibited by
Article Four.
8.03 REVOCATION. The Holders, by a writing signed by Persons holding a
66.7% in interest of the undivided percentage interests of the Trust, and
without consent of the Trustee, may revoke this Trust Agreement by written
instrument delivered to the Trustee.
ARTICLE NINE. REPORTS
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9.01 FISCAL YEAR. The fiscal year of the Trust shall be the calendar year.
9.02 PREPARATION AND DISTRIBUTION OF FINANCIAL REPORTS. The Trustee shall
prepare, or cause to be prepared an annual financial report within one hundred
twenty (120) days after the close of each fiscal year, which report shall be
distributed to Holders within thirty (30) days after it become available.
9.03 CONTENT OF FINANCIAL REPORTS. The annual report shall reflect the
receipts and the disbursements, including an analysis of the disbursements,
together with such other information as may be material under the circumstances.
Such reports shall be compiled by a certified public accountant, but need not be
reviewed or audited unless so directed to be so prepared by the Trustee.
ARTICLE TEN. MISCELLANEOUS
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10.01 MEETING OF HOLDERS. In the event that there shall be no Trustee in
office and a meeting of Holders is required to elect successor Trustee as
provided in Section 5.04, the Person designated to act as interim Trustee
pending the holding of such a meeting shall provide all Holders written notice
(either in person or by first class mail) of a meeting and the purpose of such
meeting to be held on a day not less than fifteen (15) nor more than sixty (60)
days after the date of such notice at 10 o'clock a.m. at a place within Broward
County, Florida, which place may be an office of the interim Trustee.
10.02 APPLICABLE LAW. This Trust Agreement and the rights of all parties
and the construction and effort of every provision hereof shall be subject to
and construed according to the statutes and laws of the State of New Jersey.
10.03 INDEX AND HEADINGS FOR REFERENCE ONLY. The index and headings
preceding the text, articles and sections hereof have been inserted for
convenience and preference only and shall not be construed to affect the
meaning, construction or effect of this Trust Agreement.
10.04 SUCCESSORS IN INTEREST. This Trust Agreement shall be binding upon
and inure to the benefits of the undersigned Trustee and its successors,
assigns, heirs, distributes, and legal representatives, and every Unit Holder
and his successors, assigns, heirs, distributes and legal representatives.
10.05 COUNTERPARTS. This Trust Agreement may be simultaneously executed in
several counterparts, each of which when so executed shall be deemed to be an
original and such counterparts together shall constitute one and the same
instrument, which shall be sufficiently evidenced by any such original
counterpart.
10.06 PROVISION OF THE TRUST AGREEMENT IN CONFLICT WITH LAW OR
REGULATIONS. If any provision of this Trust Agreement shall be held invalid or
unenforceable, such invalidity or unenforceability shall attach only to such
provision and shall not in any manner affect or render invalid or unenforceable
any other provision of this Trust Agreement, and this Trust Agreement shall be
carried out as if such invalid or unenforceable provision were not contained
herein.
10.07 NOTICES. Any notice required or provided for in this Trust AGreement
shall be in writing and shall be deemed to have been given when deposited in the
United States mails, certified mail return receipt requested or personally
delivered to the Person at his address as shown on the records of the Trustee.
10.8 COURT SUPERVISION. The Trust shall not be administered under the
direction or jurisdiction of any court, nor shall there by any duty of the
Trustee to account to any court with respect to its administration of the Trust
or the Trust Estate.
IN WITNESS WHEREOF, the parties have executed this Liquidating Trust
Agreement the day and year first above written.
CARBON RECOVERY CORPORATION
ATTEST:
By: /s/ Xxxxx Xxxxxxx (Pres.
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/s/ signature
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Secretary
OLDE MONMOUTH STOCK TRANSFER CO., INC.
ATTEST:
By: /s/ signature
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/s/ signature
--------------------------------
Secretary
