AGREEMENT AND GRANT OF POWER OF ATTORNEY Pool #3

Transcription

1 AGREEMENT AND GRANT OF POWER OF ATTORNEY Pool #3 This Agreement and Grant of Power of Attorney (this Agreement ) is entered into between (the Bondholder ) and the American Bondholder Foundation, LLC, a Delaware limited liability company (the ABF ), effective as of, Hiring of the ABF. (a) The Bondholder hereby hires the ABF to provide organizational, advocacy, public relations and negotiating services to the Bondholder in connection with the claim of the Bondholder for payments of all amounts due to the Bondholder as the holder of the defaulted Chinese government bonds identified on Exhibit A attached hereto (the Bonds ). The ABF agrees to provide such services. The ABF will act as the Bondholder s representative in seeking payment for the Bondholder of all amounts due under the Bonds. (b) All decisions made by the ABF during the term of this Agreement with respect to the Bonds will be binding on the Bondholder, provided, however, that the ABF shall not have any authority to: (i) obligate the Bondholder to pay any monies other than the disbursement of proceeds received as payment on the Bonds to the persons and for the purposes described in this Agreement; or (ii) to reach any agreement, settlement or compromise of the Bondholder s claims for payment on the Bonds or to provide releases and waivers with any obligors or prospective obligors of the Bonds, unless any such agreements, settlements or compromises or releases or waivers treat all holders of other defaulted bonds issued by the Chinese government prior to 1950 for which the ABF has similar authority in a pro rata manner based on the similarity of issues, series and amounts of such bonds owned by such other holders. 2. Power of Attorney. The Bondholder hereby makes, constitutes and appoints the ABF and its designees, separately and individually, with full power of substitution and resubstitution, the Bondholder s agent and true and lawful attorney-in-fact to act on behalf of the Bondholder on all matters with respect to the Bonds, including the authority: (a) to negotiate, reach agreements for the payment, settlement and/or compromise of the Bondholder s claims for payment on the Bonds and to negotiate, communicate, deal, reach agreement, settle and compromise, release and grant waivers to any obligors or prospective obligors (including the People s Republic of China and the Republic of China (Taiwan)) of the Bonds (provided that any such agreements, settlements or compromises or releases or waivers treat all holders of other defaulted bonds issued by the Chinese government prior to 1950 for which the ABF has similar authority in a pro rata manner based on the similarity of issues, series and amounts of such bonds owned by such other holders) and to communicate, negotiate and reach agreements with intermediaries such as the Bondholders Protective Council and the United States Government and agencies, agents and affiliates thereof; (b) to sign, execute, endorse, certify, acknowledge, file and record any documents, agreements, certificates or other instruments (including an endorsement, delivery, assignment and surrender of the Bonds) related to the claim of bondholders for payments due under the Bonds, including any settlement or release of the Bondholder s claims thereunder and the DC01/MCDOJ/

2 disbursement of any proceeds to which the Bondholder is entitled in accordance with this Agreement; provided, however, that the ABF shall not have any authority to obligate the Bondholder to pay any monies other than the disbursement of proceeds received as payment on the Bonds to the persons and for the purposes described in this Agreement; and (c) the ABF. to engage and hire legal counsel, accountants and other professionals selected by The Bondholder authorizes such attorney-in-fact to take any further action which such attorneyin-fact shall consider necessary or advisable in connection with the foregoing, hereby giving such attorney-in-fact full power and authority to act to the same extent as if the undersigned were personally present, and hereby ratifying and confirming all that such attorney-in-fact shall lawfully do or cause to be done by virtue hereof. The power of attorney granted hereby is a special power of attorney coupled with an interest, is irrevocable, and shall survive the death, insanity or incapacity of the Bondholder. Execution of any document by the ABF or its designees, as attorney-in-fact for the Bondholder, shall be deemed by third parties to be conclusive evidence of the authority of either of the ABF or its designees to so act. 3. Engagement of Consultants, Financial Institutions, Professionals and Intermediaries; Limitation of Liability; Expenses. (a) In connection with the rendering of services by the ABF pursuant to this Agreement, it has and/or will become necessary for the ABF to retain and engage consultants, advisors, financial institutions, intermediaries and professionals to provide services to the ABF and the Bondholder. Financial institutions and accounting firms or others may be engaged by the ABF on behalf of the Bondholder to provide custodial, escrow, financial, advisory or administrative services to the ABF and/or the Bondholder. (b) The Bondholder acknowledges that it is a customary practice for such financial institutions and accounting firms and other similar professionals, advisors, or institutions serving in such custodial, administrative, financial, advisory or escrow capacities to obtain contractual limitations on and/or releases of potential liability to which they might otherwise be subject from the recipients or beneficiaries of such services. Accordingly, the Bondholder hereby releases any financial institution (including but not limited to banks and trust companies), accounting firm, advisor, or other person or entity which provides custodial, escrow, financial, advisory or administrative services to the ABF and/or the Bondholder from any liability or damages to the Bondholder arising from, related to or with respect to any custodial, escrow, financial, advisory or administrative services provided to the ABF and/or the Bondholder, except for any liability or damages to the Bondholder caused by the intentional misconduct or gross negligence of such financial institution (including but not limited to banks and trust companies), accounting firm, advisor, or other person or entity. The Bondholder reaffirms that the grant of the power of attorney created by Bondholder in this Agreement in favor of the ABF includes the authority and power of the ABF or its designees to enter into contracts, including contracts consistent with the preceding release of liability, with financial institutions, accounting firms, advisors and other DC01/MCDOJ/

3 similar professionals or institutions to provide custodial, administrative, escrow, advisory and/or financial services to the ABF and the Bondholder related to the Bonds and this Agreement. (c) The Bondholder acknowledges that the ABF has incurred and will incur expenses and costs in connection with its performance under and related to this Agreement, including expenses of engaging consultants, financial institutions, intermediaries, advisors and professionals to provide services to the ABF and the Bondholder related to this Agreement and the Bonds. The Bondholder agrees that the ABF is authorized to pay and/or receive reimbursement for all such bona fide expenses and costs in accordance with this Agreement. 4. Pooling of Bonds and Bonds Proceeds. (a) The Bondholder acknowledges that if the ABF is able, on behalf of the Bondholder and other holders of defaulted Chinese government bonds affiliated with the ABF ( Other ABF Bondholders ), to conclude sales, settlements or collections (or otherwise obtain proceeds) of the Bonds and of other defaulted Chinese government bonds owned by Other ABF Bondholders ( Other ABF Bondholders Bonds ), such sales, settlements or collections will likely not be structured as a single sale, settlement and/or collection of all Bonds and all Other ABF Bondholders Bonds. The Bondholder agrees that the ABF is authorized to and shall treat all proceeds received with respect to the Bonds and All Other ABF Bondholders Bonds that are allocable and payable to the Bondholder and Other ABF Bondholders under this Agreement (and similar Agreements and Grant of Power of Attorney with Other ABF Bondholders) as a single aggregated pool of proceeds attributable to all such Bonds and Other ABF Bondholders Bonds. The ABF shall distribute that single aggregated pool of proceeds to and among the Bondholder and the Other ABF Bondholders pro rata based on the relative value of all the bonds owned by Bondholder, on the one hand, and all the Other ABF Bondholders Bonds, on the other hand, taking into account any differences in value related to different issues, issue date, series, coupons, interest rates and principal amount. (For example, all Chinese Government 5% Reorganization Gold Loan of 1913 Bearer Bonds of the same original principal amount with similar numbers of semi-annual interest coupons attached shall be treated as having equal value.) Any good faith determination made by the ABF, based on a professional appraisal, of the relative value of some or all of the bonds owned by the Bondholder and all the Other ABF Bondholders Bonds taking into account differences in value related to different issues, issue date, series, coupons, interest rates and principal amount shall be binding and conclusive on the Bondholder and all Other ABF Bondholders. Such pro rata share for a particular Bondholder determined in accordance with this Section 4 is referred to subsequently as the Bondholder s Pro Rata Share. (b) For purposes of this Agreement: (i) the terms Bondholder and Other ABF Bondholders are subsequently referred to collectively as All ABF Bondholders ; and (ii) the terms Bonds and Other ABF Bondholders Bonds are subsequently referred to collectively as the ABF Pool of Bonds. (c) In the event that the ABF concludes sales, settlements or collections for less than all the ABF Pool of Bonds and determines that it is not reasonably possible to conclude additional sales, settlements or collections of all the remaining ABF Pool of Bonds (the Uncollected Bonds ), then the ABF, in its sole discretion, is authorized to divide, allocate and distribute the Uncollected Bonds, including undivided interests therein, to and among All DC01/MCDOJ/

4 ABF Bondholders pro rata in such manner as the ABF reasonably determines in good faith based on the relative value of the Bondholder s Bonds, on the one hand, and all Other ABF Bondholders Bonds, on the other hand, calculated without regard to whether any particular bondholder s bonds were included in one of the sales, settlements or collections. Any good faith determination made by the ABF shall be binding and conclusive on All ABF Bondholders. (d) Almost all the ABF Pool of Bonds consist of defaulted Chinese Government bonds that are Chinese Government 5% Reorganization Gold Loan of 1913 Bearer Bonds (the 1913 Gold Bonds ). The remaining ABF Pool of Bonds consist of a small number of defaulted Chinese Government bonds that are not Chinese Government 5% Reorganization Gold Loan of 1913 Bearer Bonds (the Non-1913 Gold Bonds ). In order to facilitate the administration of the sale, settlement and collection of the ABF Pool of Bonds, the ABF is further authorized to apply a portion of the proceeds received from any sales, settlements or collections of any bonds in the ABF Pool of Bonds that are 1913 Gold Bonds to the purchase of Non-1913 Gold Bonds from any Bondholder who is the owner of such Non-1913 Gold Bonds at such prices as the ABF shall determine in good faith based on a professional appraisal. Such purchases of Non-1913 Gold Bonds shall be conducted on a pro rata basis as proceeds are received from sales, settlements and collections of the 1913 Gold Bonds in relative proportion that the value of the Non-1913 Gold Bonds in the ABF Pool of Bonds bears to the value of the 1913 Gold Bonds in the ABF Pool of Bonds. (Such valuation shall be made in good faith by the ABF, based on a professional appraisal, and shall be conclusively binding on All ABF Bondholders.) A Bondholder who is the owner of Non-1913 Gold Bonds hereby irrevocably agrees to sell such Non-1913 Gold Bonds to the ABF at the price offered by the ABF, as determined by the ABF. The result of the above will be to segregate the relatively few existing Non-1913 Gold Bonds from the 1913 Gold Bonds in the ABF Pool of Bonds and provide for the owners of the Non-1913 Gold Bonds to receive distributions of sales, settlements or collections concurrently and pro rata with all other bondholders based on the respective valuation of the 1913 Gold Bonds and the Non-1913 Gold Bonds. 5. Disbursements. The Bondholder authorizes, agrees and consents that the aggregate proceeds received on account of the ABF Pool of Bonds (the Proceeds ) shall be distributed to the following persons and entities as follows: (a) fifty percent (50%) of the Proceeds to All ABF Bondholders in accordance with each Bondholder s Pro Rata Share; (b) an additional portion of the Proceeds equal to the charitable contributions made to the not-for-profit charitable limited liability company ABF Charities, LLC, as provided in Section 5(e)(2) below, allocated to All ABF Bondholders in accordance with each Bondholder s Pro Rata Share; (c) five percent (5%) of the Proceeds jointly to Jonna Z. Bianco and Vincent L. Bianco (collectively, the Biancos ) for their services, through the ABF, on behalf of All ABF Bondholders; DC01/MCDOJ/

5 (d) to such persons and entities for transaction costs and expenses, including out of pocket expenses, incurred in connection with the sale, collection or settlement of any of the ABF Pool of Bonds or otherwise in connection with the generation of the Proceeds; and (e) the balance: (1) first, to the ABF, as its sole property for its own account, in an amount equal to five percent (5%) of the Proceeds, then (2) second, to the ABF in its capacity as agent for All ABF Bondholders, the balance of the Proceeds up to a maximum amount equal to twenty-five percent (25%) of the Proceeds as a charitable contribution made on behalf of All ABF Bondholders to ABF Charities, LLC (the not-for-profit charitable limited liability company) (none of the amounts in this Section 5(e)(2) shall be the property of the ABF), then (3) third, if any, the remaining balance to the ABF. The Bondholder authorizes the total payment or other proceeds allocable to the Bondholder s Bonds to be deposited into a trust account established by the ABF or other escrow account designated by the ABF for the benefit of the Bondholder and/or other holders of defaulted Chinese government bonds for which the ABF is serving as attorney-in-fact for distribution in accordance with the allocations described above. 6. Term. This Agreement shall continue until terminated by the ABF or until the Bondholder has received the net proceeds to which the Bondholder is entitled in accordance with the terms of this Agreement. The ABF may terminate this Agreement (by written notice to the Bondholder) if the Bondholder fails to fulfill the Bondholder s obligations under this Agreement, in which event the Bondholders shall remain obligated to pay and disburse any proceeds received or payments made on account of the Bondholder s Bonds in the manner set forth above in Section 5 ( Disbursements ) of this Agreement, including the five percent (5%) payment jointly to the Biancos. The ABF may also terminate this Agreement (by written notice to the Bondholder) if the ABF determines that additional actions have no prospect of enhancing the likelihood of any material payments on the Bonds, in which event all of the Bondholder s obligations under this Agreement shall terminate. The Bondholder shall have no right to terminate this Agreement except upon a material and continuing breach by the ABF of its material obligations hereunder and after the ABF has failed to materially cure sure breach following receipt by them of written notice by the Bondholder of an alleged breach of this Agreement by the ABF. 7. Acknowledgement of Risk. The Bondholder acknowledges that the prospects for recovery of payments with respect to the Bonds are uncertain and speculative and that entering into this Agreement will not assure any receipt by the Bondholder of payments respecting the Bonds. 8. Delivery of Bonds. If requested by the ABF, Bondholder will deliver the original of the Bonds that Bondholder owns to the ABF or to such third party escrow agent as is designated by the ABF for safekeeping. The Bondholder will be responsible for risk of shipment. Upon the conclusion of matters respecting the Bonds or any earlier permitted termination of this Agreement, the ABF will arrange to remit to the Bondholder any net proceeds (after disbursements in accordance with this Agreement) to which the Bondholder is entitled attributable to the Bondholder s Bonds or arrange to return to the Bondholder any Bonds delivered by Bondholder. DC01/MCDOJ/

6 9. Representations by Bondholder. The Bondholder represents that Bondholder is the true and lawful owner of the Bonds listed on the attached Exhibit A free and clear of any liens or encumbrances and that to the Bondholder s knowledge the Bonds listed on the attached Exhibit A are authentic, have not been altered and are not a forgery. 10. Arbitration. In the event of any dispute arising hereunder, the parties agree to first attempt in good faith to resolve such dispute within sixty (60) days upon notice to the other party. In the event the parties are unable to resolve their dispute, the parties agree to submit all disputes to arbitration, which determinations shall be final and binding on the parties. Any arbitration proceeding shall be held in Nashville, Tennessee and be conducted in accordance with the rules of the American Arbitration Association. 11. Other. The Bondholder acknowledges that the ABF will not provide legal services to the Bondholder. This Agreement is governed by and shall be construed in accordance with the laws of the State of Tennessee. No amendment or waiver of this Agreement shall be effective unless signed by all the parties hereto. This Agreement shall be binding on the heirs, executors, estate and successors and assigns of this Agreement. The Bondholder shall not assign, give away or transfer or grant any security interest in the Bonds to any person or entity unless such assignee, donee, transferee or leinholder shall first acknowledge the existence of this Agreement and agree in writing to be bound by it. Any notice to the ABF shall be sent by a commercially recognized overnight courier service or by U.S. Mail (certified and return receipt requested) to 2840 Glasscock Road, Lewisburg, TN or such other address as shall be designed in writing by the ABF to the Bondholder. Such delivery will be effective when received by the ABF. Any notice required under this Agreement to be sent to the Bondholders shall be delivered by a commercially recognized overnight courier service or by U.S. Mail (certified and return receipt requested) to the Bondholder s address set forth on the signature page hereto or such other address as shall be designed in writing by the Bondholder to the ABF. [remainder of this page intentionally left blank] DC01/MCDOJ/

7 IN WITNESS WHEREOF, the ABF and the Bondholder have entered into this Agreement as of the date set forth above. THE ABF: THE AMERICAN BONDHOLDERS FOUNDATION, LLC By: Name: Jonna Z. Bianco Title: President THE BONDHOLDER: Signature of Bondholder: Name of Bondholder: Address of Bondholder: Soc. Sec. # of Bondholder: Phone # of Bondholder: Fax # of Bondholder: of Bondholder: ( ) ( ) DC01/MCDOJ/

8 Exhibit A [Itemization of Bonds Owned by Bondholder by Name of Issue, Face Amount and Serial Number] DC01/MCDOJ/

9 POOL #3 SUPPLEMENT TO AGREEMENT AND GRANT OF POWER OF ATTORNEY This Pool #3 Supplement, effective as of, (this Supplement ), is to the Agreement and Grant of Power of Attorney (this Agreement ) is entered into between (the Bondholder ) and the American Bondholder Foundation, LLC, a Delaware limited liability company (the ABF ), effective as of, (the Bondholder Agreement ). Any capitalized terms used but not defined in this Supplement have the respective meanings set forth in the Bondholder Agreement. The Bondholder Agreement is hereby supplemented by adding the following provisions thereto: Administration Fee and Expense Allocations. As additional consideration for the services to be performed by the ABF on behalf of the Bondholder under the Bondholder Agreement, the Bondholder shall pay to the ABF, in cash by certified check or wire transfer of immediately available funds to the ABF s account: (a) on or prior to the effective date of the Bondholder Agreement specified in the preamble thereto (the Effective Date ), a non-refundable administration fee equal to five hundred U.S. dollars ($500); and (b) within fifteen (15) days after each one (1) year anniversary of the Effective Date during the term of the Bondholder Agreement described in Section 6 of the Bondholder Agreement, an expense assessment equal to five hundred U.S. dollars ($500) (each, an Expense Assessment ). The Bondholder agrees and acknowledges that if the Bondholder fails to pay any Expense Assessment to the ABF as provided herein and does not, within fifteen (15) days after written notice thereof has been provided by the ABF to the Bondholder s address set forth in the Bondholder Agreement, cure such failure by making such Expense Assessment payment to the ABF as provided herein, the Bondholder shall, automatically and without any further action by the parties, forfeit to the ABF, as liquidated damages for the Bondholder s breach hereof and not a penalty, all right, title and interest of the Bondholder in and to all of the Bondholder s Bonds held by the ABF pursuant to the Bondholder Agreement. [remainder of this page intentionally left blank] DC01/MCDOJ/

10 IN WITNESS WHEREOF, the ABF and the Bondholder have entered into this Supplement as of the date set forth above. THE ABF: THE AMERICAN BONDHOLDERS FOUNDATION, LLC By: Name: Jonna Z. Bianco Title: President THE BONDHOLDER: Printed Name Signature Address City, State Zip Country Home Telephone Cell Telephone Work Telephone Address DC01/MCDOJ/