Exhibit 99.2
CATSKILL LITIGATION TRUST
C/ O CHRISTIANA BANK & TRUST COMPANY
1314 KING STREET, WILMINGTON, DELAWARE 19801
January 24, 2007
Joel Asen, Manager
JAF Management, LLC
445 Old Academy Road
Fairfield, Connecticut 06824
Dear Joel,
Joe and I enjoyed meeting with you and getting your perspective on the
challenges facing the Catskill Litigation Trust over the next few months.
Consistent with our discussion with you at that time, we have found that the St.
Regis Mohawk class action plaintiffs share many of the same challenges and have
discussed merging our interests with them through an agreement that we are now
working to finalize.
The purpose of this letter is to summarize and formalize the arrangements
we have discussed regarding the use by the Catskill Litigation Trust (the
"Trust") of consultant services from JAF Management, LLC. (the "Consultant") .
Consistent with our discussions with you, we propose the following arrangements:
A) SCOPE OF SERVICES. (1) During the term of this Agreement, Consultant
will provide consulting services to the Trust concerning strategic and
structuring alternatives; capital market and industry conditions and financial
valuations relating to potential settlement opportunities or active settlement
negotiations in connection with any of the litigation matters (herein referred
to as the "Litigations") under the management of the Trust, from time to time,
and such other matters related to the foregoing as the Trust may request. In
providing these services, Consultant will assign Joel Asen to supervise the
services it provides.
(2) The Trust agrees that any reference to Consultant in any release,
communication, or material distributed to the media is subject to Consultant's
prior written approval, which it may give or withhold in its sole discretion,
but which shall not be unreasonably withheld. If Consultant resigns prior to the
dissemination of any such release, communication or material, no reference to
Consultant shall be made therein, despite any prior written approval that may
have been given.
(3) No statements made or advice rendered by Consultant in connection with
the services performed pursuant to this Agreement will be quoted or referred to
in any report, document, release or other communication, whether written or oral
issued or transmitted by the Trust without the Consultant's written
authorization. The Trust shall not authorize or permit such action by any person
or corporation employed by the Trust or controlling, controlled by or under
common control with the Trust or any Trustee, employee, agent or representative.
Written authorization of the Consultant may be given or withheld in its sole
discretion, which shall not be unreasonably withheld, except to the extent
required by law (in which case the appropriate party shall so advise Consultant
in writing prior to such use and shall consult and cooperate with Consultant
with respect to the form and timing of disclosure).
(4) In providing services hereunder, Consultant shall not undertake any
fiduciary responsibility to the Trust, its unitholders or other investors or
beneficiaries and shall not be responsible for any damages for failure to
exercise other than ordinary care. Consultant shall not enter into any
engagement or agreement which shall result in a conflict or potential conflict
of interest with the Trust, nor shall it receive any compensation for services
rendered in connection with the Trust, unless it shall have fully disclosed the
nature of such conflict or compensation to the Trust and shall have obtained the
Trust's written consent.
(5) Consultant will perform all services under this Agreement as an
independent contractor and will be responsible for all taxes and other
applicable requirements of law relating to its services. Neither the consultant,
nor any of its principals, officers, employees or affiliates shall be treated as
an employee or agent of the Trust or shall have the power to bind the Trust.
B) INFORMATION CONCERNING THE TRUST. The Trust will assume responsibility
for providing information concerning the Trust to Consultant. The Trust
recognizes and confirms that, except as to materials and information provided to
the Trust by the Consultant as a part of the services covered by this Agreement,
Consultant: a) will use and rely on such information and other information
available from other sources in performing the services contemplated by this
Agreement without having independently verified the same; b) does not assume
responsibility for the accuracy or completeness of the such information; and c)
will not make any independent investigation of such information. Without
undertaking to assure the accuracy and completeness of the Trust's information,
Consultant retains the right to continue to perform due diligence on the Trust
during the course of the engagement and the Trust agrees that it will cooperate
with such activities in good faith.
C) PUBLICITY AND CONFIDENTIALITY. The Consultant acknowledges that the
subject matter of this Agreement is highly sensitive in nature and that serious
economic and other harm could arise from the inappropriate release to the public
of information concerning the matters that are the subject of this Agreement.
From and after the date of this Agreement and thereafter for a period of three
years following the date of its termination, Consultant agrees to maintain the
confidentiality of all material non-public information it receives concerning
the Trust and that no such information is to be given by the Consultant to any
third party concerning this Agreement or the status of the Litigations, except
as specifically authorized by the Trust or otherwise required by law.
D) TERM. The Term of this Agreement commences on the date of this
Agreement and end on March 31, 2008. Upon any expiration date, this Agreement
may be automatically extended upon mutual agreement of the parties. This
Agreement may also be terminated by Consultant at any time, without cause, upon
five days notice, by written notice of termination delivered to the Trust at the
address shown above. In the event that the Consultant terminates this Agreement,
the Trust shall have no further liability for fees.
E) COMPENSATION. (1) In payment for its services rendered and to be
rendered hereunder, the Trust agrees to pay to Consultant a success fee in
connection with any out-of-court settlement or termination arrangement or sale
or distribution of any litigation claims by the Trust with respect to any of the
Litigations, equal to three percent (3%) of the amount by which the cumulative
gross realizable value of such settlement or termination arrangement exceeds
$200 Million during the term of this Agreement. For this purpose, gross
realizable value shall include the value of any settlement or termination or
sale of any claim for less than $200 million if such settlement or termination
is directed by any person who, by virtue of gaining control over the units of
the Trust, is able to direct the Trust to enter into such settlement or other
termination. The Trust has entered into a Joint Alliance Agreement with the St.
Regis Mohawk Tribe agreeing to work together toward the merger of their
respective claims within the Trust. Prior to the consummation of such merger,
the St. Regis Mohawk Tribe has given the Trust exclusive responsibility for the
management of the claims to be merged into the Trust. For purposes of this
Agreement, any settlement of such claims shall be treated as a part of the
settlement of the Litigations. Nothing in this Agreement shall preclude the
Trustees from settling, terminating or selling any claim or claims for any
amount.
(2) Any compensation payable to the Consultant hereunder shall be treated as
an expense of the Trust and shall not be deducted in determining the value of
any settlement or termination arrangement. To the extent that any portion of the
gross realizable value of such settlement is to be realized in the form of a
cash payment, such compensation shall be payable immediately upon receipt of
such payment. If any portion of such value is represented by tangible or
intangible assets, Consultant shall receive a 3% equity interest therein and the
Trustees shall provide the Consultant with satisfactory documentation to
evidence the ownership of such equity interest and shall provide such assistance
to the Consultant in realizing the cash value of such equity interest as shall
be reasonably requested by the Consultant.
(3) In addition to the compensation to be paid to Consultant as provided
above in this Section the Trust shall pay to Consultant, promptly as billed and
properly documented, all reasonable expenses incurred by Consultant in providing
services under this Agreement, provided that the cumulative amount of such
expenses shall not exceed $5,000 without the express written consent of the
Trust.
F) ASSIGNMENT. This Agreement may not be assigned by either party hereto
without the prior written consent of the other, to be given in the sole
discretion of the party from whom such consent is being requested. Any attempted
assignment of this Agreement made without such consent may be void, at the
option of the other party. This provision shall not apply to any assignment made
to a successor of the Trust or Consultant.
G) THIRD PARTY BENEFICIARIES. This Agreement has been and is made solely
for the benefit of the Trust, Consultant and the other Indemnified Persons and
their respective successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement.
H) CONSTRUCTION. This Agreement incorporates the entire understanding of
the parties and supersedes all previous agreements relating to the subject
matter hereof should they exist, and shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to principles
of conflicts of law.
I) AMENDMENT. This Agreement may not be modified or amended except in a
writing duly executed by the parties hereto.
The above indicates our understanding of the Agreement between the Trust
and the Consultant. Please sign and return to us an original and one copy of
this letter to indicate your acceptance of its terms as of its date.
Sincerely,
CATSKILL LITIGATION TRUST
/s/ Paul deBary
AGREED AND ACCEPTED: BY: PAUL DEBARY, TRUSTEE
JAF MANAGEMENT, LLC
/s/ Joel Asen /s/ Joseph Bernstein
BY: JOEL ASEN, MANAGER BY: JOSEPH BERNSTEIN, TRUSTEE
