EBS Building, LLC Exhibit 10.40 to Form 10-QSB










Exhibit 10.40





[FTI CONSULTING LETTERHEAD]





PRIVATE & CONFIDENTIAL 



April 15, 2005 



EBS Liquidating Trust

c/o FTI Consulting

Keith F. Cooper

1201 W. Peachtree St., Suite 500

One Atlantic Center

Atlanta, GA 30309 



Re:    EBS Liquidating Trust 



Dear Mr. Cooper: 



	1. 	
Introduction 







	  	
This
letter confirms that we, FTI Consulting, Inc. (“FTI”), have been retained by
you, EBS Liquidating Trust (the “Company”), to provide certain financial
advisory and consulting services (the “Services”) set out below. This letter of
engagement (the “Engagement”) and the related Standard Terms and Conditions
constitute the engagement contract (the “Engagement Contract”) pursuant to which
the Services will be provided. 







	2. 	
Scope of Services 







	  	
The
Services, to be performed at your direction, are expected to include the following:







	  	• 	
To act as Administrator of EBS Liquidating Trust pursuant to the Liquidating Trust
Agreement among EBS Liquidating Trust, EBS Building, L.L.C., FTI Consulting, Inc. and
Wilmington Trust Company, dated as of April 15, 2005 (the “Trust Agreement”), a
copy of which is appended hereto as Exhibit A, and to perform the duties and
responsibilities specifically set forth in the Trust Agreement. 






	  	
The
Services may be performed by FTI or by any subsidiary of FTI, as FTI shall determine. FTI
may also provide Services through its or its subsidiaries’ agents or independent
contractors. References herein to FTI and its employees shall be deemed to apply also,
unless the context shall otherwise indicate, to employees of each such subsidiary and to
any such agents or independent contractors and their employees. 












EBS Liquidating Trust
April 15, 2005





	3. 	
Fees 







	  	
Standard
Hourly Rate Alternative






	  	
Fees
in connection with this Engagement will be based upon the time incurred providing the
Services, multiplied by our standard hourly rates, summarized as follows: 






		 		 	Per Hour	 
		 		 	 	 
		 	Senior Managing Directors	 	$560 - $625	 
		 	Directors / Managing Directors	 	$395 - $560	 
		 	Associates / Consultants	 	$195 - $385	 
		 	Administrative / Paraprofessionals	 	$  95 - $168	 








	  	
Hourly
rates are generally revised periodically. Note that we do not provide any assurance
regarding the outcome of our work and our fees will not be contingent on the results of
such work. 






	  	
In
addition to the fees outlined above, FTI will bill for reasonable expenses which are
likely to be incurred on your behalf during this Engagement, including, but not limited
to, counsel fees, airfare, meals, hotel accommodations, telephone, industry research,
duplicating and printing, etc. Further, if FTI and/or any of its employees are required to
testify or provide evidence at or in connection with any judicial or administrative
proceeding relating to this matter, FTI will be compensated by you at its regular hourly
rates and reimbursed for reasonable out of pocket expenses (including counsel fees) with
respect thereto. 






	  	
Invoices
for fees and expenses incurred in connection with this Engagement will be billed monthly,
and are due upon receipt. If we do not receive payment of the retainer or any invoice
within 15 days of the invoice date, we shall be entitled, without prejudice to any other
rights that we may have, to immediately suspend provision of the Services until all sums
due are paid in full. 






	4. 	
Terms and Conditions  







	  	
The
attached Standard Terms and Conditions set forth the duties of each party with respect to
the Services. Further, this letter and the Standard Terms and Conditions attached comprise
the entire Engagement Contract for the provision of the Services to the exclusion of any
other express or implied terms, whether expressed orally or in writing, including any
conditions, warranties and representations, and shall supersede all previous proposals,
letters of engagement, undertakings, agreements, understandings, correspondence and other
communications, whether written or oral, regarding the Services. 






	5. 	
Conflicts of Interest







	  	
We
are not aware of any conflicts of interest or additional relationships that we believe
would preclude us from performing the Services. However, as you know, we are a large
consulting firm with numerous offices throughout the United States. We are regularly
engaged by new clients, which may include one or more of the interested parties
(“Potentially Interested 








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EBS Liquidating Trust
April 15, 2005





	  	
 Parties”). We will not knowingly accept an engagement
that directly conflicts with this Engagement without your prior written consent. 






	6. 	
Acknowledgement and
Acceptance






	  	
Please
acknowledge your acceptance of the terms of this Engagement Contract by signing both the
confirmation below and the attached Standard Terms and Conditions and returning a copy of
each to us at the above address. 






If you have any questions regarding
this letter or the attached Standard Terms and Conditions, please do not hesitate to
contact Keith F. Cooper at (404) 460-6265. 



Yours faithfully, 


FTI CONSULTING, INC.


	By: 	 /s/ Keith F. Cooper 
 	 
		 Keith F. Cooper
 Senior Managing Director 	 




Attachment - As stated

















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EBS Liquidating Trust
April 15, 2005







Confirmation of Terms of
Engagement 



We agree to engage FTI Consulting,
Inc. upon the terms set forth herein and in the attached Standard Terms and Conditions. 



EBS Liquidating Trust 




	By: 	 /s/ Keith F. Cooper 
 	 
		 Keith F. Cooper, Senior Managing Director
 
         FTI Consulting, as Administrator for EBS
 
         Liquidating Trust	 



Date:        April 15, 2005            





















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FTI CONSULTING, INC.



STANDARD TERMS AND CONDITIONS



The following are the Standard Terms
and Conditions on which we will provide the Services to you set forth within the attached
letter of engagement with EBS Liquidating Trust dated April 15, 2005. The Engagement
letter and the Standard Terms and Conditions (collectively the “Engagement
Contract”) form the entire agreement between us relating to the Services and replace
and supersede any previous proposals, letters of engagement, undertakings, agreements,
understandings, correspondence and other communications, whether written or oral,
regarding the Services. The headings and titles in the Engagement Contract are included to
make it easier to read but do not form part of the Engagement Contract. 



	1. 	
Reports and Advice






	1.1	
Use and purpose of advice and reports – Any advice given or report issued by
us is provided solely for your use and benefit and only in connection with the purpose in
respect of which the Services are provided. Unless required by law, you shall not provide
any advice given or report issued by us to any third party, or refer to us or the
Services, without our prior written consent. In no event, regardless of whether consent
has been provided, shall we assume any responsibility to any third party to which any
advice or report is disclosed or otherwise made available. 






	2. 	
Information and
Assistance 







	2.1 	
Provision of information and assistance – Our performance of the Services is
dependent upon your providing us with such information and assistance as we may reasonably
require from time to time. 






	2.2 	
Punctual and accurate information – You shall use reasonable skill, care and
attention to ensure that all information we may reasonably require is provided on a timely
basis and is accurate and complete and relevant for the purpose for which it is required
You shall also notify us if you subsequently learn that the information provided is
incorrect or inaccurate or otherwise should not be relied upon. 






	2.3 	
No assurance on financial data – While our work may include an analysis of
financial and accounting data, the Services will not include an audit, compilation or
review of any kind of any financial statements or components thereof. Company management
will be responsible for any and all financial information they provide to us during the
course of this Engagement, and we will not examine or compile or verify any such financial
information. Moreover, the circumstances of the Engagement may cause our advice to be
limited in certain respects based upon, among other matters, the extent of sufficient and
available data and the opportunity for supporting investigations in the time period.
Accordingly, as part of this Engagement, we will not express any opinion or other form of
assurance on financial statements of the Company. 






	2.4 	
Prospective financial information — In the event the Services involve
prospective financial information, our work will not constitute an examination or
compilation, or apply agreed-upon procedures, in accordance with standards established by
the American Institute of Certified Public Accountants or otherwise, and we will express
no assurance of any kind on such information. There will usually be differences between
estimated and actual results, because events and circumstances frequently do not occur as
expected, and those differences may be material. We will take no responsibility for the
achievability of results or events projected or anticipated by the management of the
Company. 


















	3. 	
Additional Services 







	3.1 	
Responsibility for other parties – You shall be solely responsible for the
work and fees of any other party engaged by you to provide services in connection with the
Engagement regardless of whether such party was introduced to you by us. Except as
provided in this Engagement Contract, we shall not be responsible for providing or
reviewing the advice or services of any such third party, including advice as to legal,
regulatory, accounting or taxation matters. Further, we acknowledge that we are not
authorized under our Engagement Contract to engage any third party to provide services or
advice to you, other than our agents or independent contractors engaged to provide
Services, without your written authorization. 




	4. 	
Confidentiality







	4.1 	
Restrictions on confidential information – Both parties agree that any
confidential information received from the other party shall only be used for the purposes
of providing or receiving Services under this or any other contract between us. Except as
provided below, neither party will disclose the other party’s confidential
information to any third party without the other party’s consent. Confidential
information shall not include information that: 






	  	4.1.1 	
is or becomes generally available to the public other than as a result of a breach of an
obligation under this Clause 4.1; 






	  	4.1.2 	
is acquired from a third party who, to the recipient party’s knowledge, owes no
obligation of confidence in respect of the information; or 






	  	4.1.3 	
 is or has been independently developed by the recipient.







	4.2 	
Disclosing confidential information – Notwithstanding Clause 1.1 or 4.1 above,
either party will be entitled to disclose confidential information of the other to a third
party to the extent that this is required by valid legal process, provided that (and
without breaching any legal or regulatory requirement) where reasonably practicable not
less than 2 business days’ notice in writing is first given to the other party. 






	4.3 	
Citation of engagement – Without prejudice to Clause 4.1 and Clause 4.2 above,
to the extent our engagement is or becomes known to the public, we may cite the
performance of the Services to our clients and prospective clients as an indication of our
experience, unless we and you specifically agree otherwise in writing. 






	4.4 	
Internal quality reviews – Notwithstanding the above, we may disclose any
information referred to in this Clause 4 to any other FTI entity or use it for internal
quality reviews. 






	4.5 	
Maintenance of workpapers – Notwithstanding the above, we may keep one
archival set of our working papers from the Engagement, including working papers
containing or reflecting confidential information, in accordance with our internal
policies. 






	5. 	
Termination







	5.1 	
Termination of Engagement with notice – Either party may terminate the
Engagement Contract for whatever reason upon written notice to the other party. Upon
receipt of such notice, we will stop all work immediately. You will be responsible for all
fees and expenses incurred by us through the date termination notice is received. 








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	5.2 	
Continuation of terms – The terms of the Engagement that by their context are
intended to be performed after termination or expiration of this Engagement Contract,
including but not limited to, Clauses 3 and 4 of the Engagement letter, and Clauses 1.1,
4, 6 and 7 of the Standard Terms and Conditions, are intended to survive such termination
or expiration and shall continue to bind all parties. 






	6. 	
Indemnification and
Liability Limitation; Waiver of Jury Trial 







	6.1	
Indemnification — You agree to indemnify and hold harmless FTI and any of its
subsidiaries and affiliates, officers, directors, principals, shareholders, agents,
independent contactors and employees (collectively “Indemnified Persons”) from
and against any and all claims, liabilities, damages, obligations, costs and expenses
(including reasonable attorneys’ fees and expenses and costs of investigation)
arising out of or relating to your retention of FTI, the execution and delivery of this
Engagement Contract, the provision of Services or other matters relating to or arising
from this Engagement Contract, except to the extent that any such claim, liability,
obligation, damage, cost or expense shall have been determined by final non-appealable
order of a court of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of the Indemnified Person or Persons in respect of whom such liability
is asserted. 






	6.2 	
Limitation of liability — You agree that no Indemnified Person shall have any
liability as a result of your retention of FTI, the execution and delivery of this
Engagement Contract, the provision of Services or other matters relating to or arising
from this Engagement Contract, other than liabilities that shall have been determined by
final non-appealable order of a court of competent jurisdiction to have resulted from the
gross negligence or willful misconduct of the Indemnified Person or Persons in respect of
whom such liability is asserted. Without limiting the generality of the foregoing, in no
event shall any Indemnified Person be liable for consequential, indirect or punitive
damages, damages for lost profits or opportunities or other like damages or claims of any
kind. 






	6.3 	
WAIVER OF JURY TRIAL –TO FACILITATE JUDICIAL RESOLUTION AND SAVE TIME AND
EXPENSE, YOU AND FTI IRREVOCABLY AND UNCONDITIONALLY AGREE NOT TO DEMAND A TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THE SERVICES OR
ANY SUCH OTHER MATTER. 






     	7. 	
          Governing Law and Jurisdiction-The Engagement Contract shall be governed
          by and interpreted in accordance with the laws of the State of New York, without
          giving effect to the choice of law provisions thereof. The United States
          District Court for the Southern District of New York and the appropriate Courts
          of the State of New York sitting in the Borough of Manhattan, City of New York
          shall have exclusive jurisdiction in relation to any claim, dispute or
          difference concerning the Engagement Contract and any matter arising from it.
          The parties submit to the jurisdiction of such Courts and irrevocably waive any
          right they may have to object to any action being brought in these Courts, to
          claim that the action has been brought in an inconvenient forum or to claim that
          those Courts do not have jurisdiction. 



          



FTI CONSULTING, INC 











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Confirmation of Standard
Terms and Conditions 



We agree to engage FTI Consulting,
Inc. upon the terms set forth in these Standard Terms and Conditions as outlined above. 



EBS Liquidating Trust 




	By: 	 /s/ Keith F. Cooper 
 	 
		 Keith F. Cooper, Senior Managing Director
 
         FTI Consulting, as Administrator for EBS
 
         Liquidating Trust	 



Date:        April 15, 2005