exv10w1



 





Exhibit 10.1




AGREEMENT AND DECLARATION OF TRUST




     AGREEMENT AND DECLARATION OF TRUST, dated as of July 16, 2007, by and among T REIT, Inc., a
Virginia corporation (the “Company”) and W. Brand Inlow.



     WHEREAS, the Company’s Board of Directors (the “Board”), a Special Committee of the Board, and
the Company’s shareholders have approved the dissolution of the Company pursuant to a Plan of
Liquidation (the “Plan”);



     WHEREAS, the Plan provides, among other things, that the Board will cause the Company to
dispose of all of the assets of the Company, wind up its affairs, pay or adequately provide for the
payment of all of its liabilities and distribute to or for the benefit of its shareholders all of
the Company’s assets;



     WHEREAS, as of the date hereof, substantially all of the assets of the Company have been sold
or otherwise disposed of;



     WHEREAS, the Board believes it to be in the best interest of the Company to complete the
liquidation of the Company by transferring all remaining assets of the Company to a liquidating
trust (the “Trust”) on the Transfer Date with W. Brand Inlow serving as its initial trustee,
including a cash reserve set aside for the contingent and existing obligations of the Company and
the Trust (the “Cash Reserve”);



     WHEREAS, the Trustee shall administer the Trust pursuant to the terms of this Agreement and,
upon satisfaction of all liabilities and obligations of the Company and the Trust, the Trustee
shall distribute the residue of the proceeds of the liquidation of the assets of the Company in
accordance with the terms hereof; and



     WHEREAS, immediately prior to the transfer and assumption of the Company’s assets and
liabilities, the Company will become the owner of 100% of the interests in the Company’s operating
partnership, and, in connection with the simultaneous dissolution of the operating partnership, all
of the assets and liabilities of the operating partnership will be transferred and assigned to, and
assumed by, the Company;



     NOW THEREFORE, in consideration of the premises and other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:



ARTICLE I

NAMES AND DEFINITIONS




     1.1 Name. The Trust shall be known as the T REIT Liquidating Trust.



     1.2 Defined Terms. For all purposes of this instrument, unless the context otherwise
requires:




     (a) “Affiliate” of any Person means any entity that controls, is controlled by, or is
under common control with such Person. As used herein, “control” means the possession,
directly or indirectly, of the power to direct or cause the direction of the management and
policies of such entity, whether through ownership of voting securities or other interests,
by contract or otherwise.




     (b) “Agreement” shall mean this instrument as originally executed or as it may from time
to time be amended pursuant to the terms hereof.




     (c) “Beneficial Interest” shall mean each Beneficiary’s proportionate share of the Trust
Assets determined by the ratio of the number of Units held by such Beneficiary to the total
number of Units held by all Beneficiaries.




     (d) “Beneficiary” shall mean each holder of Units.




     (e) “Liabilities” shall mean all of the Company’s unsatisfied debts, claims,
liabilities, commitments, suits and other obligations, whether contingent or fixed or
otherwise (including, without limitation, any costs and expenses incurred or to be incurred
in connection with the liquidation of the Company).




     (f) “Person” shall mean an individual, a corporation, a partnership, an association, a
joint stock company, a limited liability company, a trust, a joint venture, any
unincorporated organization, or a government or political subdivision thereof.



 









 






     (g) “Record Date” shall mean July 16, 2007.




     (h) “Retained Assets” shall mean all of the Company’s right, title and interest in, to
and under, all of the Company’s assets, including, without limitation, its unsold properties,
interests in legal entities, accounts receivable, cash, securities, claims, causes of action,
contingent claims and reserves distributed to the Trustee.




     (i) “Shares” shall mean the shares of common stock, $0.01 par value per share, of the
Company.




     (j) “Shareholders” shall mean the holders of record of the outstanding Shares of the
Company at the close of business on the Record Date.




     (k) “Transfer Date” shall mean July 20, 2007.




     (l) “Trust” shall mean the Trust created by this Agreement.




     (m) “Trust Assets” shall mean all the property held from time to time by the Trustee
under this Agreement, which initially shall consist of the Retained Assets (excluding any
liquidating distributions declared, but unpaid, having a record date prior to the Transfer
Date), and in addition, shall thereafter include all dividends, distributions, rents,
royalties, income, payments and recoveries of claims, proceeds and other receipts of, from,
or attributable to any assets held by the Trust, less any of the foregoing utilized by the
Trustee to pay expenses of the Trust, satisfy Liabilities or to make distributions to the
Beneficiaries pursuant to the terms and conditions hereof.




     (n) “Trustee” shall mean, W. Brand Inlow, the initial Trustee under this Agreement, and
any successors thereto, pursuant to and in accordance with the terms of this Agreement.




     (o) “Units” shall have the meaning given to such term in Section 3.1(a).



ARTICLE II

GRANT TO AND NATURE OF TRANSFER




     2.1 Formation. The Company hereby grants, delivers, releases, assigns and conveys to
the Trustee, and the Trustee hereby accepts, the sum of $100 to be held in trust for the benefit of
the Beneficiaries of the Trust,



     2.2 Grant. On the Transfer Date, the Company shall grant, deliver, release, assign and convey
to the Trustee, to be held in trust for the benefit of the Beneficiaries of the Trust, all of the
Company’s right, title, interest in, to and under, the Retained Assets, for the uses and purposes
stated herein, subject to the terms and provisions set out below, and the Trustee agrees to accept
such Retained Assets, subject to the following terms and provisions.



     2.3 Purpose of Trust.




     (a) The Trust is organized for the sole purpose of winding up the Company’s affairs and
the liquidation of the Retained Assets with no objective to continue or engage in the conduct
of a trade or business, except as necessary for the orderly liquidation of the Trust Assets.




     (b) The Retained Assets granted, assigned and conveyed to the Trustee shall be held in
the Trust, and the Trustee will (i) further liquidate the Trust Assets as it deems necessary
to carry out the purpose of the Trust and facilitate distribution of the Trust Assets, (ii)
allocate, protect, conserve and manage the Trust Assets in accordance with the terms and
conditions hereof, (iii) complete the winding up of the Company’s affairs, (iv) act on behalf
of the Beneficiaries, and (v) distribute the Trust Assets in accordance with the terms and
conditions hereof.




     (c) It is intended that for federal, state and local income tax purposes, the Trust
shall be treated as a liquidating trust under Treasury Regulation Section 301.7701-4(d) and
any analogous provision of state or local law, and the Beneficiaries shall be treated as the
owners of their respective share of the Trust pursuant to Sections 671 through 679 of the
Internal Revenue Code of 1986, as amended (the “Code”) and any analogous provision of state
or local law, and shall be taxed on their respective share of the Trust’s taxable income
(including both ordinary income and capital gains) pursuant to Section 671 of the Code and
any analogous provision of state or local law. The Trustee shall file all tax returns
required to be filed with any governmental agency consistent with this position, including,
but not limited to, any returns required of grantor trusts pursuant to Treasury Regulation
Section 1.671-4(a).



     2.4 No Reversion to the Company. In no event shall any part of the Trust Assets
revert to or be distributed to the Company.



 









 





     2.5 Instruments of Further Assurance. The Company will, upon reasonable request of
the Trustee, execute, acknowledge, and deliver such further instruments and do such further acts as
may be necessary or proper to carry out effectively the purposes of this Agreement, to confirm or
effectuate the transfer to the Trustee of any property intended to be covered hereby, and to vest
in the Trustee and its successors and assigns, the estate, powers, instruments or funds in trust
hereunder.



     2.6 Payment of Liabilities. The Trustee, in its capacity as Trustee hereunder and not
in its individual capacity, shall assume all Liabilities and agrees to cause the Trust to pay,
discharge and perform when due all of the Liabilities on and as of the Transfer Date. Should any
Liability be asserted against the Trustee as the transferee of the Trust Assets or as a result of
the assumption made in this Section 2.6, the Trustee may use such part of the Trust Assets as may
be necessary in contesting any such Liability or in payment thereof, but in no event shall the
Trustee, Beneficiaries or agents of the Trust be personally liable, nor shall resort be had to the
private property of such Persons, in the event that the Trust Assets are not sufficient to satisfy
the Liabilities.



ARTICLE III

BENEFICIARIES




     3.1 Beneficial Interests.




     (a) The Beneficial Interest of each Shareholder shall be determined in accordance with a
certified copy of the Company’s shareholder list as of the Record Date. The Company will
deliver such a certified copy of the Company’s shareholder list to the Trustee within a
reasonable time after such date. The Trustee shall be entitled to rely and shall be fully
protected in relying upon the certified copy of the Company’s shareholder list. For ease of
administration, the Trustee shall express the Beneficial Interest of each Beneficiary in
terms of units (“Units”). Each record owner of Shares as of the close of business on the
Record Date shall receive one Unit for each Share then held of record. Each Beneficiary
shall have a pro rata interest in the Trust Assets equal to the number of Units held by such
owner divided by the total number of Units held by all Beneficiaries.




     (b) On and after the Transfer Date, all outstanding Shares shall be deemed cancelled
automatically.




     (c) The rights of Beneficiaries in, to and under the Trust Assets and the Trust shall
not be represented by any form of certificate or other instrument, and no Beneficiary shall
be entitled to such a certificate. The Trustee shall maintain at its place of business a
record of the name and address of each Beneficiary and such Beneficiary’s aggregate Units in
the Trust.




     (d) If any conflicting claims or demands are made or asserted with respect to the
ownership of any Units, or if there is any disagreement between the transferees, assignees,
heirs, representatives or legatees succeeding to all or part of the interest of any
Beneficiary resulting in adverse claims or demands being made in connection with such Units,
then, in any of such events, the Trustee shall be entitled, at its sole election, to refuse
to comply with any such conflicting claims or demands. In so refusing, the Trustee may elect
to make no payment or distribution with respect to such Units, or to make such payment to a
court of competent jurisdiction or an escrow agent, and in so doing, the Trustee shall not be
or become liable to any of such parties for its failure or refusal to comply with any of such
conflicting claims or demands or to take any other action with respect thereto, nor shall the
Trustee be liable for interest on any funds which it may so withhold. Notwithstanding
anything to the contrary set forth in this Section 3.1(d), the Trustee shall be entitled to
refrain and refuse to act until either (i) the rights of the adverse claimants have been
adjudicated by a final judgment of a court of competent jurisdiction, (ii) all differences
have been adjusted by valid written agreement between all of such parties, and the Trustee
shall have been furnished with an executed counterpart of such agreement, or (iii) there is
furnished to the Trustee a surety bond or other security satisfactory to the Trustee, as it
shall deem appropriate, to fully indemnify it as between all conflicting claims or demands.



     3.2 Rights of Beneficiaries. Each Beneficiary shall be entitled to participate in the
rights and benefits due to a Beneficiary hereunder according to the Beneficiary’s Beneficial
Interest. Each Beneficiary shall take and hold the same subject to all the terms and provisions of
this Agreement. The interest of each Beneficiary hereunder is declared, and shall be in all
respects, personal property and upon the death of an individual Beneficiary, the Beneficiary’s
Beneficial Interest shall pass as personal property to the Beneficiary’s legal representative and
such death shall in no way terminate or affect the validity of this Agreement. A Beneficiary shall
have no title to, right to, possession of, management of, or control of, the Trust Assets except as
expressly provided herein. No widower, widow, heir or devisee of any person who may be a
Beneficiary shall have any right of dower, homestead, or inheritance, or of partition, or of any
other right, statutory or otherwise, in any property forming a part of the Trust Assets but the
whole title to all the Trust Assets shall be vested in the Trustee and the sole interest of the
Beneficiaries shall be the rights and benefits given to such Persons under this Agreement.



     3.3 Limitations on Transfer of Interests of Beneficiaries.




     (a) THE BENEFICIAL INTEREST OF A BENEFICIARY MAY NOT BE TRANSFERRED; PROVIDED



 









 







THAT THE BENEFICIAL INTERESTS SHALL BE ASSIGNABLE OR TRANSFERABLE BY WILL, INTESTATE
SUCCESSION, OR OPERATION OF LAW.




     (b) Except as may be otherwise required by law, the Beneficial Interests of the
Beneficiaries hereunder shall not be subject to attachment, execution, sequestration or any
order of a court, nor shall such interests be subject to the contracts, debts, obligations,
engagements or liabilities of any Beneficiary, but the interest of a Beneficiary shall be
paid by the Trustee to the Beneficiary free and clear of all assignments, attachments,
anticipations, levies, executions, decrees and sequestrations and shall become the property
of the Beneficiary only when actually received by such Beneficiary.



     3.4 Trustee as Beneficiary. The Trustee, either individually or in a representative
or fiduciary capacity, may be a Beneficiary to the same extent as if it were not a Trustee
hereunder and shall have all rights of a Beneficiary, including, without imitation, the right to
vote and to receive distributions, to the same extent as if it was not the Trustee hereunder.



ARTICLE IV

DURATION AND TERMINATION OF THE TRUST




     4.1 Duration. The existence of the Trust shall terminate upon the earliest of (1) the
distribution of all the Trust Assets as provided in Section 5.7, or (2) the expiration of a period
of three years from the Transfer Date. Notwithstanding the foregoing, the Trustee may continue the
existence of the Trust beyond the three-year term if the Trustee reasonably determines that an
extension is necessary to fulfill the purposes of the trust; provided that the Trustee has
requested and obtained additional no-action assurance from the Division of Corporation Finance of
the Securities and Exchange Commission prior to such extension.



     4.2 Other Obligations of Trustee upon Termination. Upon termination of the Trust, the
Trustee shall provide for the retention of the books, records, lists of holders of Units, and files
which shall have been delivered to or created by the Trustee. At the Trustee’s discretion, all of
such records and documents may be destroyed at any time after seven years from the distribution of
all the Trust Assets. Except as otherwise specifically provided herein, upon the distribution of
all the Trust Assets, the Trustee shall have no further duties or obligations hereunder; provided,
that the Trustee shall execute and deliver such other instruments and agreements as shall be
reasonably necessary to effect the termination of the Trust.



ARTICLE V

ADMINISTRATION OF TRUST ASSETS




     5.1 Sale of Trust Assets. Subject to the terms and conditions of this Agreement, the
Trustee may, at such times as the Trustee deems appropriate, collect, liquidate, reduce to cash,
transfer, assign, or otherwise dispose of all or any part of the Trust Assets as it deems
appropriate at public auction or at private sale for cash, securities or other property, or upon
credit (either secured or unsecured as the Trustee shall determine). The Trustee shall make
continuing efforts to dispose of the Trust’s assets, make timely distributions and not unduly
prolong the duration of the Trust.



     5.2 Efforts to Resolve Claims and Liabilities. Subject to the terms and conditions of
this Agreement, the Trustee shall make appropriate efforts to resolve any contingent or
unliquidated claims and outstanding contingent Liabilities for which the Trust may be responsible,
dispose of the Trust Assets, make timely distributions and not unduly prolong the duration of the
Trust.



     5.3 Continued Collection of Trust Assets. All property that is determined to be a
part of the Trust Assets shall continue to be collected by the Trustee and held as a part of the
Trust. The Trustee shall hold the Trust Assets without being obligated to provide for or pay any
interest thereon to any Beneficiary, except to the extent of such Beneficiary’s share of interest
actually earned by the Trust after payment of the Trust’s liabilities and expenses as provided in
Section 5.5.



     5.4 Restriction on Trust Assets. The Trustee shall cause to be distributed any assets
prohibited by Revenue Procedure 82-58, 1982-2 C.B. 847 (as amplified by Revenue Procedure 91-15,
1991-1 C.B. 484), as the same may be further amended, supplemented, or modified, including, but not
limited to, any listed stocks or securities, any readily-marketable assets, any operating assets of
a going business, any unlisted stock of a single issuer that represents 80% or more of the stock of
such issuer, or any general or limited partnership interest, except that the Trust may receive and
hold for disposition, the ownership interests identified in Schedule B hereto. The Trustee shall
not retain cash in excess of a reasonable amount to meet expenses, charges and obligations of the
Trust, the Trust Assets and all Liabilities.



     5.5 Payment of Expenses and Liabilities. The Trustee shall pay from the Trust Assets
all expenses, charges, and obligations of the Trust and of the Trust Assets and all Liabilities and
obligations which the Trustee specifically assumes and agrees to pay pursuant to this Agreement and
such transferee liabilities which the Trustee may be obligated to pay as transferee of the Trust
Assets, including, but not limited to, interest, penalties, taxes, assessments, and public charges
of any kind or nature and the costs, charges, and expenses connected with or growing out of the
execution or administration of the Trust and such other payments and disbursements as are provided
in this Agreement or which may be determined to be a proper charge against the Trust Assets by the
Trustee.



 









 





     5.6 Interim Distributions. At such times as may be determined in its sole discretion,
the Trustee shall distribute, or cause to be distributed to the Beneficiaries, in proportion to the
number of Units held by each Beneficiary on the record date for such distribution as determined by
the Trustee in its sole discretion, such cash or other property comprising a portion of the Trust
Assets as the Trustee may in its sole discretion determine may be distributed; provided, however,
that the Trustee shall distribute, or cause to be distributed, at least annually to the
Beneficiaries all cash proceeds from the sale of the Trust Assets in excess of a reasonable amount
(as determined by the Trustee) to satisfy the Liabilities and expenses described in Section 5.5.



     5.7 Final Distribution. If the Trustee determines that the Liabilities and all other
claims, expenses, charges, and obligations of the Trust have been paid or discharged, the Trustee
shall, as expeditiously as is consistent with the conservation and protection of the Trust Assets,
distribute the remaining Trust Assets, if any, to the Beneficiaries in proportion to the number of
Units held by each Beneficiary.



     5.8 Reports to Beneficiaries and Others.




     (a) As soon as practicable after the Transfer Date, the Trustee will mail to each
Beneficiary a notice indicating how many Units such person beneficially owns and the
Trustee’s address and other contact information. As soon as practicable after the end of
each tax year and after termination of the Trust, but in any event within 90 days after each
such event, the Trustee shall submit a written report and account to the Beneficiaries
showing (i) the assets and liabilities of the Trust at the end of such taxable year or upon
termination and the receipts and disbursements of the Trustee for such taxable year or
period, prepared in accordance with generally accepted accounting principles, (ii) any
changes in the Trust Assets and Liabilities that they have not previously reported, (iii)
statements of net assets and changes in net assets for such taxable year and (iv) any action
taken by the Trustee in the performance of its duties under this Agreement that it has not
previously reported, and which, in its opinion, materially affects the Trust Assets or
Liabilities.




     (b) The tax year of the Trust shall end on December 31 of each year.




     (c) During the course of a tax year, whenever a material event relating to the Trust’s
Assets occurs, the Trustee shall, within a reasonable period of time after such occurrence,
prepare and mail to the Beneficiaries an interim report describing such event. The
occurrence of a material event need not be reported in an interim report if an annual report
pursuant to Section 5.8(a) will be issued at approximately the same time that such interim
report would be issued and such annual report describes the material event as it would be
discussed in an interim report. The occurrence of a material event will be determined solely
by the Trustee or as may be required by the rules and regulations promulgated by the
Securities and Exchange Commission.




     (d) Section 55-550.05 of the Virginia Code shall apply to the Trustee’s reports pursuant
to this Section.



     5.9 Federal Income Tax Information. As soon as practicable after the close of each
tax year, the Trustee shall mail to each Person who was a Beneficiary during such year, a statement
showing, on a per Unit basis, the information necessary to enable a Beneficiary to determine its
taxable income (if any) from the Trust as determined for federal income tax purposes. In addition,
after receipt of a request in good faith, the Trustee shall furnish to any Person who has been a
Beneficiary at any time during the preceding year, at the expense of such Person and at no cost to
the Trust, a statement containing such further tax information as is reasonably requested by such
Person.



     5.10 Books and Records. The Trustee shall maintain in respect of the Trust and the
holders of Units books and records relating to the Trust Assets, income and liabilities of the
Trust in such detail and for such period of time as may be necessary to enable it to make full and
proper accounting in respect thereof in accordance with this Article V and to comply with
applicable law. Such books and records shall be maintained on a basis or bases of accounting
necessary to facilitate compliance with the tax reporting requirements of the Trust and the
reporting obligations of the Trustee under Section 5.2. Except as provided in Section 5.8, nothing
in this Agreement requires the Trustee to file any accounting or seek approval of any court with
respect to the administration of the Trust or as a condition for managing any payment or
distribution out of the Trust Assets. Beneficiaries shall have the right upon 30 days’ prior
written notice delivered to the Trustee to inspect during normal business hours such books and
records (including financial statements); provided that, if so requested, such Beneficiaries shall
have entered into a confidentiality agreement satisfactory in form and substance to the Trustee.



     5.11 Appointment of Agents, etc.





     (a) The Trustee shall be responsible for the general policies of the Trust and for the
general supervision of the activities of the Trust conducted by all agents, advisors or
managers of the Trust. The Trustee shall have the power to appoint or contract with any
Person or Persons as the Trustee may deem necessary or proper for the transaction of all or
any portion of the activities of the Trust.



 









 






     (b) The Trustee shall have the power to determine the terms and compensation of any
Person with whom it may contract pursuant to Section 5.11(a), subject to the provisions of
Section 5.12.




     (c) The Trustee shall not be required to administer the Trust as its sole and exclusive
function and the Trustee may have other business interests and may engage in other activities
similar or in addition to those relating to the Trust, including the rendering of advice or
services of any kind to investors or any other Persons and the management of other
investments, subject to the Trustee’s obligations under this Agreement and applicable law.



     5.12 Fiduciary Duty.




     (a) To the extent that, at law or in equity, the Trustee has duties (including fiduciary
duties) and liabilities relating thereto to the Trust, the Beneficiaries or to any other
Person, the Trustee acting under this Agreement shall not be liable to the Trust, the
Beneficiaries or to any other Person for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict the duties and
liabilities of the Trustee otherwise existing at law or in equity are agreed by the parties
hereto to replace such other duties and liabilities of the Trustee.




     (b) Unless otherwise expressly provided herein:




          (i) whenever a conflict of interest exists or arises between the Trustee or any
of its Affiliates, on the one hand, and the Trust or any Beneficiaries or any other
Person, on the other hand; or




          (ii) whenever this Agreement or any other agreement contemplated herein or
therein provides that the Trustee shall act in a manner that is, or provides terms
that are, fair and reasonable to the Trust, any Beneficiaries or any other Person, the
Trustee shall resolve such conflict of interest, take such action or provide such
terms, considering in each case the relative interest of each party (including its own
interest) to such conflict, agreement, transaction or situation and the benefits and
burdens relating to such interests, any customary or accepted industry practices, and
any applicable generally accepted accounting practices or principles. In the absence
of bad faith by the Trustee, the resolution, action or terms so made, taken or
provided by the Trustee shall not constitute a breach of this Agreement or any other
agreement contemplated herein or of any duty or obligation of the Trustee at law or in
equity or otherwise.




     (c) Notwithstanding any other provision of this Agreement or otherwise applicable law,
whenever in this Agreement the Trustee is permitted or required to make a decision:




     (i) in its “discretion” or under a grant of similar authority, the Trustee shall
be entitled to consider such interests and factors as it desires, including its own
interests, and, to the fullest extent permitted by applicable law, shall have no duty
or obligation to give any consideration to any interest of or factors affecting the
Trust, the Beneficiaries or any other Person; or




     (ii) in its “good faith” or under another express standard, the Trustee shall act
under such express standard and shall not be subject to any other or different
standard.




     (d) The Trustee and any Affiliate of the Trustee may engage in or possess an interest in
other profit-seeking or business ventures of any nature or description, independently or with
others, whether or not such ventures are competitive with the Trust and the doctrine of
corporate opportunity, or any analogous doctrine, shall not apply to the Trustee. No Trustee
who acquires knowledge of a potential transaction, agreement, arrangement or other matter
that may be an opportunity for the Trust shall have any duty to communicate or offer such
opportunity to the Trust, and such Trustee shall not be liable to the Trust or to the
Beneficiaries for breach of any fiduciary or other duty by reason of the fact that such
Trustee pursues or acquires for, or directs such opportunity to another Person or does not
communicate such opportunity or information to the Trust. Neither the Trust nor any
Beneficiary shall have any rights or obligations by virtue of this Agreement or the trust
relationship created hereby in or to such independent ventures or the income or profits or
losses derived therefrom, and the pursuit of such ventures, even if competitive with the
activities of the Trust, shall not be deemed wrongful or improper. Any Trustee may engage or
be interested in any financial or other transaction with the Beneficiaries or any Affiliate
of the Trust or the Beneficiaries, or may act as depositary for, trustee or agent for, or act
on any committee or body of holders of, securities or other obligations of the Trust or the
Beneficiaries or their Affiliates.



ARTICLE VI

POWERS OF AND LIMITATIONS ON THE TRUSTEE




     6.1 Limitations on Trustee. The Trustee shall not at any time, on behalf of the Trust
or Beneficiaries, enter into or engage in any trade or business except as necessary for the orderly
liquidation of the Trust Assets. The Trustee shall be restricted to the holding, collection and
sale of the Trust Assets and the payment and distribution thereof for the purposes set forth in
this



 









 







Agreement and to the conservation and protection of the Trust Assets and the administration
thereof in accordance with the provisions of this Agreement. In no event shall the Trustee take
any action which would jeopardize the status of the Trust as a “liquidating trust” for federal,
state or local income tax purposes within the meaning of Treasury Regulation Section 301.7701-4(d)
and any analogous provision of state or local law. The Trustee shall not invest any of the cash
held as Trust Assets, except that the Trustee may invest in (i) direct obligations of the United
States of America or obligations of any agency or instrumentality thereof which mature not later
than one year from the date of acquisition thereof, (ii) money market deposit accounts, checking
accounts, savings accounts, or certificates of deposit, or other time deposit accounts which mature
not later than one year from the date of acquisition thereof which are issued by a commercial bank
or savings institution organized under the laws of the United States of America or any state
thereof, or (iii) other temporary investments not inconsistent with the Trust’s status as a
liquidating trust for tax purposes. Neither the Trustee nor any affiliate of the Trustee shall
take any action to facilitate or encourage trading in the Beneficial Interests or in any instrument
tied to the value of the Beneficial Interests such as due bill trading.



     6.2 Specific Powers of Trustee. Subject to the provisions of the terms and conditions
of this Agreement, the Trustee shall have the following specific powers in addition to any powers
conferred upon it by any other Section or provision of this Agreement or any laws of the
Commonwealth of Virginia; provided that the enumeration of the following powers shall not be
considered in any way to limit or control the power of the Trustee to act as specifically
authorized by any other Section or provision of this Agreement and to act in such a manner as the
Trustee may deem necessary or appropriate to conserve and protect the Trust Assets or to confer on
the Beneficiaries the benefits intended to be conferred upon them by this Agreement:




     (a) to determine the nature and amount of the consideration to be received with respect
to the sale or other disposition of, or the grant of interest in, the Trust Assets;




     (b) to collect, liquidate or otherwise convert into cash, or such other property as it
deems appropriate, all property, assets and rights in the Trust Assets, and to pay,
discharge, and satisfy all other claims, expenses, charges, Liabilities and obligations
existing with respect to the Trust Assets, the Trust or the Trustee;




     (c) to elect, appoint, engage or retain any Persons as agents, representatives or
independent contractors (including without limitation real estate advisors, investment
advisors, accountants, transfer agents, attorneys-at-law, managers, appraisers, brokers, or
otherwise) in one or more capacities, and to pay reasonable compensation from the Trust
Assets for services in as many capacities as such Person may be so elected, appointed,
engaged or retained (provided that any such agreements or arrangements with a person or
entity affiliated with the Trustee shall be on terms no less favorable to the Trust than
those available to the Trust in similar agreements or arrangements with unaffiliated third
parties, and such agreements or arrangements shall be terminable, without penalty, on 60 days
prior written notice by the Trust), to prescribe the titles, powers and duties, terms of
service and other terms and conditions of the election, appointment, engagement or retention
of such Persons and, except as prohibited by law, to delegate any of the powers and duties of
the Trustee to agents, representatives, independent contractors or other Persons, including,
without limitation, the retention of Triple Net Properties, LLC and its affiliates to provide
various services to the Trust consistent with the types of services and compensation terms
previously applicable to the Company prior to the formation of the Trust;




     (d) to retain and set aside such funds out of the Trust Assets as the Trustee shall deem
necessary or expedient to pay, or provide for the payment of (i) unpaid claims, expenses,
charges, Liabilities and obligations of the Trust, the Company or any Subsidiary; and (ii)
the expenses of administering the Trust Assets;




     (e) to do and perform any and all acts necessary or appropriate for the conservation and
protection of the Trust Assets, including acts or things necessary or appropriate to maintain
the Trust Assets held by the Trustee pending sale or disposition thereof or distribution
thereof to the Beneficiaries;




     (f) to institute or defend actions or judgments for declaratory relief or other actions
or judgments and to take such other action, in the name of the Trust or the Company or as
otherwise required, as the Trustee may deem necessary or desirable to enforce any
instruments, contracts, agreements, causes of action, or rights relating to or forming a part
of the Trust Assets;




     (g) to determine conclusively from time to time the value of and to revalue the
securities and other property of the Trust, in accordance with independent appraisals or
other information as it deems necessary or appropriate;




     (h) to cancel, terminate, or amend any instruments, contracts, agreements, obligations,
or causes of action relating to or forming a part of the Trust Assets, and to execute new
instruments, contracts, agreements, obligations or causes of action notwithstanding that the
terms of any such instruments, contracts, agreements, obligations, or causes of action may
extend beyond the terms of the Trust;




     (i) in the event any of the property which is or may become a part of the Trust Assets
is situated in any state or other jurisdiction in which the Trustee is not qualified to act
as Trustee, to nominate and appoint an individual or corporate



 









 







trustee qualified to act in such state or other jurisdiction in connection with the
property situated in that state or other jurisdiction as a trustee of such property and
require from such trustee such security, if any, as may be designated by the Trustee, which,
in the sole discretion of the Trustee may be paid out of the Trust Assets. The trustee so
appointed shall have all the rights, powers, privileges and duties and shall be subject to
the conditions and limitations of the Trust, except as limited by the Trustee and except
where the same may be modified by the laws of such state or other jurisdiction (in which
case, the laws of the state or other jurisdiction in which such trustee is acting shall
prevail to the extent necessary). Such trustee shall be answerable to the Trustee herein
appointed for all monies, assets and other property which may be received by it in connection
with the administration of such property. The Trustee hereunder may remove such trustee,
with or without cause, and appoint a successor trustee at any time by the execution by the
Trustee of a written instrument declaring such trustee removed from office, and specifying
the effective date of removal;




     (j) to cause any investments of any part of the Trust Assets to be registered and held
in its name or in the names of a nominee or nominees without increase or decrease of
liability with respect thereto;




     (k) to terminate and dissolve any entities owned by the Trust; and




     (1) to perform any act authorized, permitted, or required under any instrument,
contract, agreement, right, obligation, or cause of action relating to or forming a part of
the Trust Assets whether in the nature of an approval, consent, demand, or notice thereunder
or otherwise, unless such act would require the consent of the Beneficiaries in accordance
with the express provisions of this Agreement.



ARTICLE VII

CONCERNING THE TRUSTEE, BENEFICIARIES AND AGENTS




     7.1 Generally. The Trustee accepts and undertakes to discharge the Trust, upon the
terms and conditions hereof, on behalf of the Beneficiaries. The Trustee shall exercise such of
the rights and powers vested in it by this Agreement in good faith and in the best interests of the
Beneficiaries. The Trustee shall not be personally liable for any act or omission hereunder except
as determined by a final order of a court of competent jurisdiction for its own grossly negligent
action, its own grossly negligent failure to act, or its own fraud or willful misconduct, in each
case, as determined by a final order of a court of competent jurisdiction from which no appeal can
or is taken, except that:




     (a) no successor Trustee shall be responsible for the acts or omissions of a Trustee in
office prior to the date on which it becomes a Trustee;




     (b) the Trustee shall not be liable to the Beneficiaries for the acts or omissions of an
agent, advisor or manager of the Trust appointed by the Trustee hereunder, except where the
Trustee specifically directs the act of such Person, delegates the authority to such Person
to act where such Trustee was under a duty not to delegate, does not use reasonable prudence
in the selection or retention of such Person, does not periodically review such person’s
overall performance and compliance with the terms of such delegation; conceals the act or
omission of such Person; or neglects to take reasonable steps to redress any wrong committed
by such Person when such Trustee is aware of such Person’s act or omission; provided,
however, that this subsection (b) shall not apply to acts or omissions of any Affiliate of
Trustee, or any of their respective employees;




     (c) the Trustee shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Agreement, and no implied covenants or
obligations shall be read into this Agreement against the Trustee;




     (d) in the absence of bad faith on the part of the Trustee, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and conforming to the
requirements of this Agreement; but in the case of any such certificates or opinions which
are specifically required to be furnished to the Trustee by any provision hereof, the Trustee
shall be under a duty to examine the same to determine whether or not they conform to the
requirements of this Agreement;




     (e) the Trustee shall not be liable for any reasonable error of judgment made in good
faith; and




     (f) the Trustee shall not be liable with respect to any action taken or omitted to be
taken by the Trustee in good faith in accordance with the terms and conditions of this
agreement and at the direction of Beneficiaries having aggregate Units of at least one-third
of the total Units held by all Beneficiaries relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising any right or
power conferred upon the Trustee under this Agreement.



     7.2 Reliance by Trustee. Except as otherwise provided in Section 7.1:



 









 






     (a) The Trustee may consult with legal counsel, auditors or other experts to be selected
by it and the advice or opinion of such counsel, auditors, or other experts shall be full and
complete personal protection to the Trustee and agents of the Trust in respect of any action
taken or suffered by the Trustee in good faith and in the reliance on, or in accordance with,
such advice or opinion.




     (b) Persons dealing with the Trustee shall look only to the Trust Assets to satisfy any
liability incurred by the Trustee to such Person in carrying out the terms of the Trust, and
the Trustee shall have no personal or individual obligation to satisfy any such liability.




     (c) As far as reasonably practicable, the Trustee shall cause any written instrument
creating an obligation of the Trust to include a reference to this Agreement and to provide
that neither the Beneficiaries, the Trustee nor their agents shall be liable thereunder, and
that the other parties to such instrument shall look solely to the Trust Assets for the
payment of any claim thereunder or the performance thereof; provided that the omission of
such provision from any such instrument shall not render the Beneficiaries, the Trustee or
their agents liable, nor shall the Trustee be liable to anyone for such omission.




     7.3 Limitation on Liability to Third Persons. No Beneficiary shall be subject
to any personal liability whatsoever, in tort, contract, or otherwise, to any Person in
connection with the Trust Assets or the affairs of the Trust, and, to the fullest extent
permitted by law, no Trustee or agent of the Trust shall be subject to any personal liability
whatsoever in tort, contract, or otherwise, to any Beneficiary or any other Person in
connection with the Trust Assets or the affairs of the Trust, except to the extent determined
by a court of competent jurisdiction from which no appeal can be or is taken, to have
resulted from the gross negligence, fraud or willful misconduct knowingly and intentionally
committed in bad faith by such Trustee or agent of the Trust. All such other Persons shall
look solely to the Trust Assets for satisfaction of claims of any nature arising in
connection with the affairs of the Trust. The Trustee shall, at all times, at the expense of
the Trust, maintain insurance for the protection of the Trust Assets, its Beneficiaries, the
Trustee and agents in such amount as the Trustee shall deem adequate to cover all foreseeable
liability to the extent available at reasonable rates.




     7.4 Recitals. Any written instrument creating an obligation of the Trust shall
be conclusively taken to have been executed or done by a Trustee or agent of the Trust only
in its capacity as Trustee under this Agreement, or in its capacity as an agent of the Trust.




     7.5 Indemnification. The Trustee and each Person appointed by the Trustee
pursuant to Section 5.11, and the directors, officers, employees and agents of each such
Person (each an “Indemnified Person” and collectively the “Indemnified Persons”), shall, to
the fullest extent permitted by law, be indemnified out of the Trust Assets against all
liabilities and expenses, including amounts paid in satisfaction of judgments, in compromise
or as fines and penalties, and counsel fees, reasonably incurred by the Indemnified Persons
in connection with the defense or disposition of any action, suit or other proceeding by the
Trust or any other Person, whether civil or criminal, in which the Indemnified Person may be
involved or with which the Indemnified Person may be threatened: (i) in the case of the
Trustee or a Person appointed by the Trustee pursuant to Section 5.11, while in office or
thereafter, by reason of his being or having been such a Trustee or agent including, without
limitation, in connection with or arising out of any action, suit or other proceeding based
on any alleged breach of duty, neglect, error, misstatement, misleading statement, omission
or act of the Trustee or any such Person in such capacity: and (iii) in the case of any
director, officer or agent of any such Person, by reason of any such Person exercising or
failing to exercise any right or power hereunder; provided that the Indemnified Person shall
not be entitled to such indemnification with respect to any matter as to which the
Indemnified Person shall have been adjudicated by a final order of a court of competent
jurisdiction from which no appeal can be or is taken, to have acted with gross negligence,
fraud or willful misconduct knowingly and intentionally committed in bad faith. The rights
accruing to any Indemnified Person under these provisions shall not exclude any other right
to which the Indemnified Person may be lawfully entitled; provided that no Indemnified Person
may satisfy any right of indemnity or reimbursement granted herein, or to which the
Indemnified Person may be otherwise entitled, except out of the Trust Assets, and no
Beneficiary shall be personally liable to any person with respect to any claim for indemnity
or reimbursement or otherwise. The Trustee may make advance payments in connection with
indemnification under this Section 7.5, provided that the Indemnified Person shall have given
a written undertaking to repay any amount advanced to the Indemnified Person and to reimburse
the Trust in the event that it is subsequently determined that the Indemnified Person is not
entitled to such indemnification. The Trustee may purchase such insurance as it believes, in
the exercise of its discretion, adequately insures that each Indemnified Person shall be
indemnified against any such loss, liability, or damage pursuant to this Section 7.5.
Nothing contained herein shall restrict the right of the Trustee to indemnify or reimburse
such Indemnified Person in any proper case, even though not specifically provided for herein,
nor shall anything contained herein restrict the right of any such Indemnified Person to
contribution under applicable law.



ARTICLE VIII

PROTECTION OF PERSONS DEALING WITH THE TRUSTEE




     8.1 Action by Trustee. At any time there is more than one Trustee, all action with
respect to the disposition and distribution of the Trust Assets required or permitted to be taken
by the Trustee, in its capacity as Trustee, shall be taken by approval,



 









 




consent, vote or resolution authorized by at least a majority of the Trustees.




     8.2 Reliance on Statements by Trustee. Any Person dealing with the Trustee shall be
fully protected in relying upon a certificate signed by the Trustee, stating that it has authority
take any action under the Trust. Any Person dealing with the Trustee shall be fully protected in
relying upon the Trustee’s certificate setting forth the facts concerning the action taken by the
Trustee pursuant to this Agreement, including the aggregate number of Units held by the
Beneficiaries causing such action to be taken.



ARTICLE IX

COMPENSATION OF TRUSTEE




     9.1 Amount of Compensation. In lieu of commissions or other compensation fixed by law
for the Trustee, the Trustee shall receive as compensation for services as Trustee hereunder the
amounts set forth in Schedule A attached hereto, or as may subsequently be approved by
Beneficiaries having a majority of the total Units present in person or by proxy at any meeting
validly called for such purpose pursuant to Section 12 hereof.



     9.2 Expenses. The Trustee shall be reimbursed from the Trust Assets for all expenses
reasonably incurred, and appropriately documented, by the Trustee in the performance of the
Trustee’s duties in accordance with this Agreement.



ARTICLE X

TRUSTEE AND SUCCESSOR TRUSTEE




     10.1 Number and Qualification of Trustee.




     (a) Subject to the provisions of Section 10.3 relating to the period pending the
appointment of a successor Trustee, there shall be one Trustee of this Trust, which shall be
a citizen and resident of or a corporation or other entity which is incorporated or formed
under the laws of a state of the United States and, if a corporation, it shall be authorized
to act as a corporate fiduciary under the laws of the Commonwealth of Virginia or such other
jurisdiction as shall be determined by the Trustee in its sole discretion. The number of
Trustees may be increased or decreased from time to time by the Trustee.




     (b) If a corporate Trustee shall ever change its name, or shall reorganize or
reincorporate, or shall merge with or into or consolidate with any other bank or trust
company, such corporate trustee shall be deemed to be a continuing entity and shall continue
to act as a trustee hereunder with the same liabilities, duties, powers, titles, discretions,
and privileges as are herein specified for a Trustee.



     10.2 Resignation and Removal. Any Trustee may resign and be discharged from the Trust
hereby created by giving written notice to the Beneficiaries at their respective addresses as they
appear on the records of the Trustee. Such resignation shall become effective upon the appointment
of such Trustee’s successor, and such successor’s acceptance of such appointment, whichever is
earlier. Any Trustee may be removed at any time, with cause, by Beneficiaries having aggregate
Units of at least a majority of the total Units held by all Beneficiaries. Any Trustee may be
removed at any time, without cause, by Beneficiaries having aggregate Units of at least two-thirds
of the total Units held by all Beneficiaries.



     10.3 Appointment of Successor. Should at any time the Trustee resign or be removed,
die, become mentally incompetent or incapable of action (as determined by the Beneficiaries holding
Units representing an aggregate of at least a majority of the total Beneficial Interests in the
Trust), or be adjudged bankrupt or insolvent, unless any remaining Trustees shall decrease the
number of Trustees of the Trust pursuant to Section 10.1 hereof, or shall the number of Trustees be
increased in accordance with Section 10.3 hereof, a vacancy shall be deemed to exist and a
successor shall be appointed by any remaining Trustees. If (i) such a vacancy is not filled by any
remaining Trustees within ninety (90) days, and the remaining Trustees, if any, have notified the
Beneficiaries of their inability to fill such vacancy or (ii) there is no remaining Trustee then,
the Beneficiaries may, pursuant to Article 12 hereof, call a meeting to appoint a successor Trustee
by Beneficiaries holding Units representing an aggregate of at least a majority of the total
Beneficial Interests in the Trust present at the meeting, in person or by proxy. Pending the
appointment of a successor Trustee, the remaining Trustee or Trustees then serving may take any
action in the manner set forth in Section 8.1.



     10.4 Acceptance of Appointment by Successor Trustee. Any successor Trustee appointed
hereunder shall execute an instrument accepting such appointment hereunder and shall file one
counterpart with the books and records of the Trust and, in case of a resignation, deliver one
counterpart to the retiring Trustee. Thereupon such successor Trustee shall, without any further
act, become vested with all the estates, properties, rights, powers, trusts, and duties of its
predecessor in the Trust hereunder with like effect as if originally named therein; but the former
Trustee shall nevertheless, when requested in writing by the successor Trustee, execute and deliver
an instrument or instruments conveying and transferring to such successor Trustee upon the trust
herein expressed, all the estates, properties, rights, powers, and trusts of such retiring Trustee,
and it shall duly assign, transfer, and deliver to such successor Trustee all property and money
held by such Trustee hereunder.



     10.5 Bonds. Unless required by the Board prior to the Transfer Date, or unless a bond
is required by law, no bond shall



 









 




be required of any original Trustee hereunder. Unless a bond is required by law and such
requirement cannot be waived by or with approval of the Beneficiaries holding aggregate Units of at
least a majority of the total Units held by all Beneficiaries, no bond shall be required of any
successor Trustee hereunder. If a bond is required by law, no surety or security with respect to
such bond shall be required unless required by law and such requirement cannot be waived by or with
approval of the Beneficiaries or unless required by the Board. If a bond is required by the Board
or by law, the Board or the Trustee, as the case may be, shall determine whether, and to what
extent, a surety or security with respect to such bond shall be required. The cost of any such
bond shall be borne by the Trust.




ARTICLE XI

CONCERNING THE BENEFICIARIES




     11.1 Evidence of Action by Beneficiaries. Whenever in this Agreement it is provided
that the Beneficiaries may take any action (including the making of any demand or request, the
giving of any notice, consent, or waiver, the removal of a Trustee, the appointment of a successor
Trustee, or the taking of any other action), the fact that at the time of taking any such action
such Beneficiaries have joined therein may be evidenced: (i) by any instrument or any number of
instruments of similar tenor executed by the Beneficiaries in person or by agent or attorney
appointed in writing; or (ii) by the record of the Beneficiaries voting in favor thereof at any
meeting of Beneficiaries duly called and held in accordance with the provisions of Article XII.



     11.2 Limitation on Suits by Beneficiaries. No Beneficiary shall have any right by
virtue of any provision of this Agreement to institute any action or proceeding at law or in equity
against any party other than the Trustee upon or under or with respect to the Trust Assets or the
agreements relating to or forming part of the Trust Assets, and the Beneficiaries (by their
acceptance of any distribution made to them pursuant to this Agreement) waive any such right.



     11.3 Requirement of Undertaking. The Trustee may request any court to require, and
any court may in its discretion require, in any suit for the enforcement of any right or remedy
under this Agreement, or in any suit against the Trustee for any action taken or omitted to be
taken by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the
costs of such suit, and such court may in its discretion assess reasonable costs, including
reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; provided that the
provisions of this Section 11.3 shall not apply to any suit by the Trustee.



ARTICLE XII

MEETING OF BENEFICIARIES




     12.1 Purpose of Meetings. A meeting of the Beneficiaries may be called at any time
and from time to time pursuant to the provisions of this Article for the purposes of taking any
action which the terms of this Agreement permit Beneficiaries to take either acting alone or with
the Trustee.



     12.2 Meeting Called by Trustee. The Trustee may at any time call a meeting of the
Beneficiaries to be held at such time and at such place as the Trustee shall determine. Written
notice of every meeting of the Beneficiaries shall be given by the Trustee (except as provided in
Section 12.3), which written notice shall set forth the time and place of such meeting and in
general terms the action proposed to be taken at such meeting, and shall be mailed not more than 60
nor less than 10 days before such meeting is to be held to all of the Beneficiaries of record not
more than 60 days before the date of such meeting. The notice shall be directed to the
Beneficiaries at their respective addresses as they appear in the records of the Trust.



     12.3 Meeting Called on Request of Beneficiaries. Within 30 days after written request
to the Trustee by Beneficiaries holding an aggregate of at least 25% of the total Units held by all
Beneficiaries to call a meeting of all Beneficiaries, which written request shall specify in
reasonable detail the action proposed to be taken, the Trustee shall proceed under the provisions
of Section 12.2 to call a meeting of the Beneficiaries, and if the Trustee fails to call such
meeting within such 30 day period then such meeting may be called by such Beneficiaries, or their
designated representatives, requesting such meeting.



     12.4 Persons Entitled to Vote at Meeting of Beneficiaries. Each Beneficiary shall be
entitled to vote at a meeting of the Beneficiaries either in person or by his proxy duly authorized
in writing. The signature of the Beneficiary on such written authorization need not be witnessed
or notarized. Each Beneficiary shall be entitled to a number of votes equal to the number of Units
held by such Beneficiary as of the applicable record date.



     12.5 Quorum. Except as otherwise required by this Agreement or law, Beneficiaries
holding at least one-third of the total Units held by all Beneficiaries shall be necessary to
constitute a quorum at any meeting of Beneficiaries for the transaction of business. If less than
a quorum be present, Beneficiaries having aggregate Units of at least a majority of the total Units
held by all Beneficiaries represented at the meeting may adjourn such meeting with the same effect
and for all intents and purposes as though a quorum had been present. Except to the extent a
different percentage is specified in this Agreement for a particular matter or is required by law,
when a quorum is present, the approval of Beneficiaries having aggregate Units of at least a
majority of the total Units present or represented by proxy at such meeting shall be required for
taking action on any matter voted on by the Beneficiaries.



 









 





     12.6 Adjournment of Meeting. Subject to Section 12.5, any meeting of Beneficiaries
may be adjourned from time to time and a meeting may be held at such adjourned time and place
without further notice.



     12.7 Conduct of Meetings. The Trustee shall appoint the Chairman and the Secretary of
the meeting. The vote upon any resolution submitted to any meeting of Beneficiaries shall be by
written ballot. An Inspector of Votes, appointed by the Chairman of the meeting, shall count all
votes cast at the meeting for or against any resolution and shall make and file with the Secretary
of the meeting their verified written report.



     12.8 Record of Meeting. A record of the proceedings of each meeting of Beneficiaries
shall be prepared by the Secretary of the meeting. The record shall be signed and verified by the
Secretary of the meeting and shall be delivered to the Trustee to he preserved by them. Any record
so signed and verified shall be conclusive evidence of all of the matters therein stated.



ARTICLE XIII

AMENDMENTS




     13.1 Consent of Beneficiaries. At the written direction or with the written consent
of Beneficiaries holding at least a majority of the total Units present, in person or by proxy, at
any meeting validly called for such purpose pursuant to Section 12 hereof, or such greater or
lesser percentage as shall be specified in this Agreement for the taking of an action by the
Beneficiaries under the affected provision of this Agreement, the Trustee shall promptly make and
execute a declaration amending this Agreement for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or amendments
thereto; provided that no such amendment shall increase the potential liability of the Trustee
hereunder without the written consent of the Trustee; provided, further, that no such amendment
shall permit the Trustee to engage in any activity prohibited by Section 6.1 hereof or affect the
Beneficiaries’ rights to receive their pro rata shares of the Trust Assets at the time of any
distribution, and no such amendment shall jeopardize the status of the Trust as a “liquidating
trust” for federal, state, or local income tax purposes within the meaning of Treasury Regulation
Section 301.7701-4(d) and any analogous provision of state or local law or jeopardize the
Beneficiaries treatment as other than the owners of their respective shares of the Trust’s taxable
income pursuant to Section 671 through 679 of the Code and any analogous provision of state or
local law.



     13.2 Notice and Effect of Amendment. Promptly after the execution by the Trustee of
any such declaration of amendment, the Trustee shall give notice of the substance of such amendment
to the Beneficiaries or, in lieu thereof, the Trustee may send a copy of the amendment to each
Beneficiary. Upon the execution of any such declaration of amendment by the Trustee, this
Agreement shall be deemed to be modified and amended in accordance therewith and the respective
rights, limitations of rights, obligations, duties, and immunities of the Trustee and the
Beneficiaries under this Agreement shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modification and amendments, and all the terms and conditions of
any such amendment shall thereby be deemed to be part of the terms and conditions of this Agreement
for any and all purposes.



ARTICLE XIV

MISCELLANEOUS PROVISIONS




     14.1 Filing Documents. This Agreement shall be filed or recorded in such office or
offices as the Trustee may determine to be necessary or desirable. A copy of this Agreement and
all amendments thereof shall be maintained in the office of the Trustee and shall be available at
all times during regular business hours for inspection by any Beneficiary or his duly authorized
representative. The Trustee shall file or record any amendment of this Agreement in the same
places where the original Agreement is filed or recorded. The Trustee shall file or record any
instrument which relates to any change in the office of the Trustee in the same places where the
original Agreement is filed or recorded.



     14.2 Intention of Parties to Establish Trust. This Agreement is not intended to
create, and shall not be interpreted as creating, a corporation, association, partnership, or joint
venture of any kind for purposes of federal income taxation or for any other purpose.



     14.3 Beneficiaries Have No Rights or Privileges as Shareholders of the Company.
Except as expressly provided in this Agreement or under applicable law, the Beneficiaries (by their
vote with respect to the Plan and/or their acceptance of any distributions made to them pursuant to
this Agreement) shall have no rights or privileges attributable to their former status as
shareholders of the Company.



     14.4 Laws as to Construction. This Agreement and the trust created hereby shall be
governed by and construed in accordance with the laws of the Commonwealth of Virginia. The
Trustee, the Company and the Beneficiaries (by their acceptance of any distributions made to them
pursuant to this Agreement) consent and agree that this Agreement shall be governed by and
construed in accordance with such laws. The Trustee may amend this Agreement to provide for the
creation of a new trust governed by the laws of another jurisdiction to which the Retained Assets
and Liabilities shall be assigned.



     14.5 Severability. In the event any provision of this Agreement or the application
thereof to any Person or circumstances



 









 




shall be finally determined by a court of proper jurisdiction to be invalid or unenforceable
to any extent, the remainder of this Agreement, or the application of such provision to persons or
circumstances other than those as to which it is held invalid or unenforceable, shall not be
affected thereby, and each provision of this Agreement shall be valid and enforced to the fullest
extent permitted by law.




     14.6 Notices. Any notice or other communication by the Trustee to any Beneficiary
shall be deemed to have been sufficiently given, for all purposes, if deposited, postage prepaid,
in the post office or letter box addressed to such Person at his address as shown in the records of
the Trust.



     All notices and other communications hereunder shall be in writing and shall be deemed to have
been duly given if delivered personally or sent telecopier to the parties at the following
addresses or at such other addresses as shall be specified by the parties by like notice:




	 	(a)	 	If to the Trustee:
	 
	 	 	 	T REIT Liquidating Trust

1551 N. Tustin Avenue, Suite 200

Santa Ana, CA 92705

Attention: Trustee

Facsimile: (714) 667-0315
	 
	 	(b)	 	If to the Company:
	 
	 	 	 	T REIT, Inc.

1551 N. Tustin Avenue, Suite 200

Santa Ana, CA 92705

Attention: Chief Executive Officer

Facsimile: (714) 667-0315





     14.7 Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be an original, but such counterparts shall together constitute one and the same
instrument.



 









 





     IN WITNESS WHEREOF, T REIT, Inc. has caused this Agreement to be executed by an authorized
officer, and the Trustee herein has executed this Agreement, effective this 16th day of
July, 2007.



	 	 	 	 	 
	 	T REIT, INC.

 	 
	 	By:  	/s/ Jack R. Maurer
 	 
	 	 	Name:  	Jack R. Maurer 	 
	 	 	Title:  	Chief Executive Officer & President 	 
	 
	 	 	 
	 	  	                            /s/ W. Brand Inlow
 	 
	 	 	Name:  	W. Brand Inlow 	 
	 	 	Title:  	Trustee 	 



 









 






	 	 	 	 	 



Schedule A





     For his services, the Trustee shall receive $250 per month payable on the first day of each
month.



 









 





Schedule B




T REIT CONGRESS CENTER MEMBER, LLC

T REIT AMBEROAKS GP, LLC

T REIT TITAN PLAZA GP, LLC