Exhibit 10.2

 

 

FSP PHOENIX TOWER CORP.

AMENDMENT NUMBER 1 TO

LIQUIDATING TRUST AGREEMENT

This Amendment Number 1 to LiquidatingTrust Agreement made this 28th day of March, 2013 (the “Effective Date”), by FSP Property Management LLC, a Massachusettslimited liability company (hereinafter referred to as the “Trustee”), on behalf of the former holders of the Corporation’scapital stock, as grantors, and FSP Phoenix Tower Corp., a Delaware corporation (the “Corporation”).

WHEREAS, the board of directors of theCorporation and the Corporation’s stockholders have approved the dissolution of the Corporation and the winding up of theCorporation’s affairs, the satisfaction of any outstanding obligations to its creditors and the distribution of the remainingassets (the “Assets”), if any, of the Corporation to its stockholders in accordance with the priorities specified inthe Corporation’s Certificate of Incorporation, as amended to date;

WHEREAS, in connection with the dissolutionof the Corporation, the Trustee and the Corporation entered into that certain Liquidating Trust Agreement, dated December 10, 2012(the “Liquidating Trust Agreement”), and, pursuant to the Liquidating Trust Agreement established a liquidating trustin order to facilitate the winding up of the Corporation’s affairs;

WHEREAS, Article V, Section 7 of theLiquidating Trust Agreement provides for the authority of the Trustee to make non-material amendments to the Liquidating TrustAgreement as necessary to clarify such agreement or enable the Trustee to effectuate the terms of such agreement;

WHEREAS, the Trustee wishes to make thefollowing non-material amendments to the Liquidating Trust Agreement to clarify such agreement or enable the Trustee to effectuatethe terms of such agreement; and

WHEREAS, capitalized terms used in thisAmendment Number 1 and not otherwise defined shall have the respective meanings ascribed to such term in the Liquidating TrustAgreement.

In consideration of the foregoing, theLiquidating Trust Agreement is amended as follows:

1.                 Article II, Section 7 of the Liquidating Trust Agreement shall be deleted and replaced in its entirety with the followingso that Article II, Section 7 shall read as follows:

“The Trustee shall keep an accounting of receiptsand distributions. Without limiting the foregoing:

 

 

(a)     As soon as practicable after the Effective Date,the Trustee will deliver, or cause to be delivered, to each Beneficiary a notice indicating such Beneficiary’s beneficialinterest in the Trust and the contact details of the Trustee. As soon as practicable after the end of each tax year and after thedate on which the Trust terminates, but in any event within 90 days after each such event, the Trustee shall submit a written reportand account to the Beneficiaries showing (i) the Assets and Liabilities of the Trust at the end of such taxable year or date oftermination and the receipts and disbursements of the Trust for such taxable year or period ending on the date of termination,prepared in accordance with generally accepted accounting principles, (ii) any changes in the Trust Assets and Liabilities thathave not been previously reported, and (iii) any action taken by the Trustee in the performance of its duties under this Agreementthat it has not previously reported, and which, in its opinion, materially affects the Trust Assets or Liabilities.

 

(b) Whenever a material event relating to the Trust Assetsoccurs, the Trustee shall, within a reasonable period of time after such occurrence, prepare and issue a publicly available reportdescribing such event. The occurrence of a material event need not be reported if an annual report pursuant to Section 2.7(a) willbe issued at approximately the same time that a report pursuant to this Section 2.7(b) would be issued and such annual report describesthe material event as it would be discussed in an interim report. The occurrence of a material event will be determined solelyby the Trustee or as may be required by the rules and regulations promulgated by the United States Securities and Exchange Commission.”

 

2.             Article III, Section 3 shall be deleted and replaced in its entirety with the following so that Article III, Section 3 shallread as follows:

“3.     No Beneficiary shallhave power to dispose of his, her or its beneficial interest in the Trust, except by will, intestate succession or operation oflaw, and any beneficial interest transferred by will, intestate succession or operation of law will thereafter be subject to suchtransfer restrictions. Neither the Trustee, the Trust, the Corporation nor any of their respective affiliates will take any actionsto facilitate or encourage any trading in the beneficial interests in the Trust or in any instrument or interest tied to the valueof the beneficial interests in the Trust.”

 

 

 

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IN WITNESS WHEREOF, we have executedthis Trust Agreement, this 28th day of March, 2013

FSP PROPERTY MANAGEMENT LLC,

as Trustee and not individually

By:     /s/ JanetP. Notopoulos                   

Name: Janet P. Notopoulos

Title: President

FSP PHOENIX TOWER CORP.

(for purposes of Section 2 above)

By:      /s/George J. Carter                 

Name: George J. Carter

Title: President