Liquidating Trust Agreement

Exhibit 99.2

EXECUTION COPY


LIQUIDATING TRUST AGREEMENT

AGREEMENT AND DECLARATION OF TRUST, dated as of June 10, 2003, by and between Advanced Switching Communications, Inc., a Delaware corporation (the " Company "), and Frederic T. Spindel, individual resident of the State of Maryland ("Trustee").

WHEREAS, the Company's Board of Directors (the " Board ") and the Company's stockholders have approved the voluntary dissolution of the Company pursuant to a Plan of Complete Liquidation and Dissolution (the " Plan ");

WHEREAS, the Plan provides, among other things, that the Board will cause the Company to dispose of all of the assets of the Company, wind up its affairs, pay or adequately provide for the payment of all of its liabilities and distribute to or for the benefit of its stockholders all of the Company's assets, including interests in any liquidating trust established in connection with the complete liquidation of the Company;

WHEREAS, the Plan further provides, among other things, that, in the event that the Board determines that it is not feasible for the Company to pay, or adequately provide for, all debts and liabilities of the Company (including costs and expenses incurred and anticipated to be incurred in connection with the liquidation of the Company) at the time the final liquidating distribution is made, or, if earlier, the latest applicable date to avoid payment by the Company of federal income taxes, or the Board determines that it is not advisable to distribute at such time any of the property then held by or for the account of the Company because the property is not reasonably susceptible of distribution to stockholders or otherwise, the Company may transfer and assign, at such times as is determined by the Company, to a liquidating trust as designated by the Board, all of its then remaining assets and liabilities.

NOW, THEREFORE, in consideration of the premises and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:


ARTICLE I

NAMES AND DEFINITIONS

1.1 Name . The Trust shall be known as the Advanced Switching Communications Liquidating Trust.

1.2 Defined Terms . For all purposes of this instrument, unless the context otherwise requires:

(a) " Affiliate " of any Person means any entity that controls, is controlled by, or is under common control with such Person. As used herein, "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through ownership of voting securities or other interests, by contract or otherwise.


(b) " Agreement " shall mean this instrument as originally executed or as it may from time to time be amended pursuant to the terms hereof.

(c) " Beneficial Interest " shall mean each Beneficiary's proportionate share of the Trust Assets initially determined by the ratio of the number of Shares held of record by the Initial Beneficiary as of the close of business on the Record Date over the total number of Shares issued and outstanding on such Record Date and thereafter shall be determined by the ratio of the number of Units held by such Beneficiary to the total number of Units held by all Beneficiaries.

(d) " Beneficiary " shall mean, initially, each Initial Beneficiary and, thereafter, each Initial Beneficiary who holds Units and each transferee of Units initially held by an Initial Beneficiary and subsequently transferred to such transferee pursuant to and in accordance with the terms and conditions of this Agreement.

(e) " Excluded Assets " shall mean all right, title and interest of the Company in any directors and officers liability insurance policies in force on the date hereof.

(f) " Initial Beneficiary " shall mean each of the Stockholders.

(g) " Liabilities " shall mean all of the Company's unsatisfied debts, claims, liabilities, commitments, suits and other obligations, whether contingent or fixed or otherwise (including, without limitation, any costs and expenses incurred or to be incurred in connection with the liquidation of the Company), including, without limitation, any liabilities or obligations related to the Excluded Assets.

(h) " Person " shall mean an individual, a corporation, a partnership, an association, a joint stock company, a limited liability company, a trust, a joint venture, any unincorporated organization, or a government or political subdivision thereof.

(i) " Record Date " shall mean June 10, 2003.

(j) " Shares " shall mean the shares of common stock, $0.0025 par value per share, of the Company.

(k) " Stockholders " shall mean the holders of record of the outstanding Shares of the Company at the close of business on the Record Date.

(l) " Successor Trustee " shall have the meaning given to that term in Section 10.2.

(m) " Transfer Date " shall mean June 10, 2003.


(n) " Transferred Assets " shall mean all of the Company's right, title and interest in, to and under, all of the Company's assets, including, without limitation, unsold properties, accounts receivable, cash, securities, claims, causes of action, contingent claims and reserves distributed to the Trustee, but excluding the Excluded Assets.

(o) " Trust " shall mean the Trust created by this Agreement.

(p) " Trust Assets " shall mean all the property held from time to time by the Trustee under this Agreement, which initially shall consist of the Transferred Assets, and in addition, shall thereafter include all dividends, distributions, rents, royalties, income, payments and recoveries of claims, proceeds and other receipts of, from, or attributable to any assets held by the Trust, less any of the foregoing utilized by the Trustee to pay expenses of the Trust, satisfy Liabilities or to make distributions to the Beneficiaries pursuant to the terms and conditions hereof.

(q) " Trustee " shall mean the original Trustee under this Agreement and any Successor Trustee thereto, pursuant to and in accordance with the terms of this Agreement.

(r) " Units " shall have the meaning given to such term in Section 3.1(a).


ARTICLE II

GRANT TO AND NATURE OF TRANSFER

2.1 Grant . The Company hereby grants, delivers, releases, assigns and conveys to the Trustee, to be held in trust for the benefit of the Beneficiaries of the Trust, all of the Company's right, title, interest in, to and under, the Transferred Assets, for the uses and purposes stated herein, subject to the terms and provisions set out below, and the Trustee hereby accepts such Transferred Assets, subject to the following terms and provisions. Further, at such future date as the Trustee and the Company may mutually agree, the Company may subsequent to the date hereof, grant, deliver, release, assign and convey to the Trustee, to be held in trust for the benefit of the Beneficiaries of the Trust, all of the Company's right, title, interest in, to and under, the Excluded Assets, for the uses and purposes stated herein, subject to the terms and provisions set out below, and the Trustee hereby agrees to accept such Excluded Assets, subject to the following terms and provisions.

2.2 Purpose of Trust .

(a) The Trust is organized for the sole purpose of winding up the Company's affairs and the liquidation of the Transferred Assets with no objective to continue or engage in the conduct of a trade or business.

(b) It is expected that the Company shall liquidate and dissolve prior to fully winding up its affairs, including, but not limited to, the sale of its remaining properties, the collection of its receivables and the payment of any unsatisfied Liabilities of the Company.


(c) The Transferred Assets granted, assigned and conveyed to the Trustee shall be held in the Trust, and the Trustee will (i) further liquidate the Trust Assets to carry out the purpose of the Trust and facilitate distribution of the Trust Assets, (ii) allocate, protect, conserve and manage the Trust Assets in accordance with the terms and conditions hereof, (iii) complete the winding up of the Company's affairs, (iv) act on behalf of the Beneficiaries, and (v) distribute the Trust Assets in accordance with the terms and conditions hereof.

(d) It is intended that the granting, assignment and conveyance of the Transferred Assets by the Company to the Trustee pursuant to the terms hereof shall be treated for Federal and state income tax purposes as if the Company made such distributions directly to the Stockholders. It is further intended that for Federal, state and local income tax purposes the Trust shall be treated as a liquidating trust under Treasury Regulation Section 301.7701-4(d) and any analogous provision of state or local law, and the Beneficiaries shall be treated as the owners of their respective share of the Trust pursuant to Sections 671 through 679 of the Internal Revenue Code of 1986, as amended (the " Code ") and any analogous provision of state or local law, and shall be taxed on their respective share of the Trust's taxable income (including both ordinary income and capital gains) pursuant to Section 671 of the Code and any analogous provision of state or local law. The Trustee shall file all tax returns required to be filed with any governmental agency consistent with this position, including, but not limited to, any returns required of grantor trusts pursuant to Section 1.671-4(a) of the Income Tax Regulations.

2.3 No Reversion to the Company . In no event shall any part of the Trust Assets revert to or be distributed to the Company.

2.4 Instruments of Further Assurance . Such Persons as shall have the right and power to so act, will, upon reasonable request of the Trustee, execute, acknowledge, and deliver such further instruments and do such further acts as may be necessary or proper to carry out effectively the purposes of this Agreement, to confirm or effectuate the transfer to the Trustee of any property intended to be covered hereby, and to vest in the Trustee and their successors and assigns, the estate, powers, instruments or funds in trust hereunder.

2.5 Payment of Liabilities . The Trustee, in his capacity as Trustee hereunder and not in his individual capacity, hereby assumes all Liabilities and agrees hereafter to cause the Trust to pay, discharge and perform when due all of the Liabilities. Should any Liability be asserted against the Trustee as the transferee of the Trust Assets or as a result of the assumption made in this Section 2.5, the Trustee may use such part of the Trust Assets as may be necessary in contesting any such Liability or in payment thereof, but in no event shall the Trustee, Beneficiaries or employees or agents of the Trust be personally liable, nor shall resort be had to the private property of such Persons, in the event that the Trust Assets are not sufficient to satisfy the Liabilities.

2.6 Incidents of Ownership . The Stockholders shall be the Initial Beneficiaries of the Trust created by this Agreement and the Trustee shall retain only such incidents of legal ownership as are necessary to undertake the actions and transactions authorized herein.


2.7 Notice to Unlocated Stockholders . If the Trustee holds Trust Assets for unlocated Stockholders, due notice shall be given to such Stockholders in accordance with Delaware law.


ARTICLE III

BENEFICIARIES

3.1 Beneficial Interests .

(a) The Beneficial Interest of each Initial Beneficiary shall be determined in accordance with a certified copy of the Company's stockholder list as of the Record Date. The Company's transfer agent will deliver such a certified copy of the Company's stockholder list to the Trustee within a reasonable time after such date. For ease of administration, the Trustee shall express the Beneficial Interest of each Beneficiary in terms of units (" Units "). Each record owner of Shares as of the close of business on the Record Date shall receive one Unit for each Share then held of record. Each record owner of Shares shall have the same pro rata interest in the Trust Assets as such holder's pro rata interest in the aggregate outstanding Shares on the Record Date.

(b) On and after the Transfer Date, all outstanding Shares shall automatically be deemed cancelled. The rights of Beneficiaries in, to and under the Trust Assets and the Trust shall not be represented by any form of certificate or other instrument, and no Beneficiary shall be entitled to such a certificate. The Trustee shall maintain or cause to be maintained a record of the name and address of each Beneficiary and such Beneficiary's aggregate Units in the Trust.

(c) If any conflicting claims or demands are made or asserted with respect to the ownership of any Units, or if there is any disagreement between the transferees, assignees, heirs, representatives or legatees succeeding to all or part of the interest of any Beneficiary resulting in adverse claims or demands being made in connection with such Units, then, in any of such events, the Trustee shall be entitled, at his sole election, to refuse to comply with any such conflicting claims or demands. In so refusing, the Trustee may elect to make no payment or distribution with respect to such Units, or to make such payment to a court of competent jurisdiction or an escrow agent, and in so doing, the Trustee shall not be or become liable to any of such parties for his failure or refusal to comply with any of such conflicting claims or demands or to take any other action with respect thereto, nor shall the Trustee be liable for interest on any funds which it may so withhold. Notwithstanding anything to the contrary set forth in this Section 3.1(c), the Trustee shall be entitled to refrain and refuse to act until either (i) the rights of the adverse claimants have been adjudicated by a final judgment of a court of competent jurisdiction, (ii) all differences have been adjusted by valid written agreement between all of such parties, and the Trustee shall have been furnished with an executed counterpart of such agreement, or (iii) there is furnished to the Trustee a surety bond or other security satisfactory to the Trustee, as they shall deem appropriate, to fully indemnify him as between all conflicting claims or demands.


3.2 Rights of Beneficiaries . Each Beneficiary shall be entitled to participate in the rights and benefits due to a Beneficiary hereunder according to the Beneficiary's Beneficial Interest. Each Beneficiary shall take and hold the same subject to all the terms and provisions of this Agreement. The interest of each Beneficiary hereunder is declared, and shall be in all respects, personal property and upon the death of an individual Beneficiary, the Beneficiary's Beneficial Interest shall pass as personal property to the Beneficiary's legal representative and such death shall in no way terminate or affect the validity of this Agreement. A Beneficiary shall have no title to, right to, possession of, management of, or control of, the Trust Assets except as expressly provided herein. No widower, widow, heir or devisee of any person who may be a Beneficiary shall have any right of dower, homestead, or inheritance, or of partition, or of any other right, statutory or otherwise, in any property forming a part of the Trust Assets but the whole title to all the Trust Assets shall be vested in the Trustee and the sole interest of the Beneficiaries shall be the rights and benefits given to such Persons under this Agreement.

3.3 Limitations on Transfer of Interests of Beneficiaries .

(a) THE BENEFICIAL INTEREST OF A BENEFICIARY MAY NOT BE TRANSFERRED; PROVIDED THAT THE BENEFICIAL 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 BENEFICIARY MAY MORTGAGE, PLEDGE, GRANT A SECURITY INTEREST IN, HYPOTHECATE OR OTHERWISE ENCUMBER, THE BENEFICIAL INTEREST HELD BY THE ESTATE OF SUCH BENEFICIARY IF NECESSARY IN ORDER TO BORROW MONEY TO PAY ESTATE, SUCCESSION OR INHERITANCE TAXES OR THE EXPENSES OF ADMINISTERING THE ESTATE OF THE BENEFICIARY, UPON WRITTEN NOTICE TO, AND WRITTEN CONSENT OF, THE TRUSTEE, WHICH CONSENT MAY NOT BE UNREASONABLY WITHHELD.

(b) Except as may be otherwise required by law, the Beneficial Interests of the Beneficiaries hereunder shall not be subject to attachment, execution, sequestration or any order of a court, nor shall such interests be subject to the contracts, debts, obligations, engagements or liabilities of any Beneficiary, but the interest of a Beneficiary shall be paid by the Trustee to the Beneficiary free and clear of all assignments, attachments, anticipations, levies, executions, decrees and sequestrations and shall become the property of the Beneficiary only when actually received by such Beneficiary.

3.4 Trustee as Beneficiary . The Trustee and any Successor Trustee appointed under Section 10.2 shall not be a Beneficiary or hold a Beneficial Interest hereunder.


ARTICLE IV

DURATION AND TERMINATION OF THE TRUST

4.1 Duration . The existence of the Trust shall terminate upon the earliest of (i) such time as termination is required by the applicable laws of the State of Delaware, (ii) the distribution of all the Trust Assets as provided in Section 5.8, or (iii) the close of business on May 24, 2005; provided that the Trustee, in his discretion, may extend the existence of the Trust to such later date as he may designate, if they determine that an extension is reasonably necessary to fulfill the purpose of the Trust, as specified in this Agreement. The Trust shall not in any event terminate pursuant to subparagraph (iii) of this Section 4.1 prior to the date on which the Trustee is permitted to make a final distribution in accordance with Section 5.8.


4.2 Other Obligations of Trustee upon Termination . Upon termination of the Trust, the Trustee shall provide for the retention of the books, records, lists of holders of Units, certificates for Shares and files which shall have been delivered to or created by the Trustee. At the Trustee's discretion, all of such records and documents may be destroyed at any time after seven years from the distribution of all the Trust Assets. Except as otherwise specifically provided herein, upon the distribution of all the Trust Assets, the Trustee shall have no further duties or obligations hereunder.


ARTICLE V

ADMINISTRATION OF TRUST ASSETS

5.1 Sale of Trust Assets . Subject to the terms and conditions of this Agreement, the Trustee may, at such times as the Trustee deems appropriate, collect, liquidate, reduce to cash, transfer, assign, or otherwise dispose of all or any part of the Trust Assets as he deems appropriate at public auction or at private sale for cash, securities or other property, or upon credit (either secured or unsecured as the Trustee shall determine in his sole discretion).

5.2 Efforts to Resolve Claims and Liabilities . Subject to the terms and conditions of this Agreement, the Trustee will make appropriate efforts to resolve any contingent or unliquidated claims and outstanding contingent Liabilities for which the Trust may be responsible, dispose of the Trust Assets, make timely distributions and not unduly prolong the duration of the Trust.

5.3 Continued Collection of Property of Trust Assets . All property that is determined to be a part of the Trust Assets shall continue to be collected by the Trustee and held as a part of the Trust. The Trustee shall hold the Trust Assets without being obligated to provide for or pay any interest thereon to any Beneficiary, except to the extent of such Beneficiary's share of interest actually earned by the Trust after payment of the Trust's liabilities and expenses as provided in Section 5.6.

5.4 Transactions with Related Persons . Notwithstanding any other provisions of this Agreement, except as set forth in Schedule A attached hereto, the Trustee shall not knowingly, directly or indirectly, sell or otherwise transfer all or any part of the Trust Assets to, or contract with, (i) any agent or employee (acting in individual capacities) of the Trust; or (ii) any Person of which the Trustee, or agent or employee of the Trust is an Affiliate by reason of being a trustee, director, officer, partner or direct or indirect beneficial owner of 5% or more of the outstanding capital stock, shares or other equity interest of such Persons, unless in each such case such transaction is no less favorable to the Trust than terms available for a comparable transaction with unrelated Persons.


5.5 Restriction on Trust Assets . The Trust shall not receive transfers of any assets prohibited by Revenue Procedure 82-58, as the same may be amended, supplemented, or modified, including, but not limited to, any listed stocks or securities, any readily-marketable assets, any operating assets of a going business, any unlisted stock of a single issuer that represents 80% or more of the stock of such issuer or any general or limited partnership interest.

5.6 Payment of Expenses and Liabilities . The Trustee shall pay from the Trust Assets all expenses, charges, and obligations of the Trust and of the Trust Assets and all Liabilities and obligations which the Trustee specifically assumes and agrees to pay pursuant to this Agreement and such transferee lia ...