EXHIBIT 2.2
IBF FUND LIQUIDATING LLC OPERATING AGREEMENT
THIS OPERATING AGREEMENT (this "Agreement") is dated as of September
25, 2003, and is entered by and among IBF Fund Liquidating LLC (the "Company")
and the Persons who become Members of the Company pursuant to the Plan (as
defined below).
RECITALS
WHEREAS, on June 7, 2002, InterBank Funding Corp. ("IBF"), IBF
VI-Secured Lending Corporation ("SLC") and IBF Collateralized Finance
Corporation ("CFC") each filed a voluntary petition for relief under chapter 11
of the title 11 of the United States Code, 11 U.S.C. Sections 101 et seq. (as
amended, the "Bankruptcy Code"), in the Southern District of New York. On
November 4, 2002, IBF Premier Hotel Group, Inc. ("IBF Hotel" and, collectively
with IBF, SLC and CFC, the "Debtors") filed a voluntary petition for relief
under chapter 11 of the Bankruptcy Code in the Southern District of New York.
The Debtors' chapter 11 cases were assigned to Bankruptcy Judge Burton R.
Lifland (the "Bankruptcy Court"), were consolidated for procedural purposes and
have been jointly administered.
WHEREAS, on July 23, 2002, the United States Securities and Exchange
Commission (the "SEC") filed a complaint against IBF, CFC, SLC and Simon A.
Hershon in the United States District Court for the Southern District of New
York (the "District Court"), commencing a proceeding, Securities and Exchange
Commission v. IBF Collateralized Finance Corp. et al., No. 02-CV-5713-JSM (the
"SEC Litigation"). The SEC Litigation is currently pending before the District
Court. In the SEC Litigation, the SEC is alleging in general that SLC and CFC
were operated as unregistered investment companies in violation of the
Investment Company Act of 1940, 15 U.S.C. Sections 80a-1 et seq., as amended
(the "Investment Company Act"), and that certain disclosures to investors were
misleading.
WHEREAS, on December 5, 2002, on motion of the SEC in the SEC
Litigation, the District Court entered an order granting partial summary
judgment in favor of the SEC and ordering the immediate appointment of Arthur J.
Steinberg to serve as Investment Company Act trustee (the "Trustee") for CFC,
SLC, and their respective subsidiaries, pursuant to 15 U.S.C. Section 80a-41(d).
WHEREAS, on May 28, 2003, the Trustee filed a proposed joint
liquidating plan of reorganization with respect to the Debtors (as amended,
modified or supplemented from time to time, the "Plan," a copy of which is
appended hereto as Exhibit A and incorporated in this Agreement in its entirety)
and the disclosure statement with respect thereto. The Plan is the product of
discussions between the Trustee, the Debtors, the Committee (as defined herein)
and the staff of the SEC, and incorporates various settlements and compromises
therein.
WHEREAS, the Bankruptcy Court confirmed the Plan by order dated August
14, 2003 (the "Confirmation Order").
WHEREAS, pursuant to section 105(a) of the Bankruptcy Code, the Plan
and Confirmation Order provide for the substantive consolidation of the
bankruptcy estates of CFC, SLC and IBF Hotel (collectively, the "Fund Debtors")
for purposes of voting, confirmation and distributions under the Plan.
WHEREAS, the Plan provides for certain assets of the Fund Debtors'
estates to be assigned, transferred or otherwise conveyed to the Company on the
Effective Date of the Plan, to be held, administered, liquidated and distributed
by the Company in accordance with the terms of the Plan.
WHEREAS, the Plan further provides that, on the Effective Date, each
holder of an Allowed Claim in Class SLC-4 (if such holder does not exercise its
option to compromise its Claim and receive a cash payment), CFC-4 (if such
holder does not exercise its option to compromise its claim and receive a cash
payment) or IBF Hotel-4 shall, by operation of the Plan, (a) be admitted to the
Company as a member, (b) become bound by this Agreement, and (c) receive, in
exchange for such Allowed Claim, Membership Interests (as defined herein), in
the amount determined pursuant to the Plan, conferring membership in the Company
and representing the rights conferred on such holder by the Plan (provided that
Membership Interests with respect to Disputed Claims in Class SLC-4, CFC-4 or
IBF Hotel-4 shall be held in the Disputed Claims Reserve, pending allowance or
disallowance thereof), and each holder of an Allowed Claim SLC-3 and CLC-3
shall, by operation of the Plan, receive, among other things, an Escrow Note in
the amounts provided in the Plan.
NOW, THEREFORE, in order to implement the Plan, and in consideration of
the mutual promises and other good and valuable consideration contained in this
Agreement, the receipt and sufficiency of which hereby are acknowledged, the
Members of the Company agree as follows:
I.
LIQUIDATING LLC
1.1 DEFINITIONS
Capitalized terms used in this Agreement shall, unless otherwise noted
or the context otherwise requires, have the meanings assigned below. Capitalized
terms used but not defined in this Agreement shall have the meanings assigned in
the Plan. Whenever it appears appropriate from the context, each term stated in
the singular or the plural includes the singular and plural, and each pronoun
stated in the masculine, feminine or neuter includes the masculine, feminine and
neuter.
(a) "Act" shall mean the Delaware Limited Liability Company Act, 6
Del. C. Sections 18-101 et seq., as amended from time to time (or any succeeding
law).
(b) "Adjusted Capital Account" shall mean, with respect to any
Member, such Member's Capital Account, increased for the amount such Member is
deemed obligated to restore pursuant to (A) the penultimate sentences of
Treasury Regulations Section 1.704-2(g)(l) and 1.704-2(i)(5) and (B) Treasury
Regulations Sections 1.704-1(b)(2)(ii)(c), as of the end of the Company's Fiscal
Year or other applicable period, and reduced for the items described in Treasury
Regulations Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6).
(c) "Affiliate" shall mean, with respect to any Person, (i) any
Person directly or indirectly controlling, controlled by or under common control
with such Person, (ii) any officer, director, manager or trustee of such Person
or (iii) any Person who is an officer, director, member or trustee of any Person
described in clauses (i) or (ii) hereof. For purposes of this definition, the
terms "controlling," "controlled by" or "under common control with" shall mean
the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of a Person or entity, whether through
the ownership of voting securities, by contract or otherwise, or the power to
elect at least fifty percent (50%) of the directors, managers, or persons
exercising similar authority with respect to such Person or entities.
(d) "AIH" shall mean IBF V-Alternative Investment Holdings LLC, a
Delaware limited liability company.
(e) "Assets" shall have the meaning assigned in Section 2.1
hereof.
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(f) "Capital Account" shall have the meaning ascribed in Section
3.3 hereof.
(g) "Capital Contributions" shall mean, with respect to any
Member, the amount of cash and the Gross Asset Value of any other assets
contributed in accordance with Sections 8.3 and 8.4 of the Plan to the Company
by a Member with respect to the Membership Interests in the Company held by such
Member in the amounts set forth with respect to such Member on Exhibit B hereto,
as such Exhibit may be amended by the Manager as provided in this Agreement.
(h) "Certificate" shall mean the certificate of formation filed
with the Secretary of State of the State of Delaware pursuant to the Act to form
the Company, as originally executed and as amended, modified or supplemented
from time to time, as the context requires.
(i) "Certificate of Cancellation" shall mean a certificate filed
in accordance with Section 18-203 of the Act.
(j) "Committee" shall mean the Official Committee of Unsecured
Creditors appointed pursuant to section 1102(a) of the Bankruptcy Code in the
Fund Debtors', Chapter 11 Cases.
(k) "Debt" shall mean (i) any indebtedness for borrowed money or
the deferred purchase price of property as evidenced by a note, bonds, or other
instruments, (ii) obligations as lessee under capital leases, (iii) obligations
secured by any mortgage, pledge, security interest, encumbrance, lien or charge
of any kind existing on any asset owned or held by the Company whether or not
the Company has assumed or become liable for the obligations secured thereby,
(iv) any obligation under any interest rate swap agreement, (v) accounts payable
and (vi) obligations under direct or indirect guarantees of (including
obligations (contingent or otherwise) to assure a creditor against loss in
respect of) indebtedness or obligations of the kinds referred to in clauses (i),
(ii), (iii), (iv) and (v), above; provided that Debt shall not include
obligations in respect of any accounts payable that are incurred in the ordinary
course of business and are not delinquent or are being contested in good faith
by appropriate proceedings.
(l) "Depreciation" shall mean, for each Fiscal Year or other
period, an amount equal to the depreciation, amortization, or other cost
recovery deduction allowed or allowable for federal income tax purposes with
respect to an asset for such Fiscal Year or other period; provided, however that
if the Gross Asset Value of an asset differs from its adjusted basis for federal
income tax purposes at the beginning of such Fiscal Year or other period,
Depreciation shall be an amount which bears the same ratio to such beginning
Gross Asset Value as the federal income tax depreciation, amortization, or other
cost recovery deduction for such Fiscal Year or other period bears to such
beginning adjusted tax basis; provided, further, that if the adjusted basis for
federal income tax purposes of an asset at the beginning of such Fiscal Year or
other period is zero, Depreciation shall be determined with reference to such
beginning Gross Asset Value using any reasonable method selected by the Manager.
(m) "Dissolution Event" shall have the meaning set forth in
Section 12.1 hereof.
(n) "Fiscal Year" shall mean the taxable year of the Company for
federal income tax purposes.
(o) "Gross Asset Value" shall mean, with respect to any asset of
the Company, such asset's adjusted basis for federal income tax purposes, except
as follows:
(1) the initial Gross Asset Value of any asset
contributed by a Member to the Company shall be the gross fair
market value of such asset (computed without taking Section
7701(g) of the Internal Revenue Code into account) without
reduction for
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liabilities, as determined by the Manager in the amount with
respect to such Member set forth on Exhibit B;
(2) if the Manager reasonably determines that an
adjustment is necessary or appropriate to reflect the relative
economic interests of the Members, the Gross Asset Values of
all Company assets shall be adjusted in accordance with
Treasury Regulations Sections 1.704-1(b)(2)(iv)(f) and (g) to
equal their respective gross fair market values, without
reduction for liabilities, as reasonably determined by the
Manager, as of the following times: a Capital Contribution
(other than a de minimis Capital Contribution) to the Company
by a new or existing Member as consideration for an interest
in the Company; the distribution by the Company to a Member of
more than a de minimis amount of Company assets as
consideration for the redemption of an interest in the
Company; or the liquidation of the Company within the meaning
of Treasury Regulations Section 1.704-1(b)(2)(ii)(g);
(3) the Gross Asset Value of any asset distributed to any
Member shall be the gross fair market value of such asset
(computed without taking Section 7701(g) of the Internal
Revenue Code into account) without reduction for liabilities,
as reasonably determined by the Manager as of the date of
distribution; and
(4) the Gross Asset Values of Company assets shall be
increased (or decreased) to reflect any adjustments to the
adjusted basis of such assets pursuant to Sections 734(b) or
743(b) of the Internal Revenue Code, but only to the extent
that such adjustments are taken into account in determining
Capital Accounts pursuant to Treasury Regulations Section
1.704-1(b)(2)(iv)(m); provided, however, that Gross Asset
Values shall not be adjusted pursuant to this paragraph (4) to
the extent that the Manager reasonably determines that an
adjustment pursuant to paragraph (2) above is necessary or
appropriate in connection with a transaction that would
otherwise result in an adjustment pursuant to this paragraph
(4).
At all times, Gross Asset Values shall be adjusted by any Depreciation taken
into account with respect to the Company's assets for purposes of computing Net
Profits and Net Losses.
(p) "Internal Revenue Code" shall mean the Internal Revenue Code
of 1986, as amended.
(q) "Liquidating Committee" shall mean the Liquidating Committee
referred to in Section 4.4(a) hereof.
(r) "Manager" shall mean the Manager referred to in Section 4.1
hereof.
(s) "Member" shall mean any Person who (i) holds a Membership
Interest in the Company, (ii) has become a Member pursuant to the terms of this
Agreement, and (iii) has not ceased to be a Member pursuant to the terms of this
Agreement.
(t) "Membership Interest" shall mean an uncertificated ownership
interest in the Company, created under, issued pursuant to, and which shall have
the rights and be subject to the restrictions contained in, this Agreement.
(u) "Minimum Gain" shall mean the total gain which the Company
would realize if it sold, in a taxable disposition, each of its assets that were
subject to nonrecourse liabilities in full satisfaction of
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the liabilities. In computing such gain, only the portion of the assets' tax
bases allocated to nonrecourse liabilities of the Company shall be taken into
account.
(v) "Net Profits" and "Net Losses," respectively, shall mean for
each Fiscal Year or other applicable period the net taxable income or loss
(i.e., the aggregate amount of all income and gain reduced by the aggregate
amount of all loss and deduction) of the Company determined in accordance with
the method of accounting followed by the Company for federal income tax purposes
and determined in accordance with Internal Revenue Code Section 703(a) (for this
purpose, all items of income, gain, loss and deduction required to be stated
separately pursuant to Internal Revenue Code Section 703(a)(1) shall be included
in taxable income or loss); provided, however, (i) any receipts of the Company
that are exempt from federal income tax shall be added to such income or loss,
(ii) any expenditures of the Company described in Internal Revenue Code Section
705(a)(2)(B), or treated as so described pursuant to Treasury Regulations
Section 1.704-1(b)(2)(iv)(i), shall be subtracted from such income or loss,
(iii) in lieu of depreciation, amortization and other cost recovery deductions,
there shall be taken in account Depreciation in computing such taxable income or
loss and (iv) gain or loss resulting from the disposition of Company assets
shall be computed by reference to the Gross Asset Value of the Company assets,
notwithstanding that the adjusted tax basis of the Company assets differs from
their Gross Asset Value.
(w) "Permitted Transfer" shall have the meaning set forth in
Section 11.1 hereof.
(x) "Person" shall mean any individual, company (whether general
or limited), partnership, limited liability company, corporation, trust, estate,
association, nominee or other entity.
1.2 FORMATION
Pursuant to the Plan, the Company has been organized as a limited
liability company under the Act and upon the terms and subject to the conditions
set forth in this Agreement. The Members shall be admitted as members of the
Company by operation of the Plan, as described in Section 8.4 of the Plan. The
Company shall act as the Fund Liquidating LLC specified in the Plan.
Simultaneously with execution of this Agreement (by the Manager, on behalf of
the Members) and the formation of the Company, each Member shall be admitted as
a member of the Company. The rights and liabilities of the Members shall be as
provided under the Act, the Certificate and this Agreement. In the event of any
conflict or inconsistency between the provisions of this Agreement and any
provision of the Act or the Certificate, the provisions of this Agreement shall
prevail to the fullest extent permitted by the Act.
1.3 NAME
The name of the Company shall be "IBF Fund Liquidating LLC" and all
business of the Company shall be conducted in such name.
1.4 PURPOSES; POWERS
The purpose of the Company is to implement the terms of the Plan that
are not fully performed on the Effective Date. To that end, among other things
and without limitation of any other rights and powers permitted by the Act, the
Company shall be empowered to (i) hold, administer, liquidate and distribute the
Assets transferred to the Company pursuant to the Plan, (ii) evaluate, file and
litigate or otherwise resolve Causes of Action, (iii) object to Claims, and
prosecute or settle such objections and defend claims asserted in connection
therewith (including by way of asserting a right of recoupment, setoff or
otherwise); (iv) settle or compromise, with any holder of securities issued by
AIH, such holder's claims against or interests in AIH, pursuant to Section 7.7
of the Plan; (v) establish and administer the Expense Reserve, Disputed Claims
Reserve and Unclaimed Distributions Reserve; (vi) sell or otherwise transfer
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for value non-cash Assets and deposit or otherwise treat the net proceeds
thereof as provided hereunder; (vii) hold cash, or hold or make additional
investments in certain Assets to maximize the value thereof for the Members,
(viii) abandon any property that cannot be sold or otherwise disposed of for
value and whose distribution to the Members would not be feasible or
cost-effective; (ix) make interim and final distributions in accordance with the
Plan; (x) wind-up the affairs of the Fund Debtors, certain Non-Debtor Affiliates
and the Company, (xi) engage in any and all activities related or incidental to
the purposes set forth in clauses (i) through (x) and under the Plan, and (xii)
have and exercise all powers now or hereafter conferred by the laws of the State
of Delaware on limited liability companies formed pursuant to the Act.
1.5 PRINCIPAL PLACE OF BUSINESS; REGISTERED OFFICE
The principal place of business of the Company shall be at 425 Park
Avenue, 12th Floor, New York, NY 10022. The Manager may change the principal
place of business of the Company to any other place within or without the State
of Delaware upon ten (10) Business Days notice to the Members. The registered
office of the Company in the State of Delaware is currently located at
Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New
Castle, Delaware 19801.
1.6 TERM
The term of the Company commenced with the filing of the Certificate on
September 25, 2003, and shall continue until completion of the dissolution and
wind-up contemplated by Section 12 hereof, provided, that in no event shall the
term of the Company exceed 20 years.
1.7 FILINGS; AGENT FOR SERVICE OF PROCESS
(a) The Members and the Manager shall take any and all actions
necessary to perfect and maintain the status of the Company as a limited
liability company under the laws of the State of Delaware, including but not
limited to the preparation, execution and filing of such amendments to the
Certificate and such other assumed name certificates, documents, instruments and
publications as may be required by law, including, without limitation, actions
to reflect:
(i) a change in the Company name;
(ii) a correction of false or erroneous statements in the
Certificate or the desire of the Members to make a change in any
statement therein in order that it shall accurately represent the
agreement among the Members; or
(iii) a change in the time for dissolution of the Company
as stated in the Certificate and in this Agreement.
(b) The registered agent for service of process on the Company in
the State of Delaware shall be The Corporation Trust Company, or any successor
appointed in accordance with the Act.
(c) Upon the winding-up and dissolution of the Company pursuant to
Section 12 hereof, the Manager shall execute and file a Certificate of
Cancellation in accordance with the Act and the laws of any other jurisdictions
in which the Manager deems such filing necessary or advisable.
1.8 TITLE TO PROPERTY
All property owned by the Company shall be owned by the Company as an
entity and no Member shall have any ownership interest in such property in his
individual name, and each Member's interest in
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the Company shall be personal property for all purposes. At all times after the
date hereof, the Company shall hold title to all of its property in the name of
the Company and not in the name of any Member.
1.9 PAYMENTS OF INDIVIDUAL OBLIGATIONS
The Company's Assets shall be used solely for the benefit of the
Company, and no such asset shall be transferred or encumbered for, or in payment
of, any individual obligation of any Member.
II.
COMPANY ASSETS
2.1 COMPANY ASSETS
(a) On behalf of the Members, the Fund Debtors hereby transfer to
the Company, pursuant to the terms of this Agreement and the Plan, all Fund
Assets remaining after the initial distributions made on or about the Effective
Date (the "Assets"), for treatment in accordance with the Plan and this
Agreement. Title to the Company's Assets shall be held in the Company's name or
in the name of any nominee (including the Manager so acting) that the Manager
may designate. The Manager shall have the power to enter into a nominee
agreement with any such person and such agreement may contain provisions
indemnifying the nominee.
(b) The Company shall be deemed not to be the same legal entity as
the Fund Debtors, but only the assignee of the Assets transferred to the Company
by the Fund Debtors. On the Effective Date, the Manager shall be deemed the
representative of each Fund Debtor's estate under section 1123(b)(3)(B) of the
Bankruptcy Code, with all rights to pursue, and shall be granted and vested
with, all rights and Causes of Action of any Fund Debtor or any Fund Debtor's
estate, including but not limited to all powers of a trustee under chapter 5 of
the Bankruptcy Code. The Manager shall have the right to prosecute Causes of
Action and recoveries therefrom shall be treated in accordance with the Plan.
III.
MEMBERSHIP INTERESTS
3.1 MEMBERSHIP INTERESTS
On the Effective Date, each holder of an Allowed Claim in Class SLC-4,
CFC-4 or IBF Hotel-4 shall, by operation of the Plan, (i) be admitted to the
Company as a Member of the Company, (ii) become bound by this Agreement, and
(iii) receive Membership Interests in the Company, as more particularly
described in the Plan and as set forth with respect to each holder on Exhibit B
hereto. Membership Interests with respect to Disputed Claims in Class SLC-4,
CFC-4 or IBF Hotel-4 shall be deposited in the Disputed Claims Reserve pending
allowance or disallowance of such Claims as provided in the Plan. Upon
conversion of a Disputed Claim into an Allowed Claim, as provided in the Plan,
Membership Interests will be transferred by the Manager from the Disputed Claims
Reserve to the holder of such a claim in amounts determined in accordance with
the Plan and Section 5.2 hereof, and thereupon such holder shall be admitted to
the Company as a Member of the Company and the Manager shall revise Exhibit B to
reflect such Membership Interests assigned to such holder. No other entity,
including the Fund Debtors, shall have any interest, legal, beneficial, or
otherwise, in the Company (except as expressly set forth in Sections 5.2, 10.2
and 11.1 of this Agreement) or the Assets or Causes of Action upon their
transfer to the Company.
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3.2 REGISTRY
The Manager shall maintain a registry of Membership Interests in the
Company. In the event of any conflict between such registry and Exhibit B
hereto, the registry maintained by the Manager shall be determinative.
3.3 CAPITAL ACCOUNTS
(a) An individual capital account shall be maintained for each
Member ("Capital Account"). The Capital Account shall be credited with (i) the
Capital Contributions of such Member (net of liabilities relating to any
contributed property that the Company is considered to assume or take subject to
under Internal Revenue Code Section 752) as set forth with respect to such
Member on Exhibit B, (ii) such Member's distributive share of Net Profits, (iii)
any items of income or gain that are taken into account in determining capital
accounts under Treasury Regulations Section 1.704-1(b)(2)(iv)(m) on account of
any adjustment to the adjusted tax basis of any Company asset pursuant to
Internal Revenue Code Section 734(b) or Section 743(b) and (iv) the amount of
any liabilities of the Company that are assumed by such Member, other than
liabilities described in Section 3.3(b)(i).
(b) The Capital Account shall be debited by (i) the amount of cash
and the Gross Asset Value of other property distributed to such Member (net of
any liabilities relating to such distributed property that the Member is
considered to assume or take subject to under Internal Revenue Code Section
752), (ii) such Member's distributive share of Net Losses, (iii) any items of
loss that are taken into account in determining capital accounts under Treasury
Regulation Section 1.704-1(b)(2)(iv)(m) on account of any Internal Revenue Code
Section 734(b) or Section 743(b) adjustments to the tax basis of Company assets
and (iv) the amount of any liabilities of such Member that are assumed by the
Company, other than liabilities described in Section 3.3(a)(i).
In the event the Gross Asset Value of Company assets is adjusted under
Section 1.1(o) of this Agreement, the Capital Accounts of the Members shall be
adjusted to reflect the aggregate net adjustment as if the Company recognized
Net Profits or Net Losses equal to the amount of such aggregate net adjustment
and such Net Profits or Net Losses were allocated to the Members pursuant to
Section 8.2 of this Agreement. The foregoing provisions relating to the
maintenance of Capital Accounts are intended to comply with Treasury Regulation
Sections 1.704-1(b) and 1.704-2 and shall be applied in a manner consistent with
such Regulations.
(c) Upon the Permitted Transfer of an interest of a Member in the
Company (x) if such transfer does not cause a termination of the Company within
the meaning of Internal Revenue Code Section 708(b)(1)(B), the Capital Account
of the transferor Member that is attributable to the transferred interest will
be carried over to the transferee Member and, if the Company has a Section 754
election in effect, the Capital Account will not be adjusted to reflect any
adjustment under Internal Revenue Code Section 743, or (y) if such transfer
causes a termination of the Company within the meaning of Internal Revenue Code
Section 708(b)(1)(B), the income tax consequences of such termination shall be
governed by the relevant provisions of Subchapter K of Chapter 1 of the Internal
Revenue Code and the regulations promulgated thereunder, and the initial Capital
Accounts of the Members in the new limited liability company resulting from such
termination (which for all other purposes continues to be the Company) shall be
determined in accordance with the Treasury Regulations Sections
1.704-1(b)(2)(iv)(d), (e), (f), (g) and (l) and thereafter in accordance with
this Section 3.3.
(d) No Member shall be paid interest on its Capital Account and
except as otherwise provided in this Agreement, no member shall have the right
to withdraw or receive any portion of the Member's Capital Contribution. No
Member shall be personally liable for the return or repayment of the
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Capital Contributions of the Members, or any portion thereof, it being expressly
understood that any such return of contributions shall be made solely from the
Company's Assets. Under circumstances requiring a return of any Capital
Contribution, no Member shall have the right to receive property other than
cash.
(e) No Member, upon resignation as a Member of the Company, shall
be entitled to receive any amount from the Company with respect to such Member's
Membership Interests except as expressly provided in this Agreement.
IV.
MANAGEMENT
4.1 MANAGER
(a) The management of the Company shall be vested solely in the
Manager.
(i) The Manager shall be Arthur J. Steinberg, Investment
Company Act Trustee of SLC and CFC, or his successor.
(ii) The Manager may resign as Manager of the Company by
delivering written notice thereof (a "Resignation Notice") to the
Company, each member of the Liquidating Committee and the District
Court not fewer than five Business Days in advance of the requested
effectiveness of such resignation. In order to be effective, a
Resignation Notice must include a requested effective date of
resignation and the identity of a successor to serve as Manager. No
such resignation shall be effective until both the resignation and the
successor Manager is approved by the District Court, on appropriate
application and after notice and opportunity for hearing.
(iii) The Manager may not be removed or replaced by any
action of the Members or the Liquidating Committee except as provided
in Section 4.1(a)(iv), below.
(iv) Upon the death or Disability of the Manager, any
Member or Members of the Company may petition the Delaware Court of
Chancery pursuant to Section 18-110 of the Act to appoint a successor
Manager that meets the qualifications set forth in Section 4.1(a)(v),
below. For purposes of this Section 4.1(a)(iv), "Disability" shall mean
(x) a physical or mental disease, defect, condition or injury that the
Delaware Court of Chancery determines prevents the Manager from
discharging his duties as Manager for a period of not less than 90
consecutive days, and (y) the conviction of the Manager of a felony.
(v) No person may serve as Manager of the Company unless
such person (x) is at least 25 years of age, and (y) is approved by the
District Court, on appropriate application and notice and opportunity
for hearing.
(b) The Manager shall perform his duties in good faith, in a
manner he reasonably believes to be in the best interests of the Company, and
with such care as an ordinarily prudent person in a like position would use
under similar circumstances. The Manager shall have no liability to the Company,
the Members or any member of the Liquidating Committee for his actions as
Manager hereunder unless arising solely out of fraud or intentional misconduct
by the Manager.
(c) The Manager shall have the power to delegate authority to such
committees, officers, employees, agents and representatives of the Company as he
may deem appropriate. Without limitation,
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the Manager shall have the power to hire, appoint, fire or remove from office
officers and employees of the Company as he may deem appropriate.
(d) The Manager shall not be liable under a judgment, decree or
order of court, or in any other manner, for any Debt, obligation or liability of
the Company; and neither the Members nor the Manager shall be obligated
personally for any such Debt, obligation or liability of the Company solely by
reason of being a Member of, or acting as a Manager of, the Company.
(e) No Member shall have any authority or right to act for or bind
the Company or to participate in or have any control over the business of the
Company, except for the express rights of the Members to consent to or approve
certain actions and decisions expressly set forth herein.
4.2 POWERS OF THE MANAGER
(a) Except as otherwise expressly provided in this Agreement or
the Plan, all powers to control and manage the business and affairs of the
Company shall be exclusively vested in the Manager, and the Manager may exercise
all powers of the Company and do all such lawful acts that are not by law, the
Certificate, this Agreement or the Plan directed or required to be exercised or
done by the Members and in so doing shall have the right and authority to take
all actions which the Manager deems necessary, useful or appropriate for the
management and conduct of the business and affairs of the Company and to effect
the Plan, including, but not limited to, exercising the rights and powers:
(i) to object to Claims and to prosecute or otherwise
resolve such objections (including by way of settlement, subject to
Section 4.2(c) hereof) and defend claims asserted in connection
therewith (including by way of asserting any Fund Debtor's rights of
recoupment, setoff or otherwise);
(ii) to evaluate, file and litigate or otherwise resolve
Causes of Action;
(iii) to sell or otherwise transfer for value or otherwise
non-cash Assets (including the sale or disposition of substantially all
the Assets of the Company in a single transaction or series of related
transactions) and treat the net proceeds thereof as provided in the
Plan;
(iv) to (x) hold cash in the form of cash, money market
funds, treasury bills or other cash equivalents, at his discretion, (y)
hold Assets for a period of time, at his discretion, or (z) make
additional investments in Assets in order to maximize the value thereof
for benefit of the Members of the Company, pursuant to Section 4.2(b)
hereof;
(v) to abandon any property that cannot be sold or
otherwise disposed of for value and whose distribution to the Members
would not be feasible or cost-effective;
(vi) to establish and thereafter administer the Expense
Reserve, Disputed Claims Reserve and Unclaimed Distributions Reserve
(The Trustee's services as Manager of the Company and administrator of
the Disputed Claims Reserve shall be considered as being provided in
separate capacities. The Company shall indemnify the Trustee for his
actions as administrator of the Disputed Claims Reserve to the fullest
extent permitted by law);
(vii) pursuant to Section 7.6 of the Plan, to take
assignment of the Interest Guarantee Claims and, to the extent such
Claims are or become Allowed Claims, receive the treatment specified
for the holders of Allowed Interest Guarantee Claims under the Plan;
10
(viii) to effect the distributions required but not
previously made under the Plan, including without limitation the
distribution of the Membership Interests;
(ix) to administer and account for the Escrow Notes in
accordance with the Plan, including without limitation Sections 1.2.45,
5.2(c) and 5.3(c) thereof;
(x) to settle or comprise, with any holder of securities
issued by AIH, such holder's claims against or interests in AIH,
pursuant to Section 7.7 of the Plan;
(xi) to file with the Bankruptcy Court or District Court
the reports or documents required by the Plan or otherwise required to
close the Fund Debtors' Chapter 11 Cases;
(xii) to prepare and file tax and informational returns for
the Fund Debtors and the Company;
(xiii) to incur, at the expense of the Company, such
charges, costs and fees as are necessary in connection with the
operation of the Company's business;
(xiv) to employ and retain such professionals as the
Manager may in his discretion deem necessary for the operation and
management of the Company;
(xv) to review, object to, and pay fee requests submitted
by professionals seeking payment from the Company, in accordance with
Section 10.6 of the Plan;
(xvi) to pay all post-Effective Date fees required to be
paid under 28 U.S.C. Section 1930;
(xvii) to establish one or more checking, savings or
investment accounts in the name of the Company, and to have exclusive
control over the disbursement of the Company's funds on deposit or
invested therein;
(xviii) to setoff amounts owed to the Fund Debtors or the
Company against any and all amounts otherwise due to be distributed to
the holder of a Claim under the Plan;
(xix) to wind-up the affairs of the Fund Debtors, certain
Non-Debtor Affiliates and the Company, and dissolve each under
applicable law in accordance with the Plan;
(xx) to provide for the storage and destruction of
records; and
(xxi) to take any other actions that the Manager, in his
discretion, determines to be in the best interests and consistent with
the purposes of the Company.
(b) The Manager may invest cash in one or more Assets in order to
maximize the value of such Assets for the Members of the Company, subject to the
following:
(i) If the aggregate additional investment in an asset
would be less than or equal to $250,000, the Manager may make such
investment in the exercise of his business judgment; if the aggregate
additional investment in an asset would be greater than $250,000 but
less than or equal to $1,000,000, the Manager may make such investment
with the prior consent of the Liquidating Committee or, in the absence
of such consent, upon notice to the Liquidating Committee and after an
opportunity for hearing before the District Court; and if the aggregate
additional investment in
11
an asset would equal or exceed $1,000,000, the Manager shall provide
notice to all of the Members and an opportunity for hearing before the
District Court.
(ii) notwithstanding anything to the contrary in this
Agreement, the Manager is hereby authorized, in the exercise of his
business judgment, to make additional aggregate investments in the
following businesses, in the following amounts, as debt or equity,
without further notice or approval: (i) the Manager may invest up to an
additional $5,000,000 in I&BS; and (ii) the Manager may invest up to an
additional $1,000,000 in U.S. Mills, Inc.
(c) The Manager shall have the exclusive right to compromise and
settle claims against any Fund Debtor or any Fund Debtor's estate, or claims any
Fund Debtor or any Fund Debtor's estate may have against another Person, in the
exercise of his business judgment and without approval of the Bankruptcy Court
or the District Court, provided, however, that the Manager must seek the
approval of the Bankruptcy Court, on appropriate application, in the event that
any proposed compromise or settlement (a) is with any "insider" of a Debtor, as
such term is defined in section 101(31) of the Bankruptcy Code, or (b) where the
claim compromised has a face amount in excess of $500,000.
4.3 DUTIES AND OBLIGATIONS OF THE MANAGER
(a) The Manager shall cause the Company to conduct its business
and operations separate and apart from that of any Member or Manager or their
Affiliates, including without limitation, (i) segregating the Company's Assets
and not allowing funds or other Assets of the Company to be commingled with the
funds or other assets of, held by, or registered in the name of, any Member or
Manager or their Affiliates, (ii) maintaining books and financial records of the
Company separate from the books and financial records of any Member or Manager
or their Affiliates, and observing all Company procedures and formalities,
including, without limitation, maintaining minutes of Company meetings and
acting on behalf of the Company only pursuant to due authorization of the
Members, (iii) causing the Company to pay its liabilities from the Assets of the
Company, and (iv) causing the Company to conduct its dealings with third parties
in its own name and as a separate and independent entity.
(b) The Manager shall take all actions which may be necessary or
appropriate (i) for the continuation of the Company's valid existence as a
limited liability company under the laws of the State of Delaware and of each
other jurisdiction in which such existence is necessary to protect the limited
liability of the Members or to enable the Company to conduct the business in
which it is engaged and (ii) for the accomplishment of the Company's purposes in
accordance with the provisions of this Agreement and applicable laws and
regulations.
4.4 LIQUIDATING COMMITTEE
(a) The Liquidating Committee shall be comprised of two members of
the Committee who are receiving Membership Interests pursuant to the Plan and
who are designated by the Committee. The initial members of the Liquidating
Committee shall be identified at or prior to the Confirmation Hearing.
(b) The Liquidating Committee may hire Schulte, Roth & Zabel LLP
or such other attorneys as may be acceptable to the Trustee, which consent shall
not be unreasonably withheld.
(c) The Liquidating Committee shall have the right to monitor the
administration of the Company and to provide input to the Manager on all issues
relating to the administration of the Company.
(d) The Liquidating Committee and its attorneys shall be entitled
to review the Company's books and records at such times and at such places as
the Manager may reasonably determine.
12
(e) The Liquidating Committee may in its discretion adopt by-laws.
(f) In exchange for their services, each member of the Liquidating
Committee shall be entitled to compensation paid by the Company equal to
$1,000.00 for each meeting of the Liquidation Committee attended by such member,
up to four meetings in any 12 month period. Attendance at more than four
meetings of the Liquidation Committee in any 12 month period shall not entitle
any member of the Liquidation Committee to any further compensation from the
Company.
(g) Members of the Liquidating Committee may withdraw from the
Liquidation Committee at any time by serving written notice upon the Manager and
the Liquidating Committee. Upon the resignation of a member of the Liquidation
Committee, the Committee may designate a replacement to serve on the Liquidation
Committee by delivering to the Manager a written notice to such effect. If the
Manager does not deliver to the Committee a written notice of objection to such
designee within 30 days of receipt of notice of such proposed member, such
person shall become a member of the Liquidating Committee. No person shall be
designated a member of the Liquidating Committee over the objection of the
Manager, who may reject any designee in his reasonable discretion.
4.5 INDEMNIFICATION OF THE MANAGER, LIQUIDATING COMMITTEE
(a) Unless otherwise provided in Section 4.5(d) hereof, the
Company shall indemnify, defend, hold harmless, and pay all judgments, demands
and claims whatsoever against the Manager, the Liquidating Committee or any
member thereof, relating to any liability or damage of any kind incurred by
reason of any act performed or omitted to be performed in connection with the
business or affairs of the Company or such person's status as the Manager or a
member of the Liquidating Committee, including reasonable attorneys' fees
incurred by the Manager, the Liquidating Committee or any member thereof in
connection with the defense of any such action, which attorneys' fees may, at
the Manager's discretion, be paid as incurred.
(b) Unless otherwise provided in Section 4.5(d) hereof, in the
event of any action by a Member against the Manager or any member of the
Liquidating Committee, including a Company derivative suit, the Company shall
indemnify, defend, hold harmless, and pay all expenses of the Manager, the
Liquidating Committee or any member thereof, including reasonable attorneys'
fees incurred in the defense of such action, which attorneys' fees may, at the
Manager's discretion, be paid as incurred.
(c) Unless otherwise provided in Section 4.5(d) hereof, the
Company shall indemnify, defend, hold harmless, and pay all expenses, costs, or
liabilities whatsoever of the Manager if, for the benefit of the Company and in
accordance with this Agreement, the Manager makes any deposit or makes any other
similar payment or assumes any obligation in connection with any property
proposed to be acquired by the Company and suffers any financial loss or other
loss of any kind as a result thereof.
(d) Notwithstanding Sections 4.5(a)-(c) above, indemnification
rights provided by this Section 4.5 shall be enforced only to the maximum extent
permitted by law and the Manager, Liquidating Committee or member(s) thereof, as
applicable, shall not be indemnified from any liability based solely upon their
fraud or intentional misconduct.
(e) Without limiting whatever powers may be granted to the Manager
under this Agreement, the Manager is expressly authorized (but not required) to
obtain, at the expense of the Company, insurance coverage for any of the Manager
and the members of the Liquidating Committee for any liabilities or claims which
may be the subject of indemnification under this Section 4.5 if, in the
13
Manager's sole discretion, it is in the interest of the Company, Manager or the
members of the Liquidating Committee to do so.
(f) The obligations of the Company set forth in this Section 4.5
are intended to create third party beneficiary rights for the Manager, the
Liquidating Committee and the members thereof.
V.
RESERVES
5.1 EXPENSE RESERVE
(a) The Manager shall establish, administer and maintain the
Expense Reserve in accordance with Section 7.11 of the Plan. On the Effective
Date, the Manager shall deposit cash or cash-equivalents in the Expense Reserve
in an amount determined by the Manager to be a sufficient reserve for the fees
and costs associated with the administration of the Company. Thereafter, from
time to time at his discretion, the Manager may increase (out of Assets of the
Company) or decrease the amount of cash held in the Expense Reserve so as to
maintain a sufficient reserve, as determined by the Manager, for the fees and
costs associated with the administration of the Company. In the event the
Manager determines to decrease the amount held in the Expense Reserve, the
proceeds may be treated in any manner permitted under this Agreement or the
Plan.
(b) When all requests for the payment of fees or costs of
administration of the Company have been paid in full, disallowed or withdrawn,
the Manager shall transfer all remaining assets in the Expense Reserve to the
Company, for treatment in accordance with the Plan and this Agreement.
5.2 DISPUTED CLAIMS RESERVE
(a) The Manager shall establish, administer and maintain the
Disputed Claims Reserve in accordance with Section 7.10 of the Plan. The Manager
shall set aside and segregate, pursuant to the Plan, for the benefit of holders
of Disputed Claims against any Fund Debtor, the property deposited in the
Disputed Claims Reserve, including but not limited to any cash distributions and
any Membership Interests (including any cash distributable on account thereof)
deposited in the Disputed Claims Reserve pursuant to the terms of the Plan.
(b) Payments and distributions from the Disputed Claims Reserve to
each holder of a Disputed Claim against a Fund Debtor, to the extent that such
Claim ultimately becomes an Allowed Claim, will be made in accordance with
provisions of the Plan that govern distributions to holders of Allowed Claims in
such Classes. Such distributions shall be made on the date each Disputed Claim
becomes an Allowed Claim or as soon thereafter as practicable. Such
distributions shall be based upon the cumulative distributions that would have
been made to the holder of such Claim if the Disputed Claim had been an Allowed
Claim as of the Effective Date and shall not be limited by the amounts reserved
with respect to such Disputed Claim to the extent that additional amounts are
available therefor, but only to the extent that such additional amounts have not
yet been distributed to holders of Allowed Claims. Such distributions shall be
decreased by any taxes paid or payable on such portion of the Disputed Claims
Reserve. Upon such distribution, or the disallowance or withdrawal of a Disputed
Claim, the Disputed Claims Reserve shall be reduced by an amount equal to the
amount reserved with respect thereto. No interest shall be payable on account of
funds reserved in respect of Disputed Claims.
(c) The Manager will add to the Disputed Claims Reserve any
dividends, payments or other distributions made on account of, as well as any
obligations arising from, the property held in the
14
Disputed Claims Reserve, to the extent that such property continues to be held
in the Disputed Claims Reserve at the time such dividends, payments or
distributions are made or such obligations arise.
(d) To the extent a Disputed Claim against a Fund Debtor is
disallowed, the amount reserved for such Claim in the Disputed Claims Reserve
(including, if applicable, any Membership Interests), net of any taxes paid or
payable on such portion of the Disputed Claims Reserve, will be reallocated to
holders of Allowed Claims in such Class and Disputed Claims in such Class on a
Pro Rata basis. Amounts reallocated to Disputed Claims in this manner will be
deposited in the Disputed Claims Reserve for the account of such holders, and
amounts reallocated to Allowed Claims will be held for the account of such
holders.
(e) In the event, and to the extent, the Disputed Claims Reserve
has insufficient funds to pay taxes attributable to the Membership Interests
therein, the funds required to pay such taxes shall be advanced by the Company
from the Expense Reserve and the Disputed Claims Reserve shall reimburse the
Expense Reserve from future distributions to or for the benefit of the Disputed
Claims Reserve.
(f) When all Disputed Claims against the Fund Debtors have been
allowed and paid, disallowed, or withdrawn, the Manager shall withdraw all
remaining assets from the Disputed Claims Reserve and return such assets to the
Company, for treatment in accordance with the Plan.
5.3 UNCLAIMED DISTRIBUTIONS RESERVE
(a) The Manager shall establish and thereafter administer in the
manner set forth in the Plan the Unclaimed Distributions Reserve. If a
distribution made pursuant to the Plan is returned as unclaimed or
undeliverable, the distribution shall be held in the Unclaimed Distributions
Reserve. The Manager shall make reasonable efforts to determine the then-current
address of such holder, and no further distributions shall be made to such
holder unless and until the Manager determines or is notified of such holder's
current address, at which time all missed distributions shall be made, without
interest; provided, however, that such distributions shall be deemed to be
unclaimed property under section 347(b) of the Bankruptcy Code if not claimed by
the first (1st) anniversary after the distribution was initially attempted,
notwithstanding any federal or state escheat laws to the contrary. After such
anniversary date, (i) all rights to cash, Membership Interests or other
distributions shall be forfeited and such cash, Membership Interests, or other
property shall be revested in the Company and the claim of such holder to such
cash, Membership Interests or other distribution pursuant to the Plan shall be
discharged and forever barred and (b) all rights to such distributions shall be
forfeited and any Membership Interests to be so distributed shall be cancelled
and shall no longer be deemed outstanding and the claim of such holder to such
distributions, including but not limited to any distribution of Membership
Interests, shall be discharged and forever barred.
(b) If the holder of a Claim to whom an unclaimed or undeliverable
distribution was payable makes a claim to the Manager within the one-year period
specified in Section 5.3(a) hereof, the Manager shall promptly pay the holder
from the Unclaimed Distributions Reserve upon presentation by the holder of
proof reasonably satisfactory to the Manager of its entitlement thereto..
5.4 INVESTMENT OF RESERVES
The Manager may at his discretion hold cash in the Expense Reserve,
Disputed Claims Reserve or Expense Reserve in the form of cash, money market
funds, treasury bills or other cash equivalents.
15
VI.
DISTRIBUTIONS
6.1 ALLOCATION OF DISTRIBUTIONS
(a) Except as otherwise provided in this Section 6.1, the Manager
shall make interim and final distributions to the Members of the Company in
accordance with Article IX of the Plan.
(b) Upon the liquidation of the Company, liquidation proceeds, if
any, shall be distributed pro rata in proportion to the positive balance in the
Members' Capital Accounts after giving effect to all allocations to the Members
under Sections 8.2 and 8.3 (and the allocation of deemed gain or loss pursuant
to the provisions of Section 3.3(b)), so that liquidation proceeds shall be
distributed in accordance with each Member's positive capital account balance
within the meaning of Treasury Regulation Section 1.704-1(b)(2)(ii)(b).
(c) All amounts withheld pursuant to the Internal Revenue Code or
any provision of any state, local or foreign tax law with respect to any
payment, distribution or allocation to the Company or the Members shall be
treated as amounts paid or distributed, as the case may be, to the Members with
respect to which such amount was withheld pursuant to this Section 6.1 for all
purposes under this Agreement. The Company is authorized to withhold from
payments and distributions, or with respect to allocations to the Members, and
to pay over to any federal, state and local government or any foreign
government, any amounts required to be so withheld pursuant to the Internal
Revenue Code or any provisions of any other federal, state or local law or any
foreign law, and shall allocate any such amounts to the Members with respect to
which such amount was withheld.
6.2 LIMITATIONS ON DISTRIBUTIONS
The Company shall make no distributions except as provided in this
Agreement or the Plan. No Member shall be entitled to receive any distribution
made by the Company with respect to any Membership Interest after the date of
resignation of such Member from the Company or the effective date of the
transfer of such Membership Interest as provided in Section 11.1 hereof.
VII.
ROLE OF MEMBERS
7.1 NO MEMBER VOTING RIGHTS
No Member shall have the right to vote. All decision-making authority
with respect to the Company shall be vested in the Manager, unless expressly
provided otherwise herein.
7.2 MEMBER LIABILITY
No Member shall be liable under a judgment, decree or order of a court,
or in any other manner for the Debts or any other obligations or liabilities of
the Company.
7.3 TRANSACTIONS BETWEEN A MEMBER AND THE COMPANY
Except as otherwise provided by applicable law, any Member may, but
shall not be obligated to, lend money to the Company, act as surety for the
Company and transact other business with the Company, and has the same rights
and obligations when transacting business with the Company as a person or entity
who is not a Member. A Member, any Affiliate thereof or an employee,
stockholder,
16
agent, director or officer of a Member or any Affiliate thereof, may also be an
employee or be retained as an agent of the Company. The existence of these
relationships will not result in the Member being deemed to be participating in
the control of the business or otherwise affect the Member's limited liability.
Each Member expressly acknowledges and agrees that the Company may engage in
transactions with affiliates of the Company, the Manager or any Member,
including but not limited to any person or entity described in the Plan, without
any showing or determination that such transactions are fair to the Company,
provided that the Manager determines that such transactions are in the best
interests of either the Company or the Members or are otherwise consistent with
the Plan.
7.4 OTHER INSTRUMENTS
Each Member hereby agrees to execute and deliver to the Company within
fifteen (15) Business Days after receipt of a written request therefor, such
other and further documents and instruments, statements of interest and
holdings, designations, powers of attorney and other instruments and to take
such other action as the Manager deems necessary, useful or appropriate to
comply with any laws, rules or regulations as may be necessary to enable the
Company to fulfill its responsibilities hereunder.
VIII.
ACCOUNTING, BOOKS AND RECORDS
8.1 ACCOUNTING, BOOKS AND RECORDS
(a) The Manager shall maintain separate books of account for the
Company, which shall show a true and accurate record of all costs and expenses
incurred, all charges made, all credits made and received, and all income
derived in connection with the conduct of the Company and the operation of the
business in accordance with this Agreement. The Manager shall provide the
Liquidating Committee with reasonable access to such books and records in
accordance with Section 4.4(d) hereof. The Manager shall cause the Company to
prepare and deliver to each Member a report containing unaudited financial
information (including a statement of assets, sources and uses of cash, expenses
and distributions made to Members) within 90 days following the end of each
calendar year, and upon dissolution and winding up of the Company, in such form
and containing such substantive information as the Manager is required to submit
to the District Court. At the discretion of the Manager, the Company may also
prepare and distribute to Members such interim reports and information as the
Manager in its sole discretion deems appropriate. The Manager is expressly
authorized, on behalf of the Company, to file any such reports with the SEC
under cover of either Form 10-K or Form 8-K (but shall not be deemed to have
been filed pursuant to Section 13 of the Exchange Act).
(b) The Manager shall in his discretion, in consultation with the
Company's advisors if he so chooses, select a method of accounting for
preparation of the Company's financial reports and for tax purposes and shall
keep the Company's books and records accordingly.
8.2 TAX ALLOCATIONS
Except as provided in Section 8.3, for federal income tax purposes,
holders of Membership Interests shall be allocated Net Profits, Net Losses and
credits of the Company in a manner, to be determined by the Manager, that is
consistent with applicable Treasury Regulations and that reflects such holders'
respective interests in the interim and final distributions to be made by the
Company. These respective interests may shift from time to time as the result of
the withdrawal or disallowance of Disputed Claims or the forfeiture of unclaimed
distributions. Each holder of a Membership Interest in a Liquidating LLC is
hereby required and agrees to take into account such holder's allocable share of
the
17
income, gain, loss, deduction or credit of the Company in determining the
holder's taxable income for federal income tax purposes.
Except as otherwise required by the first sentence of this Section 8.2
and Section 8.3, items of income, gain, credit, loss or deduction of the Company
attributable to the proceeds deposited in the Expense Reserve under the Plan
will be allocated for income tax purposes on a Pro Rata basis to the Members who
were holders of Allowed Claims or Disputed Claims in Class SLC-4, CFC-4 or IBF
Hotel-4; provided, however, that where payments funded by the Expense Reserve
increase the basis of an asset for income tax purposes (and do not result in an
item of loss or deduction), then items of income, gain, loss, deduction or
credit shall be allocated following the recovery of an amount of such basis
increase so that, as quickly as possible, and to the maximum extent possible,
the net amount of taxable income (i.e., the aggregate amount of income and gains
minus the aggregate amount of loss and deductions) allocated is no greater than
would have been the case if the amount of basis increase so recovered had
instead been an item of loss or deduction.
8.3 SPECIAL ALLOCATIONS
Notwithstanding anything in this Agreement to the contrary:
(a) No Member shall be allocated any item of loss or deduction to
the extent said allocation will cause or increase any deficit in said Member's
Adjusted Capital Account. If any Member with a deficit in its Adjusted Capital
Account unexpectedly receives any adjustment, allocation or distribution
described in Treasury Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6),
then Company items of income and gain shall be specially allocated to such
Member in an amount and manner sufficient to eliminate the deficit in said
Member's Adjusted Capital Account created by such adjustment, allocation or
distribution as quickly as possible. The Members intend that the provisions set
forth in this clause (a) will constitute a "Qualified Income Offset" as
described in Treasury Regulations Section 1.704-1(b)(2)(ii)(d).
(b) All nonrecourse deductions (as defined in Treasury Regulations
Section 1.704-2(b)(1)) shall be charged to the Capital Accounts of the Members
in proportion to their respective shares of Net Profits and Net Losses under
Section 8.2.
(c) If in any Fiscal Year of the Company there is a net decrease
in Minimum Gain (as determined in accordance with Treasury Regulation Sections
1.704-2(d)(1)), then each Member with a share of Minimum Gain (as determined in
accordance with Treasury Regulations Section 1.704-2(g)(1)) as of the beginning
of such year shall be allocated items of income and gain for such year (and, if
necessary, for succeeding years), equal to that Member's share of the net
decrease in Minimum Gain (determined in accordance with Treasury Regulations
Section 1.704-2(g)(2)). In allocating the income and gain pursuant to the
previous sentence, gains recognized from the disposition of Company assets
subject to nonrecourse liabilities of the Company shall be allocated first to
the extent of the decrease in Minimum Gain attributable to the disposition of
said asset. Thereafter, any income and gain to be allocated shall consist of a
pro rata amount of other Company income and gain for that year. The Members
intend that this clause (c) will constitute a "Minimum Gain Chargeback" as set
forth in Treasury Regulations Section 1.704-2(f).
(d) If any Member bears the "economic risk of loss" (within the
meaning of Treasury Regulations Section 1.752-2) with respect to any nonrecourse
loan of the Company, then (i) the losses, deductions or Section 705(a)(2)(B)
expenditures that are attributable to such nonrecourse loan for any fiscal year
or other period shall be allocated to the Members who bear the burden of such
economic risk of loss in accordance with Treasury Regulations Section
1.704-2(i), and (ii) if in any taxable year there is a net decrease in Member
Nonrecourse Debt Minimum Gain (as determined in accordance with Treasury
18
Regulations Section 1.704-2(i)(4)) attributable to such nonrecourse loan, each
Member with a share of Member Nonrecourse Debt Minimum Gain (as defined in
Treasury Regulations Section 1.704-2(i)(2)) attributable to such nonrecourse
loan (as determined in accordance with Treasury Regulations Section
1.704-2(i)(5)) as of the beginning of the year shall be allocated items of
income and gain for the year (and, if necessary, for succeeding years), equal to
that Member's share of the net decrease in the Member Nonrecourse Debt Minimum
Gain (as determined in accordance with Treasury Regulations Section
1.704-2(i)(4)).
(e) The provisions of Section 8.3 above (collectively, the
"Regulatory Provisions") are intended to comply with certain requirements of the
Treasury Regulations. It is the intent of the Members that, to the extent
possible, all allocations pursuant to the Regulatory Provisions shall be offset
either with other allocations pursuant to the Regulatory Provisions or, if
necessary, with curative allocations of other items of income, gain, loss or
deduction pursuant to this Section 8.3(e). Therefore, notwithstanding any other
provision of this Agreement, other than the Regulatory Provisions, allocations
pursuant to the Regulatory Provisions shall be taken into account in allocating
other items of income, gain, expense or loss among the Members so that, to the
extent possible, the net amount of such allocations of other items and the
allocations pursuant to the Regulatory Provisions to each member are equal to
the net amount that would have been allocated to such Member if the Regulatory
Provisions were not part of this Agreement. In applying this Section 8.3(e),
there shall be taken into account (a) future allocations under Section 8.3(c)
that, although not yet made, are likely to offset other allocations previously
made under Section 8.3(b), and (b) future allocations under Section 8.3(d)(ii)
that, although not yet made, are likely to offset other allocations previously
made under Section 8.3(d)(i).
(f) Notwithstanding any other provision in this Section 8, in
accordance with Internal Revenue Code Section 704(c) and the Treasury
Regulations promulgated thereunder, income, gain, loss and deduction with
respect to any property contributed to the capital of the Company shall, solely
for tax purposes, be allocated among the Members so as to take account of any
variation between the adjusted basis of such property to the Company for federal
income tax purposes and its Gross Asset Value on the date of contribution.
If, under Treasury Regulations Section 1.704-1(b)(2)(iv)(f), Company
property that has been revalued is properly reflected in the Capital Accounts
and on the books of the Company at a Gross Asset Value that differs from the
adjusted tax basis of such property, then depreciation, depletion, amortization
and gain or loss with respect to such property shall be shared among the Members
in a manner that takes account of the variation between the adjusted tax basis
of such property and its Gross Asset Value in the same manner as variations
between the adjusted tax basis and Gross Asset Value of property contributed to
the Company are taken into account (as provided in the preceding paragraph) in
determining the Members' shares of tax items under Section 704(c) of the
Internal Revenue Code.
Allocations pursuant to this Section 8.3(f) are solely for purposes of
federal, state and local taxes. As such, they shall not affect or in any way be
taken into account in computing a Member's Capital Account or share of profits,
losses or other items or distributions pursuant to any provision of this
Agreement.
(g) Except as may otherwise be provided herein, whenever a
proportionate part of Net Profits or Net Losses of the Company is credited or
charged to a Member's Capital Account for any Fiscal Year, every item of income
gain, loss, or deduction entering into the computation thereof shall be
considered either credited or charged, as the case may be, and every item of
credit or tax preference related thereto and applicable to such Fiscal Year
shall be allocated, to such Capital Account in the same proportion. Upon any
change in the relative interests of the Members in the Company, whether by
reason of the admission or withdrawal of a Member, the transfer by any Member of
all or any part of its interest, or
19
otherwise, the Members' shares of all Company items shall be determined by
reference to any method acceptable under the Treasury Regulations under Section
706 of the Internal Revenue Code, as determined by the Manager.
8.4 TAX REPORTING
(a) For all federal income tax purposes, all parties (including,
without limitation, the Fund Debtors, the Trustee, the Manager, and the Members)
agree to follow the treatment set forth in Section 7.13 of the Plan in
characterizing the transfer of assets to the Company or the Disputed Claims
Reserve in accordance with the terms of the Plan. Neither the Company nor the
Disputed Claims Reserve shall be deemed to be the same legal entity as the Fund
Debtors, but only the assignee of their respective assets.
(b) On or before December 31, 2003, the Manager shall, in
consultation with the Company's advisors if he so chooses, determine the value
of the Assets transferred to the Company by the Fund Debtors pursuant to the
Plan. Such determination of value shall be conclusive absent manifest error. All
parties (including without limitation the Fund Debtors, the Trustee, the Manager
and the holders of Claims) shall use this valuation for all federal income tax
purposes.
(c) The Company shall endeavor to be treated as a partnership for
federal tax purposes and, to the extent permitted under applicable law, for
state and local income tax purposes. The Manager shall be responsible for filing
informational returns on behalf of the Company and distributing information
statements to the holders of the Membership Interests in the Company, setting
forth, inter alia, each Member's allocable share of the income, gain, loss,
deduction or credit of the Company.
(d) Necessary tax information shall be delivered to each Member as
soon as practicable after the end of each fiscal year of the Company.
(e) Subject to definitive guidance from the Internal Revenue
Service or a court of competent jurisdiction to the contrary (including the
receipt by the Manager of a private letter ruling if the Manager requests one,
or receipt of an adverse determination on audit if not contested by the
Manager), the Manager shall (A) treat the Disputed Claims Reserve as a discrete
trust for federal income tax purposes, consisting of separate and independent
shares to be established in respect of each Disputed Claim in accordance with
the trust provisions of the Internal Revenue Code Section 641 et seq.; (B) to
the extent permitted by applicable law, report consistently with the foregoing
for state and local income tax purposes; (C) prepare and file tax returns for
the Disputed Claims Reserve; and (D) pay any amounts of tax attributable to the
Disputed Claims Reserve from amounts held in such reserve. All holders of
Allowed Claims and Disputed Claims shall report, for tax purposes, consistently
with the foregoing.
(f) The Manager shall file any other statements, returns or
disclosures relating to the Company that are required by any governmental unit
or applicable law.
(g) The Manager is authorized to request an expedited
determination under section 505(b) of the Bankruptcy Code for all tax returns
filed for or on behalf of the Fund Debtors or the Company for all taxable
periods through the termination of the Company.
(h) The Disputed Claims Reserve shall be the "tax matters partner"
for purposes of the Internal Revenue Code.
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IX.
AMENDMENTS
9.1 AMENDMENTS
(a) Amendments to this Agreement may be proposed by the Manager or
the Liquidating Committee. Except as provided in Section 9.1(b) hereof, a
proposed amendment shall be adopted if it receives unanimous approval by the
members of the Liquidating Committee and the Manager.
(b) Notwithstanding anything to the contrary in Section 9.1(a)
hereof, the Manager may amend this Agreement without the consent or approval of
the Liquidating Committee:
(i) to preserve the legal status of the Company as a
limited liability company under the Act or applicable state or federal
laws, if such amendment does not materially adversely affect the
interests of the Members; or
(ii) to satisfy the requirements of the Internal Revenue
Code and regulations thereunder with respect to limited liability
companies and of any federal or state securities laws or regulations,
provided, however, that the Manager may make such an amendment only if
it will not have a materially adverse affect on the interests of the
Members.
9.2 LIMITATION ON AMENDMENTS
Notwithstanding anything to the contrary herein, this Agreement shall
not be amended without the consent of each Member adversely affected if such
amendment would modify the Members' limited liability or the manner of
determining and allocating profits and losses of the Company.
X.
ADDITIONAL MEMBERS
10.1 GENERAL PROHIBITION
Except as provided in Sections 3.1, 5.2, 10.2 or 11.1 hereof, no
additional Members may be admitted to the Company.
10.2 COMPROMISES WITH HOLDERS OF SECURITIES ISSUED BY AIH
Section 7.7 of the Plan provides that the Trustee may settle or
compromise, with any holder of securities issued by AIH, such holder's claims
against or interests in AIH. The Trustee may, as part of any such compromise or
settlement, offer to treat such holder as the holder of an Allowed Claim in
Class SLC-4 or CFC-4, in which event the Company shall issue, and such holder
shall receive, Membership Interests in an amount to be determined by the Trustee
and such holder shall become a Member of the Company and subject to all of the
provisions of this Agreement, provided that such amount shall not exceed such
holder's Pro Rata share, as determined by reference to Allowed Claims and
Disputed Claims in SLC-4, CFC-4 and IBF Hotel-4. The Manager shall revise
Exhibit B to reflect the admission of any Member pursuant to this Section 10.2.
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XI.
TRANSFERS
11.1 RESTRICTIONS ON TRANSFERS
Upon issuance thereof, Membership Interests in the Company will be
non-transferable, except with respect to the following transfers: (a)
distributions of Membership Interests in the Company from the Disputed Claims
Reserve; (b) transfers under the laws of descent or intestate succession,
including transfers from an estate or testamentary trust; and (c) transfers by
operation of law or by order of a court of competent jurisdiction. In the case
of transfers described in (b) and (c), the transferor shall provide the Manager
with written notice thirty (30) days prior to the proposed transfer, including
all pertinent facts and, if applicable, documents relating to the transfer. The
Manager shall approve or disapprove the transfer and impose any conditions with
respect to the transfer that the Manager deems necessary or advisable in its
sole discretion. The Manager may require from the Transferor or counsel to the
Company (at his option) an opinion, in form and substance satisfactory to the
Manager, that the transfer will not cause the Company to be taxable as a
corporation for federal income tax purposes. The Manager may require the
transferor to reimburse the Company for any expenses incurred in connection with
the proposed transfer, whether or not approved. The Manager shall determine in
his sole discretion and record on the books and records of the Company the
effective date of any transfer pursuant to this Section 11.1 Any transfer not
approved pursuant to the procedures in this Section 11.1 shall be null and void.
Any transfer so approved shall be a "Permitted Transfer." Upon a Permitted
Transfer, the transferee shall be admitted as a Member of the Company, shall
succeed to the transferring Member's Membership Interest, and the Manager shall
record on the books and records of the Company and on Exhibit B such transfer
and new Member.
Notwithstanding any other provision of this Agreement, no sale, transfer,
exchange or other disposition of any Membership Interest may be made except in
compliance with all applicable federal and state securities laws and the rules
and regulations of each governmental authority having jurisdiction over such
disposition.
11.2 PROHIBITED TRANSFERS
Any purported transfer of Membership Interests that is not a Permitted
Transfer under this Agreement shall be null and void and of no force or effect
whatever; provided, however, that if the Company is required to recognize a
transfer that is not a Permitted Transfer, or if the Manager, at his discretion,
elects to recognize a transfer that is not a Permitted Transfer, the Membership
Interests so transferred shall be strictly limited to the transferor's rights to
allocations and distributions as provided by this Agreement with respect to the
transferred Membership Interests, which allocations and distributions may be
applied (without limiting any other legal or equitable rights of the Company) to
satisfy any debts, obligations, or liabilities for damages that the transferor
or transferee may have to the Company.
In the case of a transfer or attempted transfer of Membership Interests
that is not a Permitted Transfer, the parties engaging or attempting to engage
in such transfer shall be liable to indemnify and hold harmless the Company, the
Manager and the other Members from all costs, liabilities, and damages that the
Company and any other Members may incur (including without limitation
incremental tax liabilities)as a result of such transfer or attempted transfer
and efforts to enforce the indemnity granted hereby.
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XII.
DISSOLUTION AND WINDING UP
12.1 DISSOLUTION EVENTS
The Manager shall terminate the Company and make final distributions
pursuant to the Plan when, in the exercise of his business judgment, the Manager
determines that (i) all Assets of the Company have been liquidated, all Causes
of Action have been litigated to Final Order, settled, withdrawn or otherwise
resolved, and there are no potential sources of additional cash for
distribution; (ii) there remain no Disputed Claims against any Fund Debtor;
(iii) all debts and other obligations of the Company have been paid or otherwise
provided for; and (iv) the Manager is in a position to make final distribution
in accordance with applicable law; provided, however, that, absent approval of
the District Court on appropriate application, the Manager shall terminate the
Company and make final distributions no later than five (5) years after the
Effective Date or as soon thereafter as the Manager is in a position to make
final distributions in accordance with applicable law (each a "Dissolution
Event"). The date on which the final distributions are made is referred to as
the "Termination Date."
12.2 WINDING UP
Upon the occurrence of (i) a Dissolution Event or (ii) the
determination by a court of competent jurisdiction that the Company has
dissolved prior to the occurrence of a Dissolution Event, the Company shall
continue solely for the purposes of winding up its affairs in an orderly manner.
After making final distributions, the Manager shall proceed as promptly as
possible to wind up the affairs of the Company. Upon its dissolution, the
Company will file its final tax return, and arrange for storage of its records
for a period of not less than three (3) years from the filing of its final tax
return. Upon completion of such process, the Manager shall file a final report
of distributions stating that the Company has been dissolved, whereupon the
Manager shall be discharged from any further responsibility under the Agreement.
XIII.
POWER OF ATTORNEY
13.1 MANAGER AS ATTORNEY-IN-FACT
Each Member, by accepting Membership Interests in the Company, hereby
makes, constitutes, and appoints the Manager (and in the event of more than one
Manager, each Manager, severally) with full power of substitution and
resubstitution, his true and lawful attorney-in-fact for him and in his name,
place, and stead and for his use and benefit, to sign, execute, certify,
acknowledge, swear to, file, publish and record (i) all certificates of
formation or other certificates and instruments (including counterparts of this
Agreement) which the Manager may deem necessary to be filed by the Company under
the laws of the State of Delaware or any other jurisdiction in which the Company
is doing or intends to do business; (ii) any and all amendments, restatements or
changes to this Agreement and the instruments described in clause (i), as now or
hereafter amended, which the Manager may deem necessary to effect a change or
modification of the Company in accordance with the terms of this Agreement,
including, without limitation, amendments, restatements or changes to reflect
(A) any amendments adopted in accordance with the terms of this Agreement, (B)
the admission of any substituted Member and (C) the disposition by a Member of
any Membership Interests; (iii) all certificates of cancellation and other
instruments which the Manager deems necessary or appropriate to effect the
dissolution and termination of the Company pursuant to the terms of this
Agreement and (iv) any other instrument which is now or may hereafter be
required by law to be filed on behalf of the Company or is deemed necessary by
the Manager to carry out fully the provisions of this Agreement in accordance
with its terms. Each Member authorizes each such attorney-in-fact to take any
further action which such attorney-in-fact shall consider necessary in
23
connection with any of the foregoing, hereby giving each such attorney-in-fact
full power and authority to do and perform each and every act or thing
whatsoever requisite to be done in connection with the foregoing as fully as
such Member might or could do personally, and hereby ratifies and confirms all
that any such attorney-in-fact shall lawfully do, or cause to be done, by virtue
thereof or hereof.
13.2 NATURE OF SPECIAL POWER
The power of attorney granted to the Manager pursuant to this Section
13:
(a) is a special power of attorney coupled with an interest and is
irrevocable; and
(b) shall survive and not be affected by the subsequent
bankruptcy, insolvency, dissolution, or cessation of existence of a Member and
shall survive the delivery of an assignment by a Member of the whole or a
portion of his interest in the Company (except that where the assignment is of
such Member's entire interest in the Company and the assignee, with the consent
of the other Members, is admitted as a substituted Member, the power of attorney
shall survive the delivery of such assignment for the sole purpose of enabling
any such attorney-in-fact to effect such substitution) and shall extend to such
Member's, or assignee's, successors and assigns.
XIV.
MISCELLANEOUS
14.1 PRESERVATION OF DEBTOR INTERCOMPANY CLAIMS
In accordance with section 1123(b)(3) of the Bankruptcy Code and except
as expressly provided in the Plan, the Company shall take assignment of all
Debtor Intercompany Claims. The Manager shall, in the exercise of his business
judgment, determine whether to pursue such Debtor Intercompany Claims in
accordance with the best interests of the Members of the Company.
14.2 NOTICES
All notices or other communications required or permitted to be given
pursuant to this Agreement shall be in writing and shall be considered as
properly given or made if mailed by U.S. Mail, first-class, postage prepaid, to
the Manager on behalf of the Company at Kaye Scholer LLP, 425 Park Avenue, New
York, New York 10022, Attn: Arthur J. Steinberg, Trustee, and to the address of
each Member as reflected on the Company's books and records. Any such notice
shall be deemed received by the Manager or Member three (3) days after the
notice is postmarked. Any Member may change his address by giving notice, in
writing, stating his new address to the Company, and the Manager may change his
address by giving such notice to all Members and the Company.
14.3 BINDING EFFECT
Except as otherwise provided in this Agreement, every covenant, term,
and provision of this Agreement shall be binding upon and inure to the benefit
of the Members and their respective successors, transferees, and assigns.
14.4 CONSTRUCTION
Every covenant, term, and provision of this Agreement shall be
construed according to its fair meaning and not strictly for or against any
Member.
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14.5 HEADINGS
Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define, or
limit the scope, extent, or intent of this Agreement or any provision hereof.
14.6 SEVERABILITY
Except as otherwise provided in the succeeding sentence, every
provision of this Agreement is intended to be severable, and, if any term or
provision of this Agreement is illegal or invalid for any reason whatsoever,
such illegality or invalidity shall not affect the validity or legality of the
remainder of this Agreement. The preceding sentence of this Section 14.6 shall
be of no force or effect if the consequence of enforcing the remainder of this
Agreement without such illegal or invalid term or provision would be to cause
any Member to lose the material benefit of his economic bargain.
14.7 INCORPORATION BY REFERENCE
Every exhibit, schedule, and other appendix attached to this Agreement
and referred to herein is incorporated in this Agreement by reference unless
this Agreement expressly otherwise provides. This Agreement, including the Plan
which has been incorporated herein by reference, contains the entire agreement
among the parties.
14.8 GOVERNING LAW
The laws of the State of Delaware shall govern the validity of this
Agreement, the construction of its terms, and the interpretation of the rights
and duties arising hereunder without giving effect to principles of conflict of
laws.
14.9 COUNTERPART EXECUTION
This Agreement may be executed in any number of counterparts with the
same effect as if all of the Members had signed the same document. All
counterparts shall be construed together and shall constitute one agreement.
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IN WITNESS WHEREOF, the parties have executed and entered into
this Agreement as of the date first written above.
Arthur J. Steinberg, in his capacity as
Investment Company Act Trustee of IBF
VI-Secured Lending Corporation and IBF
Collateralized Finance Corporation,
Debtors and Debtors in Possession, and
as Manager of the Company
/s/ Arthur J. Steinberg
----------------------------------------
IBF Premier Hotel Group, Inc.,
Debtor and Debtor in Possession
By: /s/ Brendan T. Sullivan
------------------------
Name: Brendan T. Sullivan
Title: President
26
EXHIBIT A
JOINT LIQUIDATING PLAN
OF REORGANIZATION