Liquidating Trust Agreement

Exhibit 10.2




















LIQUIDATING TRUST AGREEMENT





Dated as of March 16, 2009





by and between





ICON CASH INCOME FUND EIGHT A L.P.





individually as Grantor





and





ICON CAPITAL CORP.





as Managing Trustee



and



NRAI SERVICES, LLC



as Resident Trustee




















TABLE OF CONTENTS



LIQUIDATING TRUST AGREEMENT 4
RECITALS 4
ARTICLE I: NAME AND DEFINITIONS 5
1.1 Name 5
1.2 Certain Terms Defined 5
ARTICLE II: NATURE OF TRANSFER 6
2.1 Purpose of Trust 6
2.2 Prohibited Activities 7
2.3 No Reversion to the Partnership 7
2.4 Payment of Liabilities 7
2.5 Bill of Sale, Assignment, Acceptance and Assumption Agreement; Instruments of Further Assurance 7
2.6 Incidents of Ownership 7
2.7 Notice to Unlocated Holders of Partnership Units 7
ARTICLE III: BENEFICIARIES 8
3.1 Beneficial Interests 8
3.2 Rights of Beneficiaries 8
3.3 No Transfer of Interests of Beneficiaries 9
3.4 Managing Trustee as Beneficiary 9
ARTICLE IV: DURATION AND TERMINATION OF TRUST 9
4.1 Duration 9
4.2 Other Obligations of the Managing Trustee upon Termination 9
ARTICLE V: ADMINISTRATION OF TRUST ASSETS 10
5.1 Sale of Trust Assets 10
5.2 Transactions with Related Persons 10
5.3 Payment of Claims, Expenses and Liabilities 10
5.4 Interim Distributions 10
5.5 Final Distribution 10
5.6 Reports to Beneficiaries and Others 11
5.7 Federal Income Tax Information 11
5.8 Employment of Manager 11
ARTICLE VI: POWERS OF AND LIMITATIONS ON THE MANAGING TRUSTEE 12
6.1 Limitations on the Managing Trustee 12
6.2 Specific Powers of the Managing Trustee 12
ARTICLE VII: RESIDENT TRUSTEE 14
7.1 Generally 14
7.2 Fees and Indemnity 16
7.3 Insurance 16
7.4 Miscellaneous 16
ARTICLE VIII: CONCERNING THE MANAGING TRUSTEE, EMPLOYEES AND AGENTS 17
8.1 Generally 17
8.2 Reliance by Managing Trustee 18
8.3 Limitation on Liability to Third Persons 19
8.4 Recitals 19
8.5 Indemnification 19
8.6 Rights of Managing Trustees, Employees, Independent Contractors and Agents to Own Trust Units or Other Property and to Engage in Other Business 20
ARTICLE IX: PROTECTION OF PERSONS DEALING WITH THE MANAGING TRUSTEE 20
9.1 Reliance on Statements by the Managing Trustee 20














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ARTICLE X: REIMBURSEMENT TO THE MANAGING TRUSTEE 21
10.1 Expenses 21
ARTICLE XI: THE MANAGING TRUSTEE AND SUCCESSOR MANAGING TRUSTEE 21
11.1 Number and Qualification of Managing Trustees 21
11.2 Resignation and Removal 21
11.3 Appointment of Successor 22
11.4 Acceptance of Appointment by Successor Managing Trustee 22
11.5 Bonds 22
ARTICLE XII: CONCERNING THE BENEFICIARIES 22
12.1 Evidence of Action by Beneficiaries 22
12.2 Limitation on Suits by Beneficiaries 22
12.3 Requirement of Undertaking 22
ARTICLE XIII: MEETING OF BENEFICIARIES 23
13.1 Purpose of Meetings 23
13.2 Meeting Called by Managing Trustee 23
13.3 Meeting Called on Request of Beneficiaries 23
13.4 Persons Entitled to Vote at Meeting of Beneficiaries 23
13.5 Quorum 23
13.6 Adjournment of Meeting 23
13.7 Conduct of Meeting 23
ARTICLE XIV: AMENDMENTS 24
14.1 Consent of Beneficiaries 24
14.2 Effect of Amendment 24
14.3 Managing Trustee's Declining to Execute Documents 24
ARTICLE XV: MISCELLANEOUS PROVISIONS 24
15.1 Filing Documents 24
15.2 Intention of Parties to Establish Trust 24
15.3 Beneficiaries Have No Rights or Privileges as Holders of Partnership Units 24
15.4 Laws as to Construction 25
15.5 Severability 25
15.6 Notices 25
15.7 Counterparts. 25

EXHIBIT A: Bill of Sale, Assignment, Acceptance and Assumption Agreement. 27









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LIQUIDATING TRUST AGREEMENT





This LIQUIDATING TRUST AGREEMENT (this "Agreement"), dated as of March 16, 2009 (the "Effective Date"), by and between ICON Income Fund Eight A L.P., a Delaware limited partnership, as Grantor (the "Partnership"), ICON Capital Corp., a Delaware corporation, as Managing Trustee (the "Managing Trustee"), and NRAI Services, LLC, a Delaware limited liability company, as Resident Trustee (the "Resident Trustee" and, with the Managing Trustee, the "Trustees").



RECITALS:





WHEREAS, the Partnership was organized for the objectives and purposes of owning and leasing, and otherwise dealing with equipment and other personal property; and



WHEREAS, ICON Capital Corp., a Delaware corporation (the "General Partner") filed a Certificate of Cancellation with Secretary of State of the State of Delaware pursuant to the terms of its Amended and Restated Agreement of Limited Partnership dated as of February 9, 2000 (the "Partnership Agreement"); and



WHEREAS, as of the date hereof, substantially all of the assets of the Partnership have been sold or otherwise disposed of; and



WHEREAS, the General Partner believes it to be in the best interest of the Partnership to complete the liquidation of the Partnership by transferring all remaining assets of the Partnership (the "Retained Assets") to a liquidating trust (the "Liquidating Trust" or "Trust") with ICON Capital Corp. serving as its initial Managing Trustee, including cash reserves set aside for the contingent and existing obligations of the Partnership and the Liquidating Trust (the "Cash Reserves"); and



WHEREAS, the Managing Trustee shall administer the Liquidating Trust pursuant to the terms of this Agreement and, upon satisfaction of all liabilities and obligations of the Partnership and the Liquidating Trust, the Managing Trustee shall distribute the residue of the proceeds of the liquidation of the assets of the Partnership in accordance with the terms hereof.



NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Partnership hereby agrees to grant, release, assign, convey and deliver unto the Managing Trustee for the benefit of the Beneficiaries (as hereinafter defined), all of the right, title and interest of the Partnership in and to the Retained Assets and Cash Reserves for the uses and purposes stated herein on the Effective Date, subject to the terms and provisions set out below, and the Managing Trustee hereby agrees to accept such Retained Assets and Cash Reserves and such Trust, subject to the following terms and provisions:



ARTICLE I



NAME AND DEFINITIONS



1.1 Name . This Trust shall be known as the ICON Income Fund Eight A L.P. Liquidating Trust.



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



(a) "AFFILIATE" shall mean, with respect to any Person, (a) any other Person directly or indirectly controlling, controlled by or under common control with such Person, (b) any officer, director or partner of such Person, (c) any other Person owning or controlling 10% or more of the outstanding voting securities of such Person and (d) if such Person is an officer, director or partner, any other person for which such Person acts in such capacity.



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









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(c) "BENEFICIAL INTEREST" shall mean each Beneficiary's proportionate share of the Trust Assets in the Trust determined by the ratio of the number of Partnership Units held by the Initial Beneficiary on the close of business on the Record Date in the Partnership over the total number of Partnership Units existing on such Record Date in the Partnership and thereafter each Beneficiary's proportional beneficial interest in the Trust represented by Trust Units.



(d) "BENEFICIARIES" shall mean the holders of Trust Units from time to time on or after the Record Date, including the Initial Beneficiaries and the Subsequent Beneficiaries.



(e) "GRANTOR" shall mean the Partnership.



(f) "INITIAL BENEFICIARIES" shall mean the initial holders of Trust Units.



(g) "LIQUIDATING TRUST" shall mean the liquidating trust maintained by the Managing Trustee holding the Trust Assets of the Partnership, identified as the "ICON Income Fund Eight A L.P. Liquidating Trust"; also referred to herein as the "Trust."



(h) "MANAGER" shall mean such Person or Persons who have been employed by, or who have contracted with, the Managing Trustee to assist in the management of the Trust, and for the avoidance of doubt, the Manager may be the General Partner or any Affiliate of the General Partner.



(i) "PARTNERSHIP UNITS" shall mean the limited and general partnership units in the Partnership held by each of the Beneficiaries as of the Record Date.



(j) "PERSON" shall mean any natural person, partnership, trust, corporation, association or other legal entity, including, but not limited to, the General Partner and any Affiliate of the General Partner.



(k) "RECORD DATE" shall mean the date selected by the Grantor for determination of the holders of Partnership Units entitled to become Beneficiaries.



(l) "SUBSEQUENT BENEFICIARIES" shall mean Beneficiaries as reflected on the books and records of the Trust from time to time after the Effective Date, other than the Initial Beneficiaries.



(m) "TRUST" shall mean a Delaware Statutory Trust pursuant to Chapter 38 of Title 12 of the Delaware Code and created by the filing of a Certificate of Trust with the Secretary of State of the State of Delaware.



(n) "TRUST ASSETS" shall mean all the property held from time to time by the Managing Trustee under this Agreement, which initially shall consist of the Retained Assets of the Partnership granted, assigned and conveyed to the Managing Trustee by the Partnership, the Cash Reserves, and, in addition, shall thereafter include all proceeds and other receipts of, from, or attributable to any assets, causes of actions or claims held by the Trust.



(o) "TRUST UNITS" shall mean those equal, undivided portions into which the Beneficial Interests in the Trust Assets are divided, as evidenced on the books and records of the Trust.



(p) "TRUSTEE(S)" shall mean the original Trustee(s) under this Agreement and their successor(s) and assignee(s), if any.







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ARTICLE II





NATURE OF TRANSFER



2.1 Purpose of the Trust .



(a) It is expected that the Partnership shall dissolve and liquidate prior to fully winding up its affairs, including, but not limited to, the sale of its remaining assets, the collection of any receivables and the payment of any unsatisfied debts, claims, liabilities, commitments, suits and other obligations, whether contingent or fixed or otherwise (the "Liabilities"), except for such liabilities and obligations for which the Partnership has previously established reserves by the retention of the Cash Reserves as described in the recitals hereto. The Trust hereby is organized for the sole purpose of winding up the affairs of the Partnership as promptly as reasonably possible and with no objective to continue or engage in the conduct of a trade or business.



(b) The Cash Reserves and Retained Assets to be granted, assigned and conveyed to the Managing Trustee as of the Effective Date will be held in the Trust, and the Managing Trustee will: (i) further liquidate the Trust Assets as it deems necessary to carry out the purpose of the Trust and facilitate distribution of the Trust Assets; (ii) protect, conserve and manage the Trust Assets in accordance with the terms and conditions hereof; and (iii) distribute the Trust Assets in accordance with the terms and conditions hereof.



(c) It is intended that the grant, assignment and conveyance of the Cash Reserves and the Retained Assets by the Partnership to the Managing Trustee pursuant hereto shall be treated for federal and state income tax purposes as if the Partnership made such distributions directly to the holders of Partnership Units. 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 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 Managing 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 Treasury Regulation Section 1.671-4(a). The Partnership agrees that a transfer agent acting on its behalf may prepare and file applicable K-1's with respect to the Beneficiaries' Partnership income. To the extent that the Managing Trustee becomes liable for the payment of taxes, including withholding taxes, with respect to income derived from the investment of funds held hereunder or any payment made hereunder (collectively, the "Taxes"), the Managing Trustee may pay such Taxes. The Managing Trustee may withhold from any payment of the Trust Assets such amount as the Managing Trustee estimates to be sufficient to provide for the payment of such Taxes not yet paid, and may use the sum withheld for that purpose. The Managing Trustee shall be indemnified and held harmless against any liability for Taxes and for any penalties or interest with respect to Taxes on such investment income or payments in the manner provided herein.



2.2 Prohibited Activities . The Trust shall not continue or engage in the conduct of any trade or business, and the Managing Trustee is expressly prohibited from continuing or engaging, and shall have no power or authority to continue or engage in the conduct of any trade or business on behalf of the Trust or the Beneficiaries, and all of the terms and conditions hereof shall be construed accordingly.











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



2.4 Payment of Liabilities . The Trust hereby agrees to assume all Liabilities of the Partnership on the Effective Date. Should any Liability be asserted against the Trust as the transferee of the Trust Assets or as a result of the assumption of the Liabilities, the Managing Trustee may use such part of the Trust Assets as may be necessary in contesting any such Liability or in payment thereof. In no event shall the Managing Trustee, Beneficiaries or employees or agents of the Trust be personally liable, nor shall any personal property of such Persons or any other Trust Assets be subject to attachment, in the event the Trust Assets are not sufficient to satisfy the Liabilities asserted against or payable out of the Partnership's available Trust Assets in the Trust.



2.5 Bill of Sale, Assignment, Acceptance and Assumption Agreement; Instruments of Further Assurance . On the Effective Date, the Partnership and the Trust shall execute a Bill of Sale, Assignment, Acceptance and Assumption Agreement conveying the Retained Assets, Cash Reserves and Liabilities to the Trust, a copy of which is attached as Exhibit A hereto. After the dissolution of the Partnership, such Persons who shall have the right and power to so act, will, upon reasonable request of the Managing 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 Managing Trustee of any property intended to be covered hereby, and to vest in the Managing Trustee, its successors and assigns, the estate, powers, instruments or funds in trust hereunder.





2.6 Incidents of Ownership . The holders of Partnership Units as of the Record Date shall be the Initial Beneficiaries of the Trust as holders of Trust Units in the Trust, and the Managing 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 Holders of Partnership Units . If the Trust holds Trust Assets for the benefit of unlocated holders of any Partnership Units, due notice shall be given to such unlocated holders of Partnership Units in accordance with Delaware law.







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ARTICLE III





BENEFICIARIES



3.1 Beneficial Interests .



(a) The Beneficial Interest of each Initial Beneficiary hereof shall be determined by the Partnership in accordance with the Partnership's list of Partnership Unit holders as of the Record Date (the "List"). The Partnership will deliver the List to the Managing Trustee promptly after the Record Date specifying the Partnership Units of each Partner in the Partnership. Each Partnership Unit owned by a Partner shall be converted into Beneficial Interests in the Trust. For ease of administration, the List shall express the Beneficial Interest of each Initial Beneficiary in terms of units and it is intended that each unit shall represent one Trust Unit in the Trust.



(b) In the case of the Partnership Unit holders, book-entry or other records or any other evidence of ownership satisfactory to the Managing Trustee will be deemed to evidence the Beneficial Interest in the Trust of each such Beneficiary.



(c) If any conflicting claims or demands are made or asserted with respect to the ownership of any Trust Units, or if there should be 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 Trust Units, then, in any of such events, the Managing Trustee shall be entitled, at its sole election, to refuse to comply with any such conflicting claims or demands. In so refusing, the Managing Trustee may elect to make no payment or distribution with respect to such Trust Units, or to make such payment to a court of competent jurisdiction or an escrow agent, and in so doing the Managing Trustee shall not be or become liable to any of such parties for their failure or refusal to comply with any of such conflicting claims or demands, nor shall the Managing Trustee be liable for interest on any funds which it may so withhold. The Managing 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 non-appealable judgment of a court of competent jurisdiction, (ii) all differences have been adjusted by valid written agreement between all of such parties, and the Managing Trustee shall have been furnished with an executed counterpart of such agreement, or (iii) there is furnished to the Managing Trustee a surety bond or other security satisfactory to the Managing Trustee, as it shall deem appropriate, to fully indemnify it 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 his Beneficial Interest. Each Beneficiary shall take and hold the same subject to all the terms and provisions of this Agreement. The interest of the Beneficiary hereby is declared and shall be in all respects personal property and upon the death of an individual Beneficiary, his Beneficial Interest shall pass as personal property to his legal representative and such death shall in no way terminate or affect the validity of this Agreement, provided that the Managing Trustee shall not be required to evidence a book entry transfer of a deceased Beneficiary ?s Beneficial Interest to his legal representative until the Managing Trustee shall have received Letters Testamentary or Letters of Administration and written notice of the death of the deceased Beneficiary. A Beneficiary shall have no title or right to, or possession, management or control of, the Trust Assets except as herein expressly provided. 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 Trust Assets but the whole title to the Trust Assets shall be vested in the Managing Trustee and the sole interest of the applicable Beneficiaries shall be the rights and benefits given to such Persons under this Agreement.











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3.3 No Transfer of Interests of Beneficiaries . No Beneficial Interest may be transferred by any Beneficiary in person or by a duly authorized agent or attorney, or by the properly appointed legal representatives of the Beneficiary. No Beneficiary has authority or power to sell, assign, transfer, encumber, or in any other manner dispose of his Beneficial Interest; provided, however, that the Beneficial Interest shall be assignable or transferable by will, intestate succession, or operation of law and, further provided, 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 upon written consent of the Managing Trustee, which consent may be withheld in the Managing Trustee's sole discretion.



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 Beneficial Interests be subject to the contracts, debts, obligations, engagements or liabilities of any Beneficiary, but the Beneficial Interest of a Beneficiary shall be paid by the Managing 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 Managing Trustee as Beneficiary . The Managing Trustee, either individually or in a representative or fiduciary capacity, may be a Beneficiary to the same extent as if it were not a Managing Trustee hereunder and shall have all the rights of a Beneficiary, including, without limitation, the right to vote and to receive distributions, to the same extent as if it were not the Managing Trustee hereunder.



ARTICLE IV



DURATION AND TERMINATION OF TRUST



4.1 Duration . The existence of this Trust shall terminate upon the earliest of (i) a termination required by the applicable laws of the State of Delaware, (ii) the termination due to the distribution of all Trust Assets as provided in Section 5.5, or (iii) March 16, 2012; provided, however, that the Managing Trustee, in its discretion, may extend the existence of this Trust to such later date as it may designate, if it determines that an extension is reasonably necessary to wind up the affairs of this Trust.



4.2 Other Obligations of the Managing Trustee upon Termination. Upon distribution of all the Trust Assets, the Managing Trustee shall pay or make reasonable provision to pay all claims and obligations, including all contingent, conditional or unmatured claims and obligations, known to the Trust, but for which the identity of the claimant is unknown and not known to the Trust, but based on the facts known to the Trust, are likely to arise or to become known to the Trust within 10 years after the date of dissolution. Except as otherwise specifically provided herein, upon the distribution of all Trust Assets in the Trust, the Managing Trustee shall have no further duties or obligations hereunder.







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ARTICLE V



ADMINISTRATION OF TRUST ASSETS



5.1 Sale of Trust Assets . The Managing Trustee is hereby authorized and directed, at such times as it may deem appropriate, to transfer, assign, or otherwise dispose of all or any part of the Trust Assets as it deems appropriate at public auction or at private sale for cash, securities or other property, or upon credit (either secured or unsecured as the Managing Trustee shall determine, in its sole discretion).



5.2 Transactions with Related Persons . Notwithstanding any other provisions of this Agreement, the Managing Trustee shall not knowingly, directly or indirectly, sell or otherwise transfer all or any part of any Trust Assets to, or contract with, (i) itself or any other Trustee or an employee or agent (acting in its or their individual capacities) of this Trust, or (ii) any Person of which any Trustee, employee or agent of this Trust is an Affiliate.







5.3 Payment of Claims, Expenses and Liabilities . Provided the Managing Trustee has been advised in writing with respect to such claims, expenses, charges, liabilities and obligations, the Managing Trustee shall pay from the Trust Assets all claims, expenses, charges, liabilities, and obligations of the Trust Assets and all Liabilities relating to the Trust Assets and obligations which the Managing Trustee specifically assumes and agrees to pay pursuant to this Agreement and such transferee liabilities which the Managing Trustee may be obligated to pay as transferee of the Trust Assets, including, without limitation, interest, penalties, taxes, assessments, and public charges of every kind and nature and the costs, charges, and expenses connected with or growing out of the execution or administration of this Trust and such other payments and disbursements as are provided in this Agreement or which may be determined to be a proper charge against the Trust Assets by the Managing Trustee.



5.4 Interim Distributions . At such times as may be determined by it in its sole discretion, but no less frequently than annually, the Managing Trust ...