This Trust Agreement involves
Title: LIQUIDATING TRUST AGREEMENT
Governing Law: Delaware Date: 7/7/2006
LIQUIDATING TRUST AGREEMENT
Dated as of June 30, 2006
by and between
PLM Equipment Growth Fund VI,
a California limited partnership
individually as Grantor
PLM Financial Services, Inc.
as the Trustee
TABLE OF CONTENTS
ARTICLE I: NAME AND DEFINITIONS
1.2 Certain Terms Defined
ARTICLE II: NATURE OF TRANSFER
2.1 Purpose of Trust
2.2 Prohibited Activities
2.3 No Reversion to the Partnership
2.4 Payment of Liabilities
2.5 Bill of Sale, Assignment, Acceptance and Assumption Agreement; Instruments of Further Assurance
2.6 Incidents of Ownership
2.7 Notice to Unlocated Holders of Partnership Interests
ARTICLE III: BENEFICIARIES
3.1 Beneficial Interests
3.2 Rights of Beneficiaries
3.3 No Transfer of Interests of Beneficiaries
3.4 Trustee as Beneficiary
ARTICLE IV: DURATION AND TERMINATION OF TRUST
4.2 Other Obligations of the Trustee upon Termination
ARTICLE V: ADMINISTRATION OF TRUST ASSETS
5.1 Sale of Trust Assets
5.2 Transactions with Related Persons
5.3 Payment of Claims, Expenses and Liabilities
5.4 Interim Distributions
5.5 Final Distribution
5.6 Reports to Beneficiaries and Others
5.7 Federal Income Tax Information
5.8 Employment of Manager
ARTICLE VI: POWERS OF AND LIMITATIONS ON THE TRUSTEE
6.1 Limitations on Trustee
6.2 Specific Powers of the Trustee
ARTICLE VII: CONCERNING THE TRUSTEE, BENEFICIARIES, EMPLOYEES AND AGENTS
7.2 Reliance by Trustee
7.3 Limitation on Liability to Third Persons
7.6 Rights of Trustees, Employees, Independent Contractors and Agents to Own Trust Units or Other Property and to Engage in Other Business
7.7 Contribution Back
ARTICLE VIII: PROTECTION OF PERSONS DEALING WITH THE TRUSTEE
8.1 Action by Trustee
8.2 Reliance on Statements by the Trustee
ARTICLE IX: COMPENSATION OF TRUSTEE
9.1 Amount of Compensation
9.2 Dates and Timing of Payment
ARTICLE X: THE TRUSTEE AND SUCCESSOR TRUSTEE
10.1 Number and Qualification of Trustees
10.2 Resignation and Removal
10.3 Appointment of Successor
10.4 Acceptance of Appointment by Successor Trustee
ARTICLE XI: CONCERNING THE BENEFICIARIES
11.1 Evidence of Action by Beneficiaries
11.2 Limitation on Suits by Beneficiaries
11.3 Requirement of Undertaking
ARTICLE XII: MEETING OF BENEFICIARIES
12.1 Purpose of Meetings
12.2 Meeting Called by Trustee
12.3 Meeting Called on Request of Beneficiaries
12.4 Persons Entitled to Vote at Meeting of Beneficiaries
12.6 Adjournment of Meeting
12.7 Conduct of Meetings
12.8 Record of Meeting
ARTICLE XIII: AMENDMENTS
13.1 Consent of Beneficiaries
13.2 Notice and Effect of Amendment
13.3 Trustee’s Declining to Execute Documents
ARTICLE XIV: MISCELLANEOUS PROVISIONS
14.1 Filing Documents
14.2 Intention of Parties to Establish Trust
14.3 Beneficiaries Have No Rights or Privileges as Holders of Partnership Interests
14.4 Laws as to Construction
SCHEDULE A: Schedule of Fees
EXHIBIT A: Form of Bill of Sale, Assignment, Acceptance and Assumption Agreement
LIQUIDATING TRUST AGREEMENT
This LIQUIDATING TRUST AGREEMENT (this “Agreement”), dated as of June 30, 2006 (the “Effective Date”), by and between PLM Equipment Growth Fund VI, a California limited partnership, as Grantor (the “Partnership”), and PLM Financial Services, Inc., a Delaware corporation, as Trustee (the “Trustee”).
WHEREAS, the Partnership was organized for the objectives and purposes of owning and leasing, and otherwise dealing with equipment and other personal property; and
WHEREAS, the terms of that certain Amended and Restated Limited Partnership Agreement, dated as of December 20, 1991, which was further amended pursuant to that certain First Amendment to the Amended and Restated Limited Partnership Agreement dated as of November 21, 1996, and by that certain Second Amendment to the Amended and Restated Limited Partnership Agreement dated as of August 24, 2001 (collectively, the “Partnership Agreement”); and provide that the Partnership be dissolved upon the determination by PLM Financial Services, Inc., a Delaware corporation, General Partner of the Partnership (the “General Partner”) that it is necessary to commence the liquidation of the assets of the Partnership in order for the liquidation of all of the assets to be completed in an orderly and businesslike fashion prior to January 1, 2007; and
WHEREAS, as of the date hereof, the General Partner has made such determination; and
WHEREAS, the General Partner believes it to be in the best interest of the Partnership to complete the liquidation of the Partnership by transferring all remaining assets of the Partnership (the “Retained Assets”) to a liquidating trust (the “Trust”) with PLM Financial Services, Inc., serving as its initial trustee (the “Trustee”), including a cash reserve set aside for the contingent and existing obligations of the Partnership (the “Cash Reserve”); and
WHEREAS, the Trustee shall administer the Liquidating Trust pursuant to the terms of this Agreement and, upon satisfaction of all liabilities and obligations of the Partnership and the Liquidating Trust, the Trustee shall distribute the residue of the proceeds of the liquidation of the assets of the Partnership in accordance with the terms hereof;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Partnership hereby agrees to grant, release, assign, convey and deliver unto the Trustee for the benefit of the Beneficiaries (as hereinafter defined), all of the right, title and interest of the Partnership in and to the Retained Assets for the uses and purposes stated herein on the Effective Date, subject to the terms and provisions set out below, and the Trustee hereby agrees to accept such Retained Assets and such Trust, subject to the following terms and provisions:
NAME AND DEFINITIONS
1.1 Name . This Trust shall be known as the PLM Equipment Growth Fund VI Liquidating Trust.
1.2 Certain Terms Defined . For all purposes of this instrument, unless the context otherwise requires:
(a) “ Affiliated Person ” shall mean a Person (i) who in his individual capacity is a director, trustee, officer, partner or employee of the Manager or of a Person who controls, is controlled by or is under common control with the Manager or (ii) who controls, is controlled by or is under common control with the Manager.
(b) “ Agreement ” shall mean this instrument as originally executed or as it may from time to time be amended pursuant to the terms hereof.
(c) “ Beneficial Interest ” shall mean each Beneficiary’s proportionate share of the Trust Assets in the Trust determined by the ratio of the number of Partnership Interests held by the Initial Beneficiary on the close of business on the Record Date in the Partnership over the total number of Partnership Interests existing on such Record Date in the Partnership and thereafter each Beneficiary’s proportional beneficial interest in the Trust represented by Trust Units.
(d) “ Beneficiaries ” shall mean the holders of Trust Units from time to time on or after the Record Date, including the Initial Beneficiaries and the Subsequent Beneficiaries.
(e) “ Cash Reserve ” shall mean a cash reserve set aside by the General Partner for the contingent and existing obligations of the Partnership.
(f) “ Grantor ” shall mean the Partnership.
(g) “ Initial Beneficiaries ” shall mean the initial holders of Trust Units.
(h) “ Liquidating Trust ” shall mean the liquidating trust maintained by the Trustee holding the Trust Assets of the Partnership, identified as the “PLM Equipment Growth Fund VI Liquidating Trust”; also referred to herein as the “Trust.”
(i) “ Manager ” shall mean such Person or Persons who have been employed by, or who have contracted with, the Trustee to assist in the management of the Trust, and for the avoidance of doubt, the Manager may be the General Partner or any affiliate of the General Partner.
(j) “ Partnership Interests ” shall mean the limited and general partnership interests in the Partnership held by each of the Beneficiaries as of the Record Date.
(k) “ Person ” shall mean an individual, a corporation, a partnership, an association, a joint stock company, a limited liability company, a trust, a joint venture, any unincorporated organization, or a government or political subdivision thereof.
(l) “ Record Date ” shall mean the date selected by the Grantor for determination of the holders of Partnership Interests entitled to become Beneficiaries.
(m) “ Related Person ” shall have the meaning set forth in Section 5.2.
(n) “ Subsequent Beneficiaries ” shall mean Beneficiaries as reflected on the books and records of the Trust from time to time after the Effective Date, other than the Initial Beneficiaries.
(o) “ Trust ” shall mean the Trust created by this Agreement.
(p) “ Trust Assets ” shall mean all the property held from time to time by the Trustee under this Agreement, which initially shall consist of the Retained Assets of the Partnership granted, assigned and conveyed to the Trustee by the Partnership including, but not limited to, the Cash Reserve, and, in addition, shall thereafter include all proceeds and other receipts of, from, or attributable to any assets, causes of actions or claims held by the Trust.
(q) “ Trust Units ” shall mean those equal, undivided portions into which the Beneficial Interests in the Trust Assets are divided, as evidenced on the books and records of the Trust.
(r) “ Trustee ” shall mean the original Trustee under this Agreement and its successor(s), if any.
NATURE OF TRANSFER
2.1 Purpose of Trust .
(a) It is expected that the Partnership shall dissolve and liquidate prior to fully winding up its affairs, including, but not limited to, the sale of its remaining assets, the collection of any receivables and the payment of any unsatisfied debts, claims, liabilities, commitments, suits and other obligations, whether contingent or fixed or otherwise (the “Liabilities”), except for such Liabilities for which the Partnership has previously reserved by the allocation of the Cash Reserve as described in the recitals hereto. The Trust hereby is organized for the sole purpose of winding up the affairs of the Partnership as promptly as reasonably possible and with no objective to continue or engage in the conduct of a trade or business.
(b) The Cash Reserve and Retained Assets to be granted, assigned and conveyed to the Trustee as of the Effective Date will be held in the Trust, and the Trustee will: (i) further liquidate the Trust Assets as it deems necessary to carry out the purpose of the Trust and facilitate distribution of the Trust Assets; (ii) protect, conserve and manage the Trust Assets in accordance with the terms and conditions hereof; and (iii) distribute the Trust Assets in accordance with the terms and conditions hereof.
(c) It is intended that the granting, assignment and conveyance of the Cash Reserve and the Retained Assets by the Partnership to the Trustee pursuant hereto shall be treated for federal and state income tax purposes as if the Partnership made such distributions directly to the holders of Partnership Interests. It is further intended that for federal, state and local income tax purposes the Trust shall be treated as a liquidating trust under Treasury Regulation Section 301.7701-4(d) and any analogous provision of state or local law, and the Beneficiaries shall be treated as the owners of their respective share of the Trust pursuant to Sections 671 through 679 of the Code and any analogous provision of state or local law and shall be taxed on their respective share of the Trust’s taxable income (including both ordinary income and capital gains) pursuant to Section 671 of the Code and any analogous provision of state or local law. The Trustee shall file all tax returns required to be filed with any governmental agency consistent with this position, including, but not limited to, any returns required of grantor trusts pursuant to Section 1.671-4(a) of the Income Tax Regulations. The Partnership agrees that a transfer agent acting on its behalf may prepare and file applicable K-1’s respecting the Beneficiaries’ Partnership income. To the extent that the Trustee becomes liable for the payment of taxes, including withholding taxes, in respect of income derived from the investment of funds held hereunder or any payment made hereunder (collectively, the “Taxes”), the Trustee may pay such Taxes. The Trustee may withhold from any payment of the Trust Assets such amount as the Trustee estimates to be sufficient to provide for the payment of such Taxes not yet paid, and may use the sum withheld for that purpose. The Trustee shall be indemnified and held harmless against any liability for Taxes and for any penalties or interest in respect of Taxes on such investment income or payments in the manner provided herein.
2.2 Prohibited Activities . (a) The Trust shall not continue or engage in the conduct of any trade or business, except as necessary for the orderly liquidation of the Trust Assets. The Trust’s activities will be limited to the holding, collection and sale of the Trust Assets.
(b) The Trustee shall not take any action to facilitate or encourage any trading in the Beneficial Interests or in any instrument tied to the value of the Beneficial Interests. Further, the Trustee will require each of its Affiliated Persons to refrain from taking any such action.
2.3 No Reversion to the Partnership . In no event shall any part of the Trust Assets revert to or be distributed to the Partnership.
2.4 Payment of Liabilities . To the extent that there are available Trust Assets in the Trust, the Trust hereby agrees to assume all Liabilities of the Partnership on the Effective Date. Should any Liability be asserted against the Trust as the transferee of the Trust Assets or as a result of the assumption made in this paragraph, the Trustee may use such part of the Trust Assets as may be necessary in contesting any such Liability or in payment thereof. In no event shall the Trustee, Beneficiaries or employees or agents of the Trust be personally liable, nor shall resort be had to the private property of such Persons or to any other Trust Assets, in the event the Trust Assets are not sufficient to satisfy the Liabilities asserted against or payable out of the Partnership’s available Trust Assets in the Trust.
2.5 Bill of Sale, Assignment, Acceptance and Assumption Agreement; Instruments of Further Assurance . On the Effective Date, the Partnership and the Trust shall execute a Bill of Sale, Assignment, Acceptance and Assumption Agreement conveying the Retained Assets, Cash Reserve and Liabilities to the Trust, a form of which is attached as Exhibit A hereto. After the dissolution of the Partnership, such Persons as shall have the right and power to so act, will, upon reasonable request of the Trustee, execute, acknowledge, and deliver such further instruments and do such further acts as may be necessary or proper to carry out effectively the purposes of this Agreement, to confirm or effectuate the transfer to the Trustee of any property intended to be covered hereby, and to vest in the Trustee, its successors and assigns, the estate, powers, instruments or funds in trust hereunder.
2.6 Incidents of Ownership . The holders of Partnership Interests as of the Record Date shall be the Initial Beneficiaries of the Trust as holders of Trust Units in the Trust, and the Trustee shall retain only such incidents of legal ownership as are necessary to undertake the actions and transactions authorized herein.
2.7 Notice to Unlocated Holders of Partnership Interests . If the Trust holds Trust Assets for unlocated holders of any Partnership Interests, due notice shall be given to such holders of Partnership Interests in accordance with [Delaware] law.
3.1 Beneficial Interests .
(a) The Beneficial Interest of each Initial Beneficiary hereof shall be determined by the Partnership in accordance with a certified copy of the Partnership’s list of Partnership Unit holders as of the Record Date (the “List”). The Partnership will deliver the certified copy of the List to the Trustee within a reasonable time after the Record Date specifying the Beneficial Interests of each Initial Beneficiary in the Partnership. For ease of administration, the List shall express the Beneficial Interest of each Initial Beneficiary in terms of units and it is intended that each unit shall represent one Trust Unit in the Trust.
(b) In the case of the Partnership Unit holders, customary institutional book-entry or other records or any other evidence of ownership satisfactory to the Trustee will be deemed to evidence the Beneficial Interest in the Trust of each such Beneficiary.
(c) If any conflicting claims or demands are made or asserted with respect to the ownership of any Trust Units, or if there should be any disagreement between the transferees, assignees, heirs, representatives or legatees succeeding to all or part of the interest of any Beneficiary resulting in adverse claims or demands being made in connection with such Trust Units, then, in any of such events, the Trustee shall be entitled, at its sole election, to refuse to comply with any such conflicting claims or demands. In so refusing, the Trustee may elect to make no payment or distribution with respect to such Trust Units, or to make such payment to a court of competent jurisdiction or an escrow agent, and in so doing the Trustee shall not be or become liable to any of such parties for their failure or refusal to comply with any of such conflicting claims or demands, nor shall the Trustee be liable for interest on any funds which it may so withhold. The Trustee shall be entitled to refrain and refuse to act until either (i) the rights of the adverse claimants have been adjudicated by a final judgment of a court of competent jurisdiction, (ii) all differences have been adjusted by valid written agreement between all of such parties, and the Trustee shall have been furnished with an executed counterpart of such agreement, or (iii) there is furnished to the Trustee a surety bond or other security satisfactory to the Trustee, as it shall deem appropriate, to fully indemnify it as between all conflicting claims or demands.
3.2 Rights of Beneficiaries . Each Beneficiary shall be entitled to participate in the rights and benefits due to a Beneficiary hereunder according to his Beneficial Interest. Each Beneficiary shall take and hold the same subject to all the terms and provisions of this Agreement. The interest of the Beneficiary hereby is declared and shall be in all respects personal property and upon the death of an individual Beneficiary, his Beneficial Interest shall pass as personal property to his legal representative and such death shall in no way terminate or affect the validity of this Agreement, provided that the Trustee shall not be required to evidence a book entry transfer of a deceased Beneficiary’s Beneficial Interest to his legal representative until the Trustee shall have received Letters Testamentary or Letters of Administration and written notice of the death of the deceased Beneficiary. A Beneficiary shall have no title to, right to, possession of, management of, or control of, the Trust Assets except as herein expressly provided. No widower, widow, heir, or devisee of any person who may be a Beneficiary shall have any right of dower, homestead, or inheritance, or of partition, or of any other right, statutory or otherwise, in any property forming a part of Trust Assets but the whole title to the Trust Assets shall be vested in the Trustee and the sole interest of the applicable Beneficiaries shall be the rights and benefits given to such Persons under this Agreement.
3.3 No Transfer of Interests of Beneficiaries . The Beneficial Interest of a Beneficiary may not be transferred by any Beneficiary in person or by a duly authorized agent or attorney, or by the properly appointed legal representatives of the Beneficiary, nor may a Beneficiary have authority or power to sell, assign, transfer, encumber, or in any other manner dispose of his Beneficial Interest; provided, however, that the Beneficial Interest shall be assignable or transferable by will, intestate succession, or operation of law.
Except as may be otherwise required by law, the Beneficial Interests of the Beneficiaries hereunder shall not be subject to attachment, execution, sequestration or any order of a court, nor shall such interests be subject to the contracts, debts, obligations, engagements or liabilities of any Beneficiary, but the interest of a Beneficiary shall be paid by the Trustee to the Beneficiary free and clear of all assignments, attachments, anticipations, levies, executions, decrees and sequestrations and shall become the property of the Beneficiary only when actually received by such Beneficiary.
3.4 Trustee as Beneficiary . The Trustee, either individually or in a representative or fiduciary capacity, may be a Beneficiary to the same extent as if it were not a Trustee hereunder and shall have all the rights of a Beneficiary, including, without limitation, the right to vote and to receive distributions, to the same extent as if it was not the Trustee hereunder.
DURATION AND TERMINATION OF TRUST
4.1 Duration . The existence of this Trust shall terminate upon the earliest of (i) a termination required by the applicable laws of the State of [Delaware], (ii) the termination due to the distribution of all Trust Assets as provided in Section 5.5, or (iii) June 30, 2008; provided, however, that the Trustee, in its discretion, may extend the existence of this Trust to such later date as it may designate, if it determines that an extension is reasonably necessary to pay or make provision for then known liabilities, actual or contingent.
4.2 Other Obligations of the Trustee upon Termination . Upon distribution of all the Trust Assets, the Trustee shall provide for the retention of all necessary books, records, lists of holders of Trust Units in the Trust, certificates and files that shall have been delivered to or created by the Trustee for a period of ten (10) years thereafter, at the Trustee’s discretion, all of such records and documents may be destroyed. Except as otherwise specifically provided herein, upon the distribution of all Trust Assets in the Trust, the Trustee shall have no further duties or obligations hereunder.
ADMINISTRATION OF TRUST ASSETS
5.1 Sale of Trust Assets . The Trustee is hereby authorized and directed, at such times as it may deem appropriate, to transfer, assign, or otherwise dispose of all or any part of the Trust Assets in the Trust as it deems appropriate at public auction or at private sale for cash, securities or other property, or upon credit (either secured or unsecured as the Trustee shall determine).
5.2 Transactions with Related Persons . Notwithstanding any other provisions of this Agreement, the Trustee shall not knowingly, directly or indirectly, sell or otherwise transfer all or any part of any Trust Assets to, or contract with, (i) itself or any other Trustee or an employee or agent (acting in its or their individual capacities) of this Trust, or (ii) any Person of which any Trustee, employee or agent of this Trust is an affiliate by reason of being a trustee, director, officer, partner or direct or indirect beneficial owner of 5% or more of the outstanding capital stock, shares or other equity interest of such Persons (each of the persons referred to in (i) and (ii) above, a “Related Person”). Notwithstanding the foregoing, in any circumstance where an asset or a direct or indirect interest in an asset is jointly-owned by a Related Person and the Partnership on the date hereof and such asset or the Partnership’s interest in such asset becomes a Trust Asset, the Trustee may sell or otherwise transfer such Trust Asset to such Related Person pursuant to any contractual arrangement with such Related Person.
5.3 Payment of Claims, Expenses and Liabilities . Provided the Trustee has been advised in writing respecting such claims, expenses, charges, liabilities and obligations, the Trustee shall pay from the Trust Assets in the Trust all claims, expenses, charges, liabilities, and obligations of the Trust Assets and all Liabilities relating to the Trust Assets and obligations which the Trustee specifically assumes and agrees to pay pursuant to this Agreement and such transferee liabilities which the Trustee may be obligated to pay as transferees of the Trust Assets in the Trust, including among the foregoing, and without limiting the generality of the foregoing, interest, penalties, taxes, assessments, and public charges of every kind and nature and the costs, charges, and expenses connected with or growing out of the execution or administration of this Trust and such other payments and disbursements as are provided in this Agreement or which may be determined to be a proper charge against the Trust Assets in the Trust by the Trustee.
5.4 Interim Distributions . At such times as may be determined by it in its sole discretion, the Trustee shall distribute, or cause to be distributed, to the Beneficiaries, in proportion to the number of Trust Units held by each Beneficiary relating to the Trust, such cash or other property comprising a portion of the Trust Assets as the Trustee may in its sole discretion determine may be distributed without detriment to the conservation and protection of the Trust Assets in the Trust.
5.5 Final Distribution . If the Trustee determines that the Liabilities and all other claims, expenses, charges, liabilities and obligations of the Trust have been paid or discharged, or if the existence of the Trust shall terminate pursuant to Section 4.1, the Trustee shall, as expeditiously as is consistent with the conservation and protection of the Trust Assets, distribute the Trust Assets to the Beneficiaries in proportion to the number of Trust Units held by each Beneficiary in the Trust based on the list submitted to the Trustee by the Partnership pursuant to Section 3.1 above, as such list may be amended. The Trustee shall hold in the Trust and thereafter make disposition of all liquidating distributions and other payments due any Beneficiaries who have not been located, in accordance with [Delaware] law, subject to applicable state laws regarding escheat and abandoned property. It is understood that the Trustee and the Beneficiary’s bank in any funds transfer may rely solely upon any account numbers or similar identifying number provided by the parties hereto to identify (i) the Beneficiary, (ii) the Beneficiary’s bank, or (iii) an intermediary bank. The Trustee may apply any of the Trust Assets for any payment order it executes using any such identifying number, even where its use may result in a person other than the Beneficiary being paid, or the transfer of funds to a bank other than the Beneficiary’s bank, or an intermediary bank designated.
5.6 Reports to Beneficiaries and Others . As soon as practicable after the end of each taxable year of the Trust and after termination of the Trust, the Trustee shall submit a written report and account to the Beneficiaries showing (i) the assets and liabilities of the Trust at the end of such taxable year or upon termination and the receipts and disbursements of the Trustee for such taxable year or period, (ii) any changes in the Trust Assets which they have not previously reported, and (iii) any action taken by the Trustee in the performance of its duties under this Agreement which it has not previously reported and which, in its opinion, materially affects the Trust Assets. The Trustee may submit similar reports for such interim periods during the taxable year as it deems advisable or as may be required by the Securities and Exchange Commission. The taxable year of the Trust shall end on December 31 of each year unless the Trustee deems it advisable to establish some other date as the date on which the taxable year of the Trust shall end.
5.7 Federal Income Tax Information . As soon as practicable after the close of each taxable year, the Trustee shall direct its transfer agent to mail to each Person who was a Beneficiary at the close of the year, a statement showing on a Trust Unit basis in the Trust the dates and amounts of all distributions made by the Trustee, if any, income earned on assets held by the Trust, if any, such other information as is reasonably available to the Trustee which the Trustee determines may be helpful in determining the amount of gross income and expenses attributable to the Trust that such Beneficiary should include in such Person’s federal income tax return for the preceding year and any other information as may be required to be furnished under the tax laws. In addition, after receipt of a written request in good faith, or in its discretion without such request or if required by applicable law, such transfer agent (or if it cannot, the Trustee) shall furnish to any Person who has been a Beneficiary at any time during the preceding year a statement containing such further information as is reasonably available to the transfer agent or Trustee, respectively, which shall be helpful in determining the amount of taxable income which such Person should include in such Person’s federal income tax return.
5.8 Employment of Manager .
(a) The Trustee shall be responsible for the general policies of the Trust and for the general supervision of the activities of the Trust conducted by all agents, employees, advisors or managers of the Trust. However, the Trustee is not and shall not be required personally to conduct the activities of the Trust, and consistent with its ultimate responsibility as stated above, the Trustee shall have the power to appoint, employ or contract with any Person or Persons (including any corporation, partnership, or trust in which one or more of them may be directors, officers, shareholders, partners or trustees) as the Trustee may deem necessary or proper for the transaction of the activities of the Trust. The Trustee may therefore employ or contract with such Person or Persons (herein referred to as the “Manager”) and may grant or delegate such authority to the Manager as the Trustee may in its sole discretion deem necessary or desirable to carry out the purpose of the Trust without regard to whether such authority is normally granted or delegated by trustees.
The Trustee shall have the power to determine the terms and compensation of the Manager or any other Person whom they may employ or with whom they may contract. The Trustee may exercise broad discretion in allowing the Manager to administer and regulate the operations of the Trust, to act as agent for the Trust, to execute documents on behalf of the Trustee, and to make executive decisions which conform to general policies and general principles previously established by the Trustee.
(b) The Manager or other Persons shall not be required to administer the Trust as its sole and exclusive function and may have other business interests and may engage in other activities similar or in addition to those relating to the Trust, including the rendering of advice or services of any kind to investors or any other Persons and the management of other investments.
POWERS OF AND LIMITATIONS ON THE TRUSTEE
6.1 Limitations on Trustee . Except as contemplated by this Agreement, the Trustee shall not at any time, on behalf of the Trust or the Beneficiaries, enter into or engage in any trade or business, and no part of any Trust Assets shall be used or disposed of by the Trustee in furtherance of any trade or business. Except as the Trustee reasonably believes is consistent with and in furtherance of its obligations under this Agreement, the Trustee shall be restricted to the holding, collection and sale of the Trust Assets and the payment and distribution thereof for the purposes set forth in this Agreement and to the conservation and protection of the Trust Assets and the administration thereof in accordance with the provisions of this Agreement. In no event shall the Trustee receive any property, make any distribution, satisfy or discharge any claims, expenses, charges, liabilities and obligations or otherwise take any action which is inconsistent with a complete liquidation of the Partnership within the meaning of the Internal Revenue Code of 1986, as amended, Treasury Regulations promulgated thereunder, and rulings, decisions and determinations of the Internal Revenue Service and courts of competent jurisdiction, or take any action which would jeopardize the status of the Trust as a “liquidating trust” for federal income tax purposes within the meaning of Treasury Regulation Section 301.7701-4(d). This limitation shall apply regardless of whether the conduct of any such trade or business is deemed by the Trustee to be necessary or proper for the conservation and protection of the Trust Assets. The Trustee shall not invest any of the cash held as Trust Assets, except that the Trustee may invest in (i) direct obligations of the United States of America or obligations of any agency or inst