III
DISBURSEMENTS
SECTION 3.01. DISBURSEMENTS TO BERKSHIRE.
THE COMPANY SHALL DELIVER TO THE
TRUSTEE A SCHEDULE (THE "PAYMENT SCHEDULE") THAT INDICATES THE AMOUNTS PAYABLE
BY THE COMPANY IN RESPECT OF THE BERKSHIRE PREFERRED STOCK AND THE DATES FOR
PAYMENTS OF SUCH AMOUNTS.
THE TRUSTEE SHALL, ON BEHALF OF THE COMPANY, DISBURSE
MONEYS FROM THE TRUST TO BERKSHIRE IN ACCORDANCE WITH THE PAYMENT SCHEDULE.
THE
TRUSTEE SHALL HAVE NO RESPONSIBILITY TO ASCERTAIN WHETHER THE PAYMENT SCHEDULE
COMPLIES WITH THE TERMS OF THE BERKSHIRE PREFERRED STOCK OR OF ANY APPLICABLE
LAW.
THE COMPANY SHALL BE RESPONSIBLE FOR ANY FEDERAL OR STATE INCOME TAX
REPORTING OR WITHHOLDING ARISING OUT OF ANY TRANSACTIONS RELATING TO THE TRUST.
If the principal of the Trust, and any earnings thereon, are not sufficient to
make payments to Berkshire in accordance with the Payment Schedule, the Trustee
shall notify the Company.
SECTION 3.02. LIMITATIONS.
THE TRUSTEE SHALL NOT BE REQUIRED TO MAKE ANY
DISBURSEMENT IN EXCESS OF THE NET REALIZABLE VALUE OF THE ASSETS OF THE TRUST AT
THE TIME OF THE DISBURSEMENT.
ARTICLE IV
INSOLVENCY OF THE COMPANY
SECTION 4.01. INSOLVENCY.
THE TRUSTEE SHALL CEASE DISBURSEMENT OF FUNDS TO
BERKSHIRE IF THE TRUSTEE HAS BECOME AWARE OF THE COMPANY'S INSOLVENCY IN
ACCORDANCE WITH THE PROCEDURES DESCRIBED IN SECTION 4.02.
THE COMPANY SHALL BE
CONSIDERED "INSOLVENT" FOR PURPOSES OF THIS AGREEMENT IF (A) THE COMPANY IS
UNABLE TO PAY ITS DEBTS AS THEY BECOME DUE OR (B) THE COMPANY IS SUBJECT TO A
PENDING PROCEEDING AS A DEBTOR UNDER THE UNITED STATES BANKRUPTCY CODE.
SECTION 4.02. PROCEDURES.
AT ALL TIMES DURING THE CONTINUANCE OF THE TRUST, THE
PRINCIPAL AND INCOME OF THE TRUST SHALL BE SUBJECT TO CLAIMS OF GENERAL
CREDITORS OF THE COMPANY UNDER FEDERAL AND STATE LAW AS SET FORTH BELOW.
(A) THE BOARD OF DIRECTORS AND THE PRESIDENT OF THE COMPANY SHALL HAVE THE DUTY
TO INFORM THE TRUSTEE IN WRITING OF THE COMPANY'S INSOLVENCY.
IF A PERSON
CLAIMING TO BE A CREDITOR OF THE COMPANY ALLEGES IN WRITING TO THE TRUSTEE THAT
THE COMPANY HAS BECOME INSOLVENT, THE TRUSTEE SHALL DETERMINE WHETHER THE
COMPANY IS INSOLVENT AND, PENDING SUCH DETERMINATION, THE TRUSTEE SHALL
DISCONTINUE DISBURSEMENTS OF FUNDS TO BERKSHIRE.
(B) UNLESS THE TRUSTEE HAS ACTUAL KNOWLEDGE OF THE COMPANY'S INSOLVENCY, OR HAS
RECEIVED NOTICE FROM THE COMPANY OR A PERSON CLAIMING TO BE A
CREDITOR ALLEGING THAT THE COMPANY IS INSOLVENT, THE TRUSTEE SHALL HAVE NO DUTY
TO INQUIRE WHETHER THE COMPANY IS INSOLVENT.
THE TRUSTEE MAY IN ALL EVENTS RELY
ON SUCH EVIDENCE CONCERNING THE COMPANY'S SOLVENCY AS MAY BE FURNISHED TO THE
TRUSTEE AND THAT PROVIDES THE TRUSTEE WITH A REASONABLE BASIS FOR MAKING A
DETERMINATION CONCERNING THE COMPANY'S SOLVENCY; PROVIDED, HOWEVER, THAT THE
TRUSTEE MAY IN ALL EVENTS RELY CONCLUSIVELY ON THE ASSERTION OF THE COMPANY AS
TO WHETHER IT IS OR IS NOT INSOLVENT.
(C)
IF AT ANY TIME THE TRUSTEE HAS DETERMINED THAT THE COMPANY IS INSOLVENT,
THE TRUSTEE SHALL DISCONTINUE DISBURSEMENTS OF FUNDS TO BERKSHIRE AND SHALL