Docstoc

liquidating2

Document Sample
liquidating2 Powered By Docstoc
					Case: 08-10474-mkn

Doc #: 291-3

Filed: 08/26/2008

Page: 1 of 12

LIQUIDATING TRUST AGREEMENT Agreement and Declaration of Trust dated as of August ____, 2008 ("Agreement"), appointing Omer SattarW.A. Leonard, Jr. as Liquidating Trustee for the Beneficiaries of this Trust to act on their behalf (hereinafter called the "Liquidating Trustee"). RECITALS A. The "Debtor’s Plan of Reorganization" ("Plan") filed by Xyience Incorporated ("Xyience") as debtor-in-possession in Chapter 11 Case No. BK-S-08-10474-MKN ("Bankruptcy Case") pending in the United States Bankruptcy Court for the District of Nevada (the "Bankruptcy Court") has been confirmed in the Bankruptcy Case. Under the Plan, certain assets are transferred to a liquidating trust for the benefit of certain classes of creditors as provided in the Plan. B. Upon the terms and subject to the conditions of this Agreement, the Liquidating Trustee has agreed to accept the Liquidating Trust Estate (defined below) in trust and to hold and administer the Liquidating Trust Estate for the benefit of the Beneficiaries (defined below). TERMS 1. Definitions. For purposes of this Agreement, unless the context otherwise requires, the following capitalized and underlined words and phrases have the definitions indicated. Capitalized words and phrases not defined herein but appearing elsewhere in this Agreement have the meanings assigned to such words and phrases in the Plan. (a) Advisory Committee has the meaning set forth in Section 4 below (b) Agreement has the meaning set forth above. (bc) Administrative Carve Out has the meaning set forth in Section 1.1.3 of the Plan. (c) Allowed Claim has the meaning set forth in Section 1.1.5 of the Plan. (de) Assets has the meaning set forth in Section 1.1.6 of the Plan. (ef) Bankruptcy Court has the meaning set forth above. (fg) Beneficiary means each of the Holders and their permitted transferees as the same shall appear in the records of the Liquidating Trustee from time-to-time. (gh) Debtor means Xyience. (hi) Disputed Claim has the meaning set forth in Section 1.1.27 of the Plan.

Page 1 of 1212
22569.1 23932.1

Case: 08-10474-mkn

Doc #: 291-3

Filed: 08/26/2008

Page: 2 of 12

(ij) Final Order has the meaning set forth in Section 1.1.34 of the Plan. (jk) Liquidating Trust Estate means, collectively: (i) the assets to be transferred to the Liquidating Trust pursuant to the Plan, and (ii) such additional or different corpus as the Liquidating Trustee may from time-to-time acquire and hold in trust pursuant to this Agreement. (kl) Liquidating Trust or Trust means the trust created pursuant to this Agreement in accordance with the Plan. (lm) Liquidating Trustee means the Liquidating Trustee named in this Agreement and any of his respective successors. (mn) Litigation Claims shall have the meaning set forth in Section 1.1.46 of the Plan. (no) Pro Rata shall have the meaning set forth in Section 1.1.57 of the Plan. 2. Nature and Purpose of Trust. The purpose of the Trust is to hold, administer and liquidate the Liquidating Trust Estate, and to collect and distribute to the Beneficiaries the income and the proceeds of the sale of the Liquidating Trust Estate, all in accordance with the provisions of the Plan and this Agreement. The Trust is a liquidating trust pursuant to which the Liquidating Trustee is to hold the Liquidating Trust Estate and dispose of all or part of the same in accordance with this Agreement. This 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 Agreement. 3. Conveyance to Liquidating Trust Estate. Pursuant to the Plan, on the Effective Date, the Debtor will transfer and convey the Assets, including the Administrative Carve Out and the Manchester Sale Proceeds, to the Liquidating Trustee to be held in trust hereunder, subject to the Administrative Carve Out. The Liquidating Trustee will, among other things, collect, administer, liquidate and distribute in accordance with the terms of the Plan and the Liquidating Trust the Assets and proceeds thereof. Whenever the Plan requires or permits notice to the Debtor after the Effective Date with respect to the Liquidating Trust Estate, such notice shall be effective only when given to the Liquidating Trustee and the Liquidating Trustee shall have the right to take all actions with respect to the Liquidating Trust Estate that the Debtor would have had the right to take had it not been reorganized on the Effective Date.

2 of 1212
22569.1 23932.1

Case: 08-10474-mkn

Doc #: 291-3

Filed: 08/26/2008

Page: 3 of 12

4.

Advisory Committee.

(a) Creation. Simultaneously with the creation of the Liquidation Trust, a committee (the “Advisory Committee”) shall be established to perform an advisory role in the administration of the Liquidation Trust. The Advisory Committee shall be comprised of at least three (3) members of the Official Committee of Unsecured Creditors appointed in the Bankruptcy Case. Prior to the Effective Date, the Official Committee of Unsecured Creditors shall provide the Debtor and the Trustee with the identity of and contact information for the Advisory Committee Members, as well as any subsequent changes to the membership of the Advisory Committee. (b) Role. The Liquidation Trustee shall consult with the Advisory Committee in connection with the administration of the Liquidation Trust by the Liquidation Trustee. The Advisory Committee may provide advice or recommendations with respect to any action to be taken by the Liquidation Trustee in connection therewith (including, without limitation, (1) the arrangement of any sale, transfer or other disposition of Trust Assets, (2) the investment of any proceeds of Trust Assets in investments permitted hereunder, (3) the conduct and settlement of litigation with respect to any Litigation Claims or Disputed Claims or otherwise; and (4) the making of any Distributions in respect of Allowed Claims). The members of the Advisory Committee shall not be entitled to any compensation; however, the Advisory Committee shall be permitted to employ legal counsel whose fees and costs will be paid as provided for in Paragraph 13(c) herein. All decisions of the Advisory Committee shall be effective upon a majority vote of the members thereof. In his communications with the Advisory Committee, the Liquidation Trustee may rely upon a written statement signed (including signatures by counterpart facsimile or electronic transmission) by a majority of the Advisory Committee. (c) Limitation of Liability and Indemnification of Advisory Committee.

(1) The members of the Advisory Committee shall not be personally liable to the Liquidation Trust or to any Beneficiary (or any successor of such entities) except for such of their own respective acts as shall constitute willful misconduct as determined by a Final Order. The members of the Advisory Committee and the Professionals retained by the Advisory Committee, and any officers, employees, professionals and agents acting on behalf of the members of the Advisory Committee in such capacity, shall be defended, held harmless and indemnified against, and shall be entitled to advancement of their expenses in connection with, any proceeding against them arising from their actions as or on behalf of members of the Advisory Committee, provided, however, any such Person shall be obligated to repay any amounts advanced hereunder, if a court of competent jurisdiction shall determine by a Final Order such Person’s actions constituted willful misconduct. (2) The obligation of the Liquidation Trust to indemnify the members of the Advisory Committee, shall constitute indebtedness of the Liquidation Trust. In acting hereunder, any member of the Advisory Committee acts in its representative and not individual capacity.

3 of 1212
22569.1 23932.1

Case: 08-10474-mkn

Doc #: 291-3

Filed: 08/26/2008

Page: 4 of 12

All Persons having any claim against any member of the Advisory Committee or their agents by reason of the transactions contemplated hereby shall look only to the Trust Assets for payment or satisfaction thereof. (3) The indemnification and exculpation provisions hereunder shall supplement and augment those provisions set forth in the Plan. Any inconsistency or ambiguity shall be interpreted in such manner that is the most favorable to the Advisory Committee and its employees, officers, agents and Professionals. 4. 5. Administration of Liquidating Trust Estate. Within the time frames stated in the Plan, or as soon thereafter as practicable, the Liquidating Trustee shall make the distributions from the Trust to the Beneficiaries in accordance with the terms set forth below. The Liquidating Trustee shall retain appropriate reserves, to the extent monies are available to do so, with respect to Disputed Claims until they are either Allowed Claims or disallowed by Final Order of the Bankruptcy Court, and such other reserves as the Liquidating Trustee deems necessary in his reasonable judgment. (a) Distributions to Class 2 and 3: Based upon the Bankruptcy Court’s ruling, the Liquidating Trustee shall disburse the Manchester Sale Proceeds to Class 2, if the Bankruptcy Court permits the Debtor to impose a Section 506(c) surcharge of the Manchester Sale Proceeds, or to Class 3 if the Bankruptcy Court does not permit the Section 506(c) surcharge. (b) Distribution of Administrative Carve Out: The Liquidating Trustee shall disburse the Administrative Carve Out in accordance with the Bankruptcy Court’s Orders allowing Administrative Claims. To the extent that the Administrative Carve Out is not sufficient to satisfy all Allowed Administrative Claims, the holders of unpaid and Allowed Administrative Claims shall be treated as Beneficiaries of this Trust to be paid in accordance with the priority established by the Plan. (c) Distributions to the Beneficiaries. If there are any monies available from assets and/or sources other than the Reserve Amounts, then the Liquidating Trustee shall pay the Beneficiaries the amounts of their or its respective Allowed Priority Claims, Allowed Administrative Claims, Allowed Class 2 Claims, Allowed Class 3 Claims and Allowed Class 4 Claims, in accordance with the priority established by the Plan and the Bankruptcy Court’s Plan Confirmation Order. Allowed Class 4 Claims shall be paid on a Pro Rata basis. Checks issued by the Liquidating Trustee with respect to Allowed Claims shall be null and void if not negotiated within ninety (90) days after the date of issuance thereof. Requests for reissuance of any check shall be made directly to the Liquidating Trustee by the holder of the Allowed Claim with respect to whom such check originally was issued. Any claim in respect of such a voided check shall be made within one hundred twenty (120) days of the date of issuance of the particular check. After such date, all claims in respect of void checks shall be discharged and forever barred. If the

4 of 1212
22569.1 23932.1

Case: 08-10474-mkn

Doc #: 291-3

Filed: 08/26/2008

Page: 5 of 12

Liquidating Trustee chooses, in his sole and absolute discretion, to prepay any obligation on which deferred payments are provided for under the Plan, the Liquidating Trustee will not be liable or subject to the assessment of any prepayment penalty thereon unless otherwise ordered by the Bankruptcy Court. The Liquidating Trustee will not have any obligation to pay any such prepayment. (d) Final Distribution. If the Liquidating Trustee determines 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 Liquidating Trust Estate, distribute the remainder of the Liquidating Trust Estate to the Beneficiaries. 5. 6. Unknown Property and Liabilities. The Liquidating Trustee shall be responsible only for that property delivered to him, and shall have no duty to make, nor incur any liability for failing to make, any search for unknown property or for any liabilities. 6. 7. Limitation of Liability. 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 Liquidating Trust Estate, including, without limitation, those arising under this Agreement or with respect to the Trust or the Liquidating Trust Estate, and all persons dealing with the Trust must look solely to the Liquidating Trust Estate for the enforcement of any claims against the Trust or the Liquidating Trust Estate. 7. 8. Rights of Beneficiaries. Each Beneficiary shall be entitled to participate in the rights due to a Beneficiary hereunder. Each Beneficiary shall take and hold his, her or its beneficial interest subject to this Agreement's terms and provisions. The interest of a Beneficiary of the Trust is in all respects personal property, and upon the death, insolvency, dissolution, reorganization, merger or incapacity of an individual Beneficiary, such Beneficiary's interest shall pass to such Beneficiary's legal representative and such death, insolvency or incapacity shall not terminate or affect this Agreement's validity. A Beneficiary shall have no title to, right to, possession of, management of, or control of, the Liquidating Trust Estate 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 Liquidating Trust Estate, but the whole title to all the Liquidating Trust Estate 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 Agreement. The interests of the Beneficiaries will not be represented by any certificate. Notwithstanding anything to the contrary set forth in this Agreement, a Beneficiary shall cease to be a Beneficiary upon payment in full of its Allowed Claim. 8. 9. Limit on Transfer of Interests of Beneficiaries. The interest of a Beneficiary in the Trust may not be transferred in whole or in part except by will, intestate succession, or as otherwise approved by the Bankruptcy Court. Any other attempted transfer shall be void ab

5 of 1212
22569.1 23932.1

Case: 08-10474-mkn

Doc #: 291-3

Filed: 08/26/2008

Page: 6 of 12

initio, the Liquidating Trustee shall not be required to recognize any equitable or other claims to such interest by the transferee thereof, and the named Beneficiary shall remain as such for all purposes hereunder. 9. 10. No Legal Title in Beneficiaries. No Beneficiary shall have legal title to any part of the Liquidating Trust Estate. No transfer by operation of law or otherwise, of the right, title and interest of any Beneficiary in and to the Liquidating Trust Estate 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 Liquidating Trust Estate. 10. 11. Duration of Trust. This Trust shall terminate and the Liquidating Trustee shall have no further responsibilities or duties on the earlier of (i) the date that is five (5) years after the Effective Date; or (ii) the date upon which all assets vested in the Liquidating Trust have been distributed and any tax returns required to have been filed by the Liquidating Trust have been prepared and filed. Notwithstanding anything to the contrary set forth in this Agreement, the term of the Trust may be extended by the Liquidating Trustee, with the approval of the Bankruptcy Court. 11. 12. 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 his duties have been fully performed. Upon distribution of the entire Liquidating Trust Estate, the Liquidating Trustee shall retain for a period of two (2) years the books, records, Beneficiary lists, and certificates and other documents and files which have been delivered to or created by the Liquidating Trustee. 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 Trust's affairs. Except as otherwise specifically provided herein, upon the discharge of all liabilities of the Trust and final distribution of the entire Liquidating Trust Estate, the Liquidating Trustee shall have no further duties or obligations hereunder. 12. 13. Specific Powers of Liquidating Trustee. Subject to the limitations stated below, the Liquidating Trustee shall have the following specific powers in addition to any powers conferred upon him by any other provision of this Agreement, the Plan or by virtue of any present or future statute or rule of law in all instances without any action or consent required by the Beneficiaries: (a) Manage, sell and convert all or any portion of the Assets to Cash and distribute Liquidation Proceeds and Available Cash as specified in the Plan; (b) Release, convey or assign any right, title or interest in or about the Assets or any portion thereof;

6 of 1212
22569.1 23932.1

Case: 08-10474-mkn

Doc #: 291-3

Filed: 08/26/2008

Page: 7 of 12

(c) Pay and discharge any cost, expense, fee or obligation deemed necessary to preserve or enhance the value of the Assets, discharge duties under the Plan or perform the purpose of the Plan; payment of such fees and expenses shall not require approval of the Bankruptcy Court; (d) Open and maintain bank accounts and deposit funds and draw checks and make disbursements in accordance with this Plan; (e) Engage and pay from Liquidation Proceeds such attorneys, including attorneys engaged pursuant to a contingent fee agreement, accountants, engineers, agents, tax specialists, financial advisors, appraisers, investment bankers, other professionals and clerical and stenographic assistance as may, in the discretion of the Liquidation Trustee, be deemed necessary; (f) Sue and be sued and file or pursue objections to Claims and Equity Interests and seek to estimate them; (g) Enforce, waive or release rights, privileges or immunities of any kind;

(h) In general, without in any manner limiting any of the foregoing, deal with the Assets or any part or parts thereof in all other ways as would be lawful for any person owning the same to deal therewith, whether similar to or different from the ways herein specified; (i) Institute or continue actions which were or otherwise could have been brought by the Estate, and prosecute or defend all appeals on behalf of the Estate and, when appropriate, settle such actions and claims with the approval of the Bankruptcy Court after hearing on notice; provided, however, that the Liquidation Trustee may settle actions and claims involving an original amount of less than $25,000 without Bankruptcy Court approval; (j) Act in the place and stead of Debtor and represent the Estate with regard to all matters for which the jurisdiction of the Bankruptcy Court is reserved under Section 10 of this Plan; (k) applicable Law; Oversee the dissolution and winding up of Debtor in accordance with

(l) As soon as is practicable after the Final Distribution Date, ask the Bankruptcy Court to enter the Final Decree; and (m) Without limitation, do any and all things necessary to accomplish the purposes of the Plan.

7 of 1212
22569.1 23932.1

Case: 08-10474-mkn

Doc #: 291-3

Filed: 08/26/2008

Page: 8 of 12

Unless otherwise noted herein, the Liquidating Trustee shall have the right to exercise the above powers without the Bankruptcy Court's consent, approval or order. 13. 14. Limitations on Liquidating Trustee. 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 Liquidating Trust Estate or the proceeds, revenue or income therefrom shall be used or disposed of by the Trust in furtherance of any trade or business, or (ii) except as provided below, reinvest any assets. (a) The Liquidating Trustee may invest and reinvest funds held in the Liquidating Trust Estate only in certificates of deposit, other time deposits, or other bank accounts with a bank or trust company which is organized under the laws of the United States of America or any state thereof having surplus and undivided profits aggregating in excess of $100,000,000. (b) The Liquidating Trustee shall be restricted to the holding, collection, conservation, protection and administration of the Liquidating Trust Estate in accordance with the provisions of this Agreement and the Plan, and the payment and distribution of amounts as set forth herein for the purposes set forth in this Agreement. Any determination by the Liquidating Trustee as to what actions are in the best interests of the Trust shall be determinative. (c) The Liquidating Trustee may select any professional to assist in the discharge of his duty herein. (d) The Liquidating Trustee may compensate himself and any professional he retains. 14. 15. Liability of Liquidating Trustee. Upon entry of the Confirmation Order, the Liquidating Trustee and his employees, agents, attorneys or professionals shall not have or incur any personal liability whatsoever in tort, contract or otherwise, to any holder of any Claim for any act or omission arising out of or in connection with Bankruptcy Case, the administration of assets of the Estate, the confirmation of the Plan, the consummation of the Plan, or the administration of the Plan or the Liquidating Trust, or property to be distributed under the Liquidating Trust, except for willful misconduct or gross negligence. 15. 16. Express Exculpatory Clauses in Instruments. Neither the Liquidating Trustee, nor any of his employees, agents, attorneys, financial advisors or professionals shall have or incur any liability to any holder of any Claim for any act or omission arising out of or in connection with the Bankruptcy Case, the administration of assets of the Estate, the confirmation of the Plan, the consummation of the Plan, or the administration of the Plan or property to be distributed under the Liquidating Trust, except for willful misconduct or gross negligence. The Liquidating Trustee and each of his employees, agents, attorneys, financial advisors and

8 of 1212
22569.1 23932.1

Case: 08-10474-mkn

Doc #: 291-3

Filed: 08/26/2008

Page: 9 of 12

professionals shall be deemed to have acted in good faith with regard to the solicitation of acceptances or rejections of the Plan and shall be entitled to the protections afforded by section 1125(e) of the Bankruptcy Code. Entry of the Confirmation Orders shall act as a comprehensive release of and injunction against the bringing of any claim or cause of action with respect to any such liability. Such release and injunction shall specifically include, but not be limited to, any claims with respect to rights under any prior unconfirmed plan of reorganization or agreements relating thereto and any claims with respect to Claims or transfers thereof. 16. 17. Indemnification of Liquidating Trustee and Others. The Liquidating Trustee and any employees, agents, attorneys or other professionals retained by the Liquidating Trustee (collectively, an "Indemnified Person"), shall be entitled to indemnification out of the Liquidating Trust Estate against any losses, liabilities, expenses (including attorneys' fees and disbursements), damages, taxes, suits or claims (collectively, "Expenses") which any Indemnified Person may incur or sustain by reason of being or having been a Liquidating Trustee of the Trust, or being or having been employed or retained by the Liquidating Trustee, or for performing any functions incidental to such service, employment or retention; provided, however, that the foregoing shall not relieve any Indemnified Person for liability for willful misconduct or gross negligence. The indemnification provided in this paragraph shall not be deemed exclusive of any other rights to which any Indemnified Person may be entitled pursuant to any other agreement or otherwise, and shall continue as to a person or entity that has ceased to be a Liquidating Trustee or ceased to be employed or retained by the Liquidating Trustee and shall inure to the benefit of the successor and legal representatives of such person or entity. 17. 18. Protection of Persons Dealing with the Liquidating Trustee. Any transfer of the Liquidating Trust Estate, or 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 Liquidating Trust Estate or such part thereof. No purchaser of the Liquidating Trust Estate 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 Agreement. 18. 19. Compensation of Liquidating Trustee. As compensation for his services as Liquidating Trustee under this Agreement, the Liquidating Trustee shall be entitled to receive from the Liquidating Trust Estate a fee based upon three percent (3%) of all Liquidation Proceeds (as defined in the Plan)Cash distributed by the Liquidating Trust, which compensation shall be paid to the Liquidating Trustee on the Distribution Date of each Distribution made by the Trustee. 19. 20. Resignation of Liquidating Trustee. The resignation or removal of the Liquidating Trustee and appointment of a successor Liquidating Trustee shall become effective only upon the successor Liquidating Trustee's acceptance of appointment in accordance with the provisions of this Agreement. The Liquidating Trustee may resign from the Trust by (i) filing

9 of 1212
22569.1 23932.1

Case: 08-10474-mkn

Doc #: 291-3

Filed: 08/26/2008

Page: 10 of 12

with the Bankruptcy Court an application for authority to resign as Liquidating Trustee; (ii) obtaining a hearing date and time at which the Bankruptcy Court will consider such application; and (iii) mailing said application and notice of the aforementioned hearing to each of the Beneficiaries. If the Liquidating Trustee resigns, the Bankruptcy Court shall appoint a successor Liquidating Trustee. If the Liquidating Trustee is removed or if a vacancy exists in the office of Liquidating Trustee for any reason other than the resignation of the Liquidating Trustee, the Bankruptcy Court shall appoint a successor Liquidating Trustee. Notwithstanding the foregoing, the Liquidating Trustee or any Beneficiary may petition the Bankruptcy Court or any other court of competent jurisdiction for the appointment of a successor Liquidating Trustee if a vacancy exists and a successor Liquidating Trustee has not been appointed, or if good cause exists to remove the Liquidating Trustee. 20. 21. 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 his predecessor in the Trust hereunder with like effect as if originally named herein; but the retiring Liquidating Trustee nevertheless shall, 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, trusts and duties of such retiring Liquidating Trustee, and shall duly assign, transfer, and deliver to such successor Liquidating Trustee all property and money held hereunder. 21. 22. Removal of Liquidating Trustee. The Liquidating Trustee can be removed by order of the Bankruptcy Court after motion, notice and a hearing if the moving party proves to the Bankruptcy Court's satisfaction that the Liquidating Trustee has committed misfeasance or malfeasance or otherwise breached his duties as set forth herein or in the Plan. 22. 23. Bond Requirement. The Liquidating Trustee shall, at the expense of the Trust, procure a performance bond or bonds in the initial amount equal to at least one hundred ten percent (110%) of the value of the assets (as determined by the Liquidating Trustee) initially transferred in the Liquidating Trust Estate written by an insurance or bonding company authorized to do business in the State in which the Trustee resides, and written on standard and customary bond form. 23. 24. GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEVADA APPLICABLE TO AGREEMENTS MADE AND TO BE WHOLLY PERFORMED IN SUCH STATE. THE LIQUIDATING TRUSTEE HEREBY IRREVOCABLY AND UNCONDITIONALLY CONSENTS TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEVADA AND OF THE UNITED STATES OF AMERICA LOCATED IN NEVADA FOR ANY ACTIONS,

10 of 1212
22569.1 23932.1

Case: 08-10474-mkn

Doc #: 291-3

Filed: 08/26/2008

Page: 11 of 12

SUITS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY. Notwithstanding the foregoing, the Liquidating Trustee shall have the power and authority to bring any action in any court of competent jurisdiction to prosecute any claim of the Liquidating Trust Estate. 24. 25. Interpretation and Words of Construction. The words "herein" and "hereunder" and other words of similar import refer to this Agreement as a whole and not to any particular section, subsection or clause contained in this Agreement, unless the context requires otherwise. Whenever from the context it appears appropriate, each term stated in either the singular or the plural includes the singular and the plural, and pronouns stated in the masculine, feminine or neuter general include the masculine, feminine and the neuter. Section headings and captions contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. 25. 26. Severability of Provisions. Any provision of this 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 Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. 26. 27. Conflicts Between Agreement and Plan. To the extent there is any conflict between the terms and conditions of this Agreement and the Plan, then the Plan' terms and conditions shall control. 27. 28. Other Provisions of Plan. To the extent applicable and not set forth herein, Sections 8.3, 8.49.3, 9.4 and 8.59.5 of Article 89 of the Plan are hereby incorporated by reference. IN WITNESS WHEREOF, this Agreement has been duly executed as of the date first above written. Omer Sattar W.A. Leonard, Jr.

By: Name: Omer SattarW.A. Leonard, Jr. Date: August ___, 2008

11 of 1212
22569.1 23932.1

Case: 08-10474-mkn

Doc #: 291-3

Filed: 08/26/2008

Page: 12 of 12

Document comparison done by Workshare Professional on Saturday, August 09, 2008 6:53:31 PM Input: Document 1 Document 2 Rendering set Legend: Insertion Deletion Moved from Moved to Style change Format change Moved deletion Inserted cell Deleted cell Moved cell Split/Merged cell Padding cell Statistics: Count Insertions Deletions Moved from Moved to Style change Format changed Total changes 56 47 0 0 0 0 103 pcdocs://las/22569/1 pcdocs://las/23932/1 Fennemore Craig Std


				
DOCUMENT INFO
Shared By:
Categories:
Stats:
views:90
posted:9/2/2008
language:
pages:12