Liquidating Trust Agreement

LIQUIDATING TRUST AGREEMENT


This Liquidating Trust Agreement (the "Trust Agreement"), dated as of December 31, 2003 by and among HIGH SPEED ACCESS CORP., a Delaware corporation (the "Company"), and JOHN G. HUNDLEY, an individual resident of the Commonwealth of Kentucky (the "Trustee" or "Liquidating Trustee"), executed in connection with the Company's Plan of Dissolution and Liquidation dated November 25, 2002 (as amended, modified and supplemented from time to time, the "Plan"). Capitalized terms used in this Trust Agreement and not otherwise defined herein shall have the meanings ascribed to them in the Plan.


W I T N E S S E T H


WHEREAS, the Company has elected to wind up its affairs and liquidate in accordance with the Plan recommended by its Board of Directors and approved by the stockholders of the Company on November 25, 2002;


WHEREAS, the Plan provides for the sale of substantially all of the Company's assets, other than, among other things, the Liquidating Trust Assets (defined below);


WHEREAS, the Liquidating Trust is created pursuant to, and to effectuate certain provisions of, the Plan and to hold the Liquidating Trust Assets;


WHEREAS, the Liquidating Trust is intended to qualify as a liquidating trust within the meaning of Treasury Regulations Section 301.7701-4(d); and


WHEREAS, the Liquidating Trust is established for the sole purpose of liquidating its assets for the benefit of the stockholders of the Company as of December 31, 2003 (collectively, the "Beneficiaries"), in accordance with Treasury Regulations Section 301.7701-4(d), with no objective or authority to continue or engage in the conduct of a trade or business except to the extent reasonably necessary to, and consistent with, the liquidating purpose of this Liquidation Trust and the Plan;


NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements contained herein and in the Plan, the Company and the Liquidating Trustee agree as follows:


ARTICLE 1


ESTABLISHMENT OF THE LIQUIDATING TRUST


1.1 Establishment of Liquidated Trust. Pursuant to the Plan, the Company and the Liquidating Trustee hereby establish the Liquidating Trust on behalf of the Beneficiaries. The Liquidating Trustee agrees to accept and hold the Liquidating Trust Assets in trust for the Beneficiaries subject to the terms of this Trust Agreement.


1.2 Purpose of the Liquidating Trust. The Liquidating Trust shall be established for the sole purpose of liquidating the Liquidating Trust Assets in accordance with Treasury Regulations Section 301.7701-4(d), with no objective to continue or engage in the conduct of a trade or business. Accordingly, the Liquidating Trustee shall, in an expeditious but orderly manner, liquidate and convert to Cash the Liquidating Trust Assets, settle or otherwise pay any liabilities of or claims against the Liquidating Trust Assets, make a Final Liquidation Payment to Beneficiaries upon completion of the statutory period for the dissolution on the Company under Delaware law, and otherwise settle the affairs of the Company and distribute any remaining Liquidating Trust Assets in accordance with the Plan.


1.3 Transfer of Assets and Rights to the Liquidating Trustee.


(a) As of 11:59:59 A.M., Eastern Standard Time, December 31, 2003 (the "Effective Time and Date"), the Company hereby transfers, assigns, and delivers to the Liquidating Trustee, (i) all of its right, title, and interest in the Liquidating Trust Assets free and clear of any lien or Claim in such property of any other Person or entity except as otherwise provided in the Plan, (ii) all of their rights with respect to the Liquidating Trust Assets including attorney-client privilege and work product and hereby waive their right and the right of any legal, financial or other advisors to assert such rights as a defense or otherwise, and the Liquidating Trustee hereby assumes and agrees that all such Liquidating Trust Assets will be transferred to the Liquidating Trust free and clear of any and all liabilities except to the extent otherwise provided in the Plan.


(b) On or prior to the Effective Time and Date, the Company shall deliver or cause to be delivered to the Liquidating Trustee any and all documents required in connection with the administration of any known or existing Claims (including those maintained in electronic format and original documents) whether held by the Company, their agents, advisors, attorneys, accountants or any other professional hired by the Company and provide access to such employees of the Company, their agents, advisors, attorneys, accountants or any other professional hired by the Company with knowledge of matters relevant to the Claims.


(c) At any time and from time to time on and after the Effective Time and Date, the Company agrees (i) at the reasonable request of the Liquidating Trustee to execute and deliver any instruments, documents, books, and records (including those maintained in electronic format and original documents as may be needed), and (ii) take, or cause to be taken, all such further action as the Liquidating Trustee may reasonably request in order to evidence or effectuate the transfer of the Liquidating Trust Assets to the Liquidating Trust and consummation of the transactions contemplated hereby and by the Plan and to otherwise carry out the intent of the parties hereunder and under the Plan.


1.4 Title to Liquidating Trust Assets.


(a) The transfer of the Liquidating Trust Assets to the Liquidating Trust shall be made by the Company for the benefit and on behalf of the Beneficiaries. In this regard, the Liquidating Trust Assets will be treated for tax purposes as being transferred by the Company to the Beneficiaries, and then by such holders to the Liquidating Trust in exchange for interests in the Liquidating Trust (the "Liquidating Trust Interests") for the benefit of such Beneficiaries in accordance with the Plan. Upon the transfer of the Liquidating Trust Assets, the Liquidating Trustee shall succeed to all of the Company' right, title and interest in the Liquidating Trust Assets and the Company will have no further interest in or with respect to the Liquidating Trust Assets or this Liquidating Trust.


(b) For all federal income tax purposes, all parties (including, without limitation, the Company, the Liquidating Trustee, and the Beneficiaries) shall treat the transfer of Liquidating Trust Assets to the Liquidating Trust, as set forth in this Section 1.4 and in accordance with the Plan, as a transfer to the Beneficiaries, followed by a transfer by such Beneficiaries to the Liquidating Trust, and the Beneficiaries of this Liquidating Trust shall be treated as the grantors and owners hereof.


1.5 Reliance. The Liquidating Trustee may rely upon the Company's filed schedules and statements of financial affairs and all other information provided by the Company or its representatives to the Liquidating Trustee concerning Claims filed against the Company, and its reconciliation and documents supporting such reconciliation.


1.6 Governance of the Liquidating Trust. The Liquidating Trust shall be governed by the Liquidating Trustee. The Liquidating Trustee's powers are exercisable solely in a fiduciary capacity consistent with, and in furtherance of, the purposes of this Liquidating Trust and not otherwise.


1.7 Funding of the Liquidating Trust. The Liquidating Trustee may from time to time make withdrawals from the Liquidating Trust Assets in amounts and at times that the Liquidating Trustee, in its sole discretion, deems necessary or appropriate to fund any and all costs and expenses that the Liquidating Trustee and the Liquidating Trust incur subsequent to the Effective Time and Date in accordance with this Trust Agreement and the Plan.


ARTICLE 2


LIQUIDATING TRUST BENEFICIARIES


2.1 Identification of Beneficiaries of Liquidating Trust. The Beneficiaries of the Liquidating Trust are the holders of the Liquidating Trust Interests and shall be recorded and set forth in a register maintained by the Liquidating Trustee expressly for such purpose. All references in this Trust Agreement to the Beneficiaries or the holders of Liquidating Trust Interests shall be read to mean holders of record as set forth in the official register maintained by the Liquidating Trustee and shall not mean any beneficial owner not recorded on such official registry. Unless expressly provided herein, the Liquidating Trustee may establish a record date that it deems practicable for determining the Beneficiaries for a particular purpose. The distribution of Liquidating Trust Interests to the Beneficiaries shall be accomplished as set forth in the Plan.
2.2 Allocation of Beneficial Interests. Each holder of the common capital stock of the Company on the record date established by the Liquidating Trustee (which shall be the close of business on December 31, 2003) is hereby allocated a proportional beneficial share and interest in the Liquidating Trust, subject to any liabilities of and claims against their ratable portion thereof.


2.3 Transferability of Liquidating Trust Interests. The Liquidating Trust Interests shall not be transferable, provided that the Liquidating Trust Interests shall be assignable or transferable by will, intestate succession, or operation of law and that the executor or administrator of the estate of a holder of a Liquidating Trust Interest may mortgage, pledge, grant a security interest in, hypothecate or otherwise encumber, the Liquidating Trust Interests held by the estate of such holder if necessary in order to borrow money to pay estate, succession or inheritance taxes or the expenses of administering the estate of the holder, upon written notice to, and written consent of, the Liquidating Trustee, which consent may not be unreasonably withheld.


2.4 Distribution; Withholding. In the discretion of the Liquidating Trustee and subject to the withholding of property on account of Claims pursuant to the provisions of Article 5 hereof, the Liquidating Trustee shall distribute from the Liquidating Trust to each holder of a Liquidating Trust Interest Cash on hand (including, without limitation, all net Cash income plus all net Cash proceeds from the liquidation of Liquidating Trust Assets, including, without limitation, as Cash for this purpose, all permissible investments described in Section 3.12 below) pro rata in proportion to such holders' respective Liquidating Trust Interests; provided, however, that the Liquidating Trustee shall not be required to make any distributions prior the Final Liquidating Payment on or before December 31, 2005 upon expiration of the Company's statutory period for dissolution under Delaware law. Notwithstanding anything to the contrary herein, prior to making any distribution to holders of Liquidating Trust Interests, the Liquidating Trustee may retain such amounts (i) as are reasonably necessary to meet contingent liabilities and to maintain the value of the Liquidating Trust Assets during liquidation, (ii) to pay reasonable estimated expenses (including, without limitation, any taxes imposed on the Liquidating Trust or in respect of the Liquidating Trust Assets), and (iii) to satisfy other liabilities incurred or assumed by the Liquidating Trust (or to which the Liquidating Trust Assets are otherwise subject), all for the term of the Liquidating Trust and in accordance with this Trust Agreement and the Plan. The Liquidating Trustee may withhold from amounts distributable to any Person any and all amounts, determined in the Liquidating Trustee's reasonable sole discretion, required by any law, regulation, rule, ruling, directive or other governmental requirement.


2.5 Manner of Payment or Distribution. All Distributions made by the Liquidating Trustee to holders of Liquidating Trust Interests shall be payable to the holders of Liquidating Trust Interests of record as of the 10th day prior to the date scheduled for the distribution, unless such day is not a Business Day, then such day shall be the following Business Day (the "Record Date"). If the Distribution shall be in Cash, the Liquidating Trustee shall distribute such Cash by wire, check, or such other method as the Liquidating Trustee deems appropriate under the circumstances.
ARTICLE 3


THE LIQUIDATING TRUSTEE


3.1 Role of the Liquidating Trustee. In furtherance of and consistent with the purpose of the Liquidating Trust and the Plan the Liquidating Trustee shall, for the benefit of the Beneficiaries, (i) have the power and authority to hold, manage, and distribute the liquidating Trust Assets, and (ii) have the power and authority to hold, manage, and distribute the Cash or non - Cash Liquidating Trust Assets obtained through the exercise of its power and authority. In all circumstances, the Liquidating Trustee shall act in the best interests of all Beneficiaries of the Liquidating Trust and in furtherance of the purpose of the Liquidating Trust.


3.2 Authority of Liquidation Trustee. In connection with the administration of the Liquidating Trust, except as set forth in this Trust Agreement, the Liquidating Trustee is authorized to perform any and all acts necessary or desirable to accomplish the purposes of the Liquidating Trust. Without limiting, but subject to, the express purpose of the Liquidating Trustee and to Section 3.3 hereof, the Liquidating Trustee shall be expressly authorized, but shall not be required, to:


(a) hold legal title to any and all rights of the holders of the Liquidating Trust Interests in or arising from the Liquidating Trust Assets, including, without limitation, collecting, receiving any and all money and other property belonging to the Liquidating Trust;


(b) protect and enforce the rights to the Liquidating Trust Assets by any method deemed appropriate including, without limitation, by judicial proceedings or pursuant to any applicable bankruptcy, insolvency, moratorium or similar law and general principles of equity;


(c) borrow funds, incur or assume liabilities, and pledge Liquidating Trust Assets on behalf of the Liquidating Trust in furtherance of or in connection with the Liquidating Trustee's or the Liquidating Trust's duties, powers, authority, and obligations under this Trust Agreement, and determine and satisfy any and all liabilities created, incurred or assumed by the Liquidating Trust;


(d) file, if necessary, any and all tax and information returns with respect to the Liquidating Trust and pay taxes, if any, properly payable by the Liquidating Trust;


(e) pay all expenses and make all other payments relating to the Liquidating Trust Assets;


(f) obtain reasonable insurance coverage with respect to its liabilities and obligations as Liquidating Trustee under this Trust Agreement (in the form of an errors and omissions policy or otherwise);


(g) obtain insurance coverage with respect to real and personal property that may become Liquidating Trust Assets, if any;
(h) retain and pay such counsel and other professionals as the Liquidating Trustee in its sole discretion may select to assist the Liquidating Trustee in its duties, on such terms as the Liquidating Trustee deems appropriate. The Liquidating Trustee may commit the Liquidating Trust to and shall pay such counsel and other professionals reasonable compensation for services rendered and expenses incurred. A law firm or professional shall not be disqualified from serving the Liquidating Trustee solely because of its current or prior retention as counsel or professional to the Company;


(i) retain and pay an independent public accounting firm to perform such reviews and/or audits of the financial books and records of the Liquidating Trust and the Contingency Reserve as may be appropriate in the Liquidating Trustee's sole discretion and to prepare and file any tax returns or informational re ...