Exhibit 10.12
CONTINAN COMMUNICATIONS, INC.
PARTIAL LIQUIDATING TRUST AGREEMENT
THIS PARTIAL LIQUIDATING TRUST, made this 31st day of March, 2008, by and
between:
CONTINAN COMMUNICATIONS, INC. a Nevada corporation having its principal
office located at 0000 Xxxxxxxxx Xxx, #000, Xxxxxx xxx Xxx, Xxxxxxxxxx 00000
(hereinafter referred to as CONTINAN);
AND
MBDL LLC, a Florida limited liability company with principal offices
located at 00000 Xxxxx Xxxxx, Xxxx Xxxxx, Xx 00000 (hereinafter referred to as
"Trustee");
WITNESSETH THAT:
WHEREAS, the Board of Directors of CONTINAN approved a financial
restructuring plan for the Company whereby the business and assets of CONTINAN's
wholly-owned subsidiary, VocalEnvision, Inc. ("VocalEnvision"), would be sold to
Tourizoom, Inc., a corporation specifically formed by certain prior shareholders
of VocalEnvision, who desire continuity and the maintenance of their interest in
such business and assets;
WHEREAS, in approving such restructuring plan the Board noted (a) the
dire lack of working capital of VocalEnvision and the inability of CONTINAN to
provide further investment capital, (b) the lack of revenues from any
exploitation of the business plan of VocalEnvision and the concern that such
condition would be on-going and force CONTINAN itself into bankruptcy or
reorganization, and (c) the valuation by the Board of the assets as being
minimal, if any, and unlikely to be purchased by anyone other than the original
shareholders of VocalEnvision;
WHEREAS, in order to provide protection for the creditors of
VocalEnvision, Inc. and the VocalEnvision-related creditors of CONTINAN, as well
as to the minority shareholders of CONTINAN, the Board of Directors of CONTINAN
desires to establish a trust whereby the funds receivable from Tourizoom Asset
Purchase Agreement will be collected, distributed pro rata to the creditors
until the creditors are paid in full, and thereafter distributed pro rata to the
minority shareholders of CONTINAN;
WHEREAS, to accomplish the foregoing purposes, CONTINAN is establishing
this Partial Liquidating Trust and CONTINAN shall contribute to such Partial
Liquidating Trust (a) all of the issued and outstanding shares of capital stock
of VocalEnvision and (b) the Asset Purchase Agreement;
WHEREAS, the minority shareholders of CONTINAN presumably purchased
shares of the Company based upon the business plan of VocalEnvision and,
accordingly, should share in the proceeds from the Asset Purchase Agreement
after the payment of the creditors of VocalEnvision and, accordingly, such
shareholders shall be beneficiaries of the trust; 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
1.01 Name. The name of the partial liquidating trust created hereby
shall be "Continan Communications, Inc. Partial 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. "Creditor" shall mean a creditor of VocalEnvision on the
date of Closing as listed on Schedule A attached hereto and made a part hereof.
2. "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.
3. "Stockholder" shall mean the holders of record of the
shares of the Common Stock of CONTINAN on the date of Closing other than the
stockholders listed on Schedule B attached hereto and made a part hereof.
4. "Trust" shall mean the trust created by this Trust
Agreement.
5. "Trust Agreement" shall mean this Agreement, as originally
executed, or as amended from time to time in the manner provided in Article
Eight.
6. "Trustee" shall mean the trustee who is originally named as
the Trustee (i.e., MBDL LLC) and any successor trustee.
7. "Trust Estate" shall mean the receivable and cash as
received from Tourizoom, Inc. together with all property rights and agreements,
and other rights, benefits, or privileges, appertaining or appurtenant thereto
and all rents, royalties, income, proceeds, borrowings, and other receipts of
any nature of, or from, such assets, properties, claims and rights derived from
the sale of the assets of VocalEnvision, Inc..
2
8. "Holders" shall mean the holders of record of beneficial
interests in the Trust consisting of (i) the Creditors of VocalEnvision and (ii)
the minority stockholders of Continan Communications, Inc..
9. "Units" shall mean the units of beneficial interest in the
Trust as set forth in Article Six.
ARTICLE TWO. NATURE OF THE TRUST
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 CONTINAN or to any stockholder of
CONTINAN, 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 of California. 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
3.01 Conveyance. On the date hereof, CONTINAN has conveyed and
transferred to the Trustee, and the Trustee has accepted, to be held for the
benefit of the Holders: (i) all of the beneficial right and interest of CONTINAN
in all of the issued and outstanding shares of the Common Stock of
VocalEnvision, and (ii) the Asset Purchase Agreement by and between
VocalEnvision and Tourizoom and all of the other assets, properties, claims and
rights of CONTINAN and/or VocalEnvision. 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, VocalEnvision, including those incurred by VocalEnvision in the
name of CONTINAN. The Trustee will hold the aforesaid assets and properties,
together with all rights, benefits, convenants and agreements appertaining or
pertinent thereto upon and subject to the terms and provisions of the Trust
Agreement.
3
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. CONTINAN 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 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 CONTINAN, 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 CONTINAN (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 such other acts and on behalf of
CONTINAN 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 CONTINAN, 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
attorneys' 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 of CONTINAN 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
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
4
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 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 CONTINAN and/or VocalEnvision.
(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.
5
(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 CONTINAN 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 of the assets, in the event of default by the buyer
and, in the event of any reacquisition, to own, operate and manage the property
until it can be sold.
6
(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
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, 2018. 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., 000 Xxxxx Xxxxxx, #00, Xxxxxx, Xxx Xxxxxxxxx 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, if any, or
Fox Law Offices, P.A. if there is no remaining trustee, shall require for the
conveyance of any Trust property held in its name, shall account to the
remaining Trustee or Trustees as it/they require for 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 the 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.
7
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
10.01. Pending the holding of such a meeting, Fox Law Offices, P.A. 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 or by any one or more authorized Persons shall
be valid and binding upon 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
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 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, conversion, or exchange rights of
any kind. No certificates evidencing the Units will be 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 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.
8
6.04 Unit Records: Issuance and Transferability 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
bookkeeping and 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 make all
distributions to the Creditors PRO RATA until all Creditors have been paid in
full. The Trustee shall have the power and authority to reach settlements with
the Creditors as to the amounts which they are entitled to receive and payment
of any such settlements shall be deemed payment "in full" to such Creditors.
After the Creditors have been paid in full, the Trustee shall make all
distributions to the minority shareholders of Continan pro rate based upon the
number of shares held by each compared to the total shares held by the minority
shareholders. With respect to both distributions, the Trustee shall have
discretion to determine 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 its
discretion to withhold distributions after payment of the claims and
liabilities. Rather, it is intended that the Trustee shall distribute all funds
9
or other property thereafter as quickly as possible after making provisions for
current expenses of the Trust. The 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 is 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
UNIT HOLDERS AND OTHER MATTERS
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.
10
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, suit,
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.
11
(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
8.01 Duration of Trust. The Trust will terminate ten (10) years
following the transfer of CONTINAN's assets to the Trust; provided, 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 1986, 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.
12
ARTICLE NINE. REPORTS
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
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 Los
Angeles, California, 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
California.
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, distributees and legal representatives, and every Unit Holder
and his successors, assigns, heirs, distributees and legal representatives.
10.5 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.
13
10.6 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.
10.7 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.
CONTINAN COMMUNICATIONS, INC.
ATTEST:
By:
-------------------------- --------------------------------
Secretary (Pres.)
MBDL LLC.
By:
--------------------------------
(Manager)
14
