IS DEFINED IN PARAGRAPH D
BELOW), UNLESS CONSENTED TO IN WRITING BY JPMORGAN, AS LENDER.
D.
JPMORGAN, INDIVIDUALLY AS A LENDER, PREVIOUSLY ENTERED INTO A
DEMAND PROMISSORY NOTE AND AN AMENDED AND RESTATED PROMISSORY NOTE
(COLLECTIVELY, THE "NOTE") FOR UP TO AN AGGREGATE PRINCIPAL AMOUNT OF THREE
MILLION DOLLARS ($3,000,000), WITH THE TRUST AS THE BORROWER, FOR USE BY THE
TRUSTEE TO PAY THE TRUST'S OUTSTANDING EXPENSES, SECURED BY TRUST ASSETS.
SUCH
NOTE WAS NECESSARY TO MAINTAIN THE TRUST OPERATIONS THROUGH AT LEAST THE COURT
APPROVAL DATE.
AS PART OF THIS AGREEMENT, JPMORGAN AGREES THAT THE SUCCESSOR OR
TEMPORARY TRUSTEE, IF ONE IS APPOINTED BY THE COURT AFTER JPMORGAN'S
RESIGNATION, MAY DRAW DOWN ANY REMAINING AVAILABLE FUNDS UNDER THE NOTE, FOR THE
TRUST'S OPERATING EXPENSES, AT
4
THE SUCCESSOR OR TEMPORARY TRUSTEE'S DISCRETION.
JPMORGAN HAS AGREED TO EXTEND
THE STATED MATURITY DATE OF THE NOTE FROM DECEMBER 31, 2007 UNTIL THE EARLIER OF
1) DECEMBER 31, 2009; 2) THIRTY-ONE DAYS AFTER THE TRUST'S RECEIPT OF ANY
SETTLEMENT PROCEEDS, RECOVERY, OR JUDGMENT IN THIS LITIGATION; 3) FINAL
LIQUIDATION OF THE TRUST'S ASSETS; OR 4) SUCH OTHER EVENTS DESCRIBED IN THE
NOTE.
THE PARTIES ACKNOWLEDGE AND AGREE THAT ANY AND ALL FUNDS DISBURSED
PURSUANT TO THE NOTE ARE SECURED BY THE TRUST ASSETS, INCLUDING, WITHOUT
LIMITATION, ANY SETTLEMENT PROCEEDS, RECOVERY, OR JUDGMENT IN THIS LITIGATION.
THE PARTIES ALSO ACKNOWLEDGE AND AGREE THAT IN NO EVENT SHALL JPMORGAN BE
REQUIRED TO ADVANCE ANY ADDITIONAL FUNDS TO THE TRUST OTHER THAN THE FUNDS WHICH
ARE THE SUBJECT OF THE NOTE.
COPIES OF THE AMENDED AND RESTATED PROMISSORY NOTE
AND FIRST AMENDMENT TO PLEDGE AGREEMENT THAT INCORPORATE THE ABOVE AGREEMENTS
ARE ATTACHED HERETO AS EXHIBITS 2 AND 3, RESPECTIVELY.
THE PARTIES AGREE THAT,
IF THE COURT APPROVES THIS AGREEMENT AS REQUIRED UNDER SECTION 2 HEREIN BY
JANUARY 14, 2008, THE PRINCIPAL OUTSTANDING BALANCE ON THE NOTE SHALL NOT EXCEED
$2.2 MILLION AS OF THAT DATE, LEAVING AT LEAST $800,000 AVAILABLE FOR USE BY THE
SUCCESSOR OR TEMPORARY TRUSTEE, SUBJECT TO THE TERMS OF THE NOTE.
E.
THE AGREEMENTS CONTAINED IN THIS SECTION SHALL SERVE AS FURTHER
CONSIDERATION FOR THE EXECUTION OF THIS AGREEMENT AND AS FULL SATISFACTION OF
ALL CLAIMS RELEASED BY THE PARTIES AS DESCRIBED HEREIN.
2.
CONDITIONS PRECEDENT.
THE PARTIES AGREE THAT THIS AGREEMENT AND
THEIR RESPECTIVE OBLIGATIONS HEREUNDER SHALL BE EFFECTIVE ONLY UPON THE
OCCURRENCE OF THE FOLLOWING CONDITIONS PRECEDENT OR UPON EXPRESS WRITTEN WAIVER
OF SUCH CONDITIONS PRECEDENT BY ALL PARTIES:
A.
WITHIN FIVE DAYS OF THE EXECUTION OF THIS AGREEMENT BY ALL
PARTIES, THE PARTIES SHALL SEEK COURT APPROVAL OF THIS AGREEMENT BY FILING A
JOINT MOTION TO APPROVE SETTLEMENT AGREEMENT (THE "MOTION"), ALONG WITH A COPY
OF THIS AGREEMENT AND A PROPOSED ORDER GRANTING THE MOTION.
B.
THE PARTIES SHALL REQUEST THE COURT TO SET A HEARING ON THE
MOTION TO OCCUR NO FEWER THAN THIRTY DAYS AFTER THE TRUSTEE PROVIDES NOTICE
THEREOF TO THE UNITHOLDERS.
C.
THE TRUSTEE SHALL PROVIDE NOTICE OF THIS AGREEMENT AND THE
HEARING