# Appendix — Ginther v. Ginther Trusts

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1760%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2001
- **Citation:** 534 U.S. 814

## Text

la

APPENDIX A — PER CURIAM OPINION OF THE
UNITED STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT DATED AND
FILED JANUARY 29, 2001

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 00-20593
(Summary Calendar)

In the Matter of: THE GINTHER TRUSTS,
A Texas Joint Venture,

Debtor,
FERGUS M. GINTHER; ADRIANA N. GINTHER
Appellants,
versus

THE GINTHER TRUSTS, A Texas Joint Venture;
REDSTONE EL DORADO ACQUISITION, L.P.,

Appellees,

Appeal from the United States District
Court for the Southern District of Texas

Before HIGGINBOTHAM, WIENER, and BARKSDALE,
Circuit Judges.

2a
Appendix A
PER CURIAM:

Appellants Fergus and Adriana Ginther contend that the
District Court erred in dismissing as moot their appeal of
the bankruptcy court’s authorization of the sale of the
undivided interest of the Ginther Trusts, a Texas joint venture
(“the Venture”), in the El Dorado Ranch (“the Ranch”) to
Redstone E] Dorado Acquisition, L.P. (“Redstone”). The
Venture owned, in the aggregate, approximately 51% of the
undivided interest in the Ranch, a real estate development
in Texas, and joined all other owners of fractional interests
in selling the Ranch to Redstone. As the Venture was then a
debtor in bankruptcy, it did not sell its fractional interest in
the Ranch until after it obtained authorization from the
bankruptcy court pursuant to 11 U.S.C. § 363(b). Appellants
contended in bankruptcy court that the sale should not have
been authorized because, inter alia, the Venture lacked
standing to become a debtor in bankruptcy. Appellants also
asserted — for the first time on appeal to the district court
— that Redstone was not a good faith purchaser. Because,
however, (1) the sale was authorized by the bankruptcy court,
and (2) Appellants were unable to obtain a stay of the sale,
we affirm the district court’s dismissal of this appeal as moot.

1. Facts and Proceedings

In the 1950s, Noble C. and Minnie Lee Ginther, husband
and wife, acquired the Ranch, a 2033 acre tract of Texas
real property. Thereafter, it was developed into the el Dorado
Ranch and E] Dorado Country Club. They sold factional
interests in the Ranch, retaining approximately 51 percent
in undivided ownership.

3a

Appendix A

In the mid-1980s, the Ginthers (“grantors”) created the
Ginther Revocable Trust, a revocable inter vivos trust, to
which they transferred their interest in the Ranch. The trust
agreement provided that, on the death of the first grantor to
die, the trustee would divide the assets of the trust into two
separate shares, not necessarily equal in value, one share to
hold the property of the surviving grantor, the other share to
hold the property of the deceased grantor.

In accordance with that provision of the trust agreement,
on the death of Noble C. Ginther in 1989, the trust’s 51
percent interest in the Ranch was divided into two separate
shares: The decedent’s undivided 24.7 percent interest went
into the Noble C. Ginther Grantor Trust and the survivor’s
undivided 26.7 percent interest went to the Minnie Lee
Ginther Grantor Trust. These trust shares — actually sub
trusts — were then placed under the fiduciary control of the
Advent Trust Company, as successor trustee of the two
grantor trusts that resulted (collectively the “Ginther Trusts”).

In 1998, the Venture, referring to itself as a Texas joint
venture, voluntarily filed for relief under Chapter 11 of the
bankruptcy code. In response to a challenge mounted by a
number of creditors to the Venture’s standing to file for
bankruptcy, the bankruptcy court found that the Venture
constituted a de facto joint venture under Texas law, that it
owned a fractional interest of some 51% to 53% in the Ranch,
and that it did have standing as a debtor in bankruptcy court.

The Venture and the other owners of the Ranch entered
into an agreement to sell the Ranch to Redstone, subject to
the Venture’s obtaining the bankruptcy court’s approval of

4a
Appendix A

the sale of its interests. Appellants challenged the Venture’s
record title to the Ranch and attempted to block the sale.
They did not, however, challenge Redstone’s status as a good
faith purchaser until they appealed to the district court.

The bankruptcy court proceeded to approve the
Venture’s sale of its interest in the Ranch to Redstone as
good faith purchaser. Appellants appealed that decision to
the district court and then to us, and they sought a stay of
the sale pending each appeal. Like the bankruptcy court,
however, the district court — and ultimately this court —
refused to grant a stay and the sale of the Ranch to Redstone
was consummated.

Despite their failure to obtain a stay of the sale,
Appellants prosecuted their appeal of the bankruptcy court’s
authorization of the sale to the district court, which dismissed
their appeal as moot because the sale had already been closed.
That dismissal is now before us on appeal.

II. Analysis
A. Standard of Review

We review de novo the district court’s dismissal of an
appeal from the bankruptcy court as moot.!

B. Failure to Obtain a Stay

After the bankruptcy court authorized the sale of the
Venture’s interest in the Ranch to Redstone pursuant to

1. Inre GWI PCS 1 Inc., 230 F.3d 788, 800 (Sth Cir. 2000).

Sole tape rnetied epbepe” Pays Paw TON 4

Sa

Appendix A

11 U.S.C. § 363(b), Appellants were unsuccessful in their
attempts to obtain a stay of the sale, and it closed. 11 U.S.C.
§ 363(m) provides that a bankruptcy court’s authorization
of the sale of property under 11 U.S.C. § 363(b) “to an entity
that purchased ... such property in good faith, whether or
not such entity knew of the pendency of the appeal, unless
such authorization and such sale or lease were stayed pending
appeal” cannot be reversed or modified.’

Appellants contended, for the first time on appeal to the
district court, that Redstone was not a good faith purchaser
of the Ranch, making § 363(m) inapplicable. As Redstone’s
status as a good faith purchaser was not challenged in the
bankruptcy court, however, we need not address this issue.
“It is well established that we do not consider arguments or
claims not presented to the bankruptcy court.”’ We
nevertheless note in passing that our thorough review of the
record, Appellants’ arguments, and the bankruptcy court’s
well-reasoned opinion, convinces us that if we were to
address the good faith purchaser issue we would likely agree
with the bankruptcy court’s determination that Redstone was
a good faith purchaser as a matter of law.

C. Subject Matter Jurisdiction

Appellants also challenge the subject matter jurisdiction
of the bankruptcy court by urging that the Venture was not a

2. 11 U.S.C. § 363(m) (West 2000).

3. Gilchrist v. Westcott, (In Matter of Gilchrist), 891 F.2d 559,
561 (5th Cir. 1990) (citing Moody v. Empire Life Ins. Co. (In re Moody),
849 F.2d 902, 905 (Sth Cir.), cert. denied, 488 U.S. 967 (1988)).

6a

Appendix A

debtor with standing in bankruptcy court. This contention is
irrelevant to the instant inquiry, however. In Jn re Gilchrist,‘
we adopted the Seventh Circuit’s interpretation of § 363(m)
that a failure to obtain a stay is fatal to a challenge of a
bankruptcy court’s authorization of the sale of property,
notwithstanding any questions as to that court’s jurisdiction.
As the Seventh Circuit had earlier held in Jn re Sax,°

[t]he appellants raise the jurisdictional argument
as if it somehow negates or excuses their failure
to obiain a stay. It does not. This appeal is moot
because [the appellants] failed to obtain a stay,
so we cannot reach the question of whether the
bankruptcy court had jurisdiction to order and
approve the sale... . The bankruptcy court made
the determination that it had jurisdiction; an issue
which it had jurisdiction to decide.... That
decision stands unless it is appealed properly. . . .
Despite the maxim that [‘subject matter jurisdiction
can be raised at any time,’ valid procedural rules
cannot be ignored just because the jurisdictional
decision is being challenged rather than the
decision on the merits.°

Moreover, we are persuaded, as was the bankruptcy court,
that the Venture’s resulting co-ownerships following the

4. 891 F.2d 559 (Sth Cir. 1990).
5. 796 F.2d 994 (7th Cir. 1986).

6. Id. at 561 (quoting Jn re Sax, 796 F.2d at 998).

haa tiie

7a
Appendix A

division of the original trust on the death of the first settlor
to die is a de facto joint venture under Tex. Civ. Code Ann.
§ 6132b. Such joint ventures are clearly “persons” entitled
to be debtors in bankruptcy court.’

III. Conclusion

Because Appellants failed to obtain a stay of the sale of
the Venture’s interest in the Ranch to Redstone, the district

court dismissed Appellant’s appeal as moot. The decision
of the district court is therefore

AFFIRMED.

7. 11 U.S.C. § 109(b) (West 2000).

8a

APPENDIX B — ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF TEXAS, HOUSTON DIVISION DISMISSING THE
APPEAL AS MOOT DATED AND
ENTERED JUNE 27, 2000

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

CIVIL ACTION NO. 00-1295
FERGUS M. GINTHER and ADRIANA N. GINTHER,

Appellants,

versus
THE GINTHER TRUST, A TEXAS JOINT VENTURE
and REDSTONE EL DORADO ACQUISITION, L.P.,
Appellees.
ORDER

IT IS HEREBY ORDERED that Appellees’ Motion to
Dismiss Appeal (Instrument No. 11) is GRANTED.

The Clerk shall enter this Order and provide a copy to
all parties.

SIGNED on this the 27th day of June, 2000, at Houston,
Texas.

s/ Vanessa D. Gilmore
VANESSA D. GILMORE
UNITED STATES DISTRICT
JUDGE

9a

APPENDIX C — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

DENYING MOTION FOR STAY PENDING APPEAL
DATED AND FILED MARCH 22, 2000

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 00-20216

o

In The Matter Of: GINTHER TRUSTS,
a Texas Joint Venture

Debtor
FERGUS M. GINTHER; ADRIANA N. GINTHER
Appellants
V.
THE GINTHER TRUSTS, a Texas Joint Venture;
CREDITORS COMMITTEE, The Official Committee of
Unsecured Creditors; REDSTONE EL DORADO
ACQUISITION LP; TEBEAR INVESTMENTS INC;
NUCORP INC
Appellees
CA-00-925

Appeal from the United States District Court for the
Southern District of Texas, Houston

cele

10a

Appendix C

Before HIGGINBOTHAM, DeMOSS, and STEWART,
Circuit Judges.

BY THE COURT:

IT IS ORDERED that appellants’ motion for stay
pending appeal is DENIED.

lla

APPENDIX D — ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF TEXAS, HOUSTON DIVISION DENYING
MOTION FOR STAY PENDING APPEAL
DATED MARCH 17, 2000

COURTROOM MINUTES :
JUDGE Vanessa D. Gilmore PRESIDING
COURTROOM CLERK B..E. Mares

COURT REPORTER Bruce Slavin

LAW CLERK Sorcha Landau
MORNING
SESSION 10:30, 12:18
* * *
DATE: 3-17-00
CA H-00-925

Fergus Ginther et al

V.

The Ginther Trusts

12a

Appendix D
DOCKET ENTRY
(VG) Motion Hearing (Rptr — B. Slavin)
(Proceeding)
x * x

Movant’s Motion to Stay Pending Appeal is
DENIED for reasons as stated on the record.

l3a

APPENDIX E — FINAL JUDGMENT OF THE UNITED

STATES BANKRUPTCY COURT FOR THE SOUTHERN

DISTRICT OF TEXAS, HOUSTON DIVISION DATED
MARCH 1, 2000 AND ENTERED MARCH 2, 2000

UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

CASE NO. 98-32663-H4-11
(Chapter 11)

IN RE
THE GINTHER TRUSTS,
A TEXAS JOINT VENTURE

Debtor

ADVERSARY NO. 99-3058

THE GINTHER TRUSTS,
A TEXAS JOINT VENTURE

Plaintiff

V.

NOBLE C. GINTHER, JR., ET AL.

Defendants

14a

Appendix E
FINAL JUDGMENT

On January 27, 2000, trial was held on 1) the Complaint
filed by the Debtor, The Ginther Trusts, a Texas Joint
Venture, against Noble C. Ginther, Jr.; Stuart Douglas
Ferrell; Stuart Douglas Ferrell, Trustee; Noble C. Ginther,
III, Trustee for the Fallon Renee Ginther Trust; Noble C.
Ginther, III, Trustee for the Chelsea Leigh Ginther Trust;
Esther Duff, Executor of the Estate of Gordon A. Duff; Esther
Duff, Successor Trustee; Mercantile Bank of Southern
Illinois, Successor Trustee of the W:fe’s Trust and the
Residuary Trust Under the Last Will dated October 6, 1987
of Gordon A. Duff; Edmond Lee “Pat” Ginther; Barbara A.
Ginther Nelson; John N. Randall; Rosanne Van Dorn
Ginther; Marilyn Deshong; Nucorp, Inc.; Bobbie Bayless,
Receiver; Advent Trust Company, Successor Corporate
Trustee of the NCG Trust; Advent Trust Company, Successor
Corporate Trustee of the Noble C. Ginther Trust, and the
Minnie L. Ginther Trust; Tri-Texas Realty, Inc.; Ferrell
Realty Corp.; Fergus M. Ginther; Adriana Ginther; Erin Lee
Ginther; and Stone Mountain Petroleum, LLC (the
“Defendants”’); and 2) Debtor’s Motion for Authority to Sell
Property Free and Clear of Liens and Encumbrances Pursuant
to 11 U.S.C. § 363. The Debtor appeared by and through its
authorized representative and through counsel. The
Defendant Nucorp, Inc. appeared by and through its
authorized representative and through counsel. The
Defendants Noble C. Ginther, Jr., Fergus M. Ginther, and
Adriana Ginther appeared through counsel. The Official
Committee of Unsecured Creditors and Amber Ginther
intervened in this proceeding and appeared through counsel.
Bobbie Bayless, Receiver of the Estate of Noble C. Ginther,

15a

Appendix E

Sr., Deceased, having no affirmative opposition to the sale,
at the request of her counsel was given permission by the
Court not to attend the trial. In addition, Tebear Investments,
Inc., appeared by and through its counsel of record. Redstone
Properties, LLC (“Redstone Properties”) and Redstone
El] Dorado Acquisition L.P. (“Redstone Acquisition”)
appeared by and through their authorized representative and
through counsel. After consideration of all evidence,
objections, pleadings, memoranda and arguments of counsel,
the Court makes the following findings of fact and
conclusions of law and enters this Final Judgment
accordingly. To the extent that any findings of fact are
deemed to be conclusions of law, they are hereby adopted as
such. To the extent that any conclusion of law are deemed to
be findings of fact, they are hereby adopted as such:

1. On March 11, 1998, the Debtor filed a voluntary
petition for relief under Chapter 11 of the United States
Bankruptcy Code, 11. U.S.C. § 101, et seq. (the “Code”).
Since the Petition Date, the Debtor has continued to
operate its affairs as a debtor in possession pursuant to
sections 1107 and 1108 of the Code.

2. As reflected by this Court’s Order On Motion to
Dismiss, entered June 24, 1998, the Debtor is a de facto
joint venture composed solely of the Noble C. Ginther
Grantor Trust a/k/a N.C. Ginther Grantor Trust, and the
Minnie Lee Ginther Grantor Trust, a/k/a M.L. Ginther
Grantor Trust (such trusts herein being collectively
called the “Grantor Trusts”). The only property of the
joint venture comprising Debtor’s bankruptcy estate is
its ownership interests contributed by the Grantor Trusts

l6a

Appendix E

in or relating to the El Dorado Golf Club, Inc., d/b/a
El Dorado Country Club (“EDCCI”) and the real estate
known as the El Dorado Ranch (the “Ranch”’) (together
with certain personal property and certain claims and
causes of action, including but not limited to avoidance
actions). The Ranch consists of approximately 2,011
acres of developed and undeveloped real property located
in Harris County, Texas.

3. Advent Trust Company, as Successor Trustee of the
Noble C. Ginther Grantor Trust a/k/a N.C. Ginther
Grantor Trust, owns, of record, a 24.7246639656902765%
undivided interest in the surface estate of the Ranch.
Advent Trust Company, as Successor Trustee of the
Minnie Lee Ginther Grantor Trust a/k/a M.L. Ginther
Grantor Trust, owns, of record, a 26.7246639656902765%
undivided interest in the surface estate of the Ranch.
Together these two interests constitute approximately
an undivided 51% interest in the surface estate of the
Ranch. That 51% undivided interest has been contributed
to The Ginther Trusts, A Texas Joint Venture, which is
the Debtor, and constitutes property of the Debtor’s
estate. The Debtor has the authority to deal with that
interest in the Ranch, as well as the equitable title in the
Ranch of the persons who are the beneficiaries of the
two trusts.

4. The remaining undivided interest in the surface estate
of the Ranch is owned of record by approximately fifteen
(15) other owners (collectively the “Record Title
Co-Interest Owners”), all of whom are Defendants
herein. The respective record ownership interests of the

17a

Appendix E

Record Title Co-Interest Owners in the Ranch are
reflected on the Commitments for Title Insurance
attached hereto as Exhibit “A” and incorporated herein.
Intervenor, Amber Ginther does not own a record
ownership interest in the Ranch, but claims an ownership
interest as well as a homestead interest in the Ranch.
Erin Leigh Ginther owns an interest in the mineral estate
of the Ranch. For purposes of this Final Judgment, the
term “Co-Interest Owners” means Amber Ginther, Erin
Leigh Ginther, and the parties listed in Item 3 of
Schedule A on each of the Commitments for Title
Insurance attached hereto as Exhibit “A” and
incorporated herein (such parties listed in such Item 3
being the Record Title Co-Interest Owners). The Debtor
and the Co-Interest Owners own undivided interests in
the Ranch, as tenants in common, joint tenants, or tenants
by the entirety. Debtor and the Co-Interest Owners own
all of the surface estate of the Ranch and all or
substantially all of the outstanding oil, gas and other
minerals with respect to the Ranch.

5. All or a portion of the Ranch is leased to EDCCI,
which operates the E] Dorado Country Club on a portion
of the Ranch.

6. In the summer of 1998, Jerry Crawford made a bid
to purchase the Ranch at a purchase price of
$11,300,000.00. The bid was accepted by the Debtor,
subject to bankruptcy court approval and other
conditions contained in such bid. Prior to execution of
an earnest money contract reflecting the proposed sale,
Mr. Crawford assigned his interests and rights in the
transaction to Redstone Properties.

18a

Appendix E

7. On November 5, 1998, subject to bankruptcy court
approval, the Debtor, as Seller, entered into a Sale and
Purchase Agreement with Redstone Properties for the
sale of the Ranch. The original Purchase Price (as defined
in the Sale and Purchase Agreement) for the Property
was $11,300,000.00.

8. The Sale and Purchase Agreement has been amended
by First Amendment to Sale and Purchase Agreement
(“First Amendment”) dated February 1, 1999, Second
Amendment to Sale and Purchase Agreement (“Second
Amendment”) dated April 16, 1999, Third Amendment
to Sale and Purchase Agreement (“Third Amendment’)
dated May 7, 1999, Fourth Amendment to Sale and
Purchase Agreement (“Fourth Amendment”) dated July
9, 1999, Fifth Amendment to Sale and Purchase
Agreement (“Fifth Amendment”) dated July 13, 1999,
Sixth Amendment to Sale and Purchase Agreement
(“Sixth Amendment”) dated November 24, 1999, and
Seventh Amendment to Sale and Purchase Agreement
(“Seventh Amendment”) dated January 26, 2000 (the
Sale and Purchase Agreement, as amended, herein being
called the “Sale and Purchase Agreement”).

9. Redstone Properties has assigned its interest in the
Sale and Purchase Agreement to Redstone Acquisition.

10. Pursuant to the terms of the Sale and Purchase
Agreement, as amended, the total acreage to be sold to
Redstone Acquisition is approximately 1,643.94 acres,
as more particularly described on Exhibit “B” attached
to this Final Judgment and incorporated herein, together

19a

Appendix E

with all improvements thereon and all rights and
appurtenances thereto (herein the “Property”), for a total
Purchase Price of $10,000,000.00.

11. Pursuant to the terms of an Assignment Agreement
(as amended) between Redstone Properties and Jerry
Crawford, upon (and only upon) completion of the
closing of the acquisition of the Property by Redstone
Acquisition, Mr. Crawford is entitled to receive a fee of
$700,000 from Redstone Properties.

12. Pursuant to the terms of a Fee Agreement between
Mr. Crawford and Don J. Davis, Mr. Crawford will pay
$350,000 of the $700,000 fee to Don J. Davis.

13. The Sale and Purchase Agreement is conditioned
upon the Debtor’s obtaining either Ratifications of the
Sale and Purchase Agreement by the Co-Interest Owners,
or the Debtor’s obtaining an Order from the Bankruptcy
Court under 11 U.S.C. § 363(h), authorizing sale of both
the Debtor’s interest and the interests of all non-ratifying
Co-Interest Owners.

14. On September 8, 1998, the Debtor filed its
Disclosure Statement. On November 24, 1998, the
Debtor filed its First Amended Disclosure Statement
with respect to its First Amended Plan of Reorganization
(the “Amended Plan’’).

15. The Amended Plan provides for the liquidation of
all the Debtor’s assets with the proceeds of the tangible
assets to be used to satisfy all Allowed Claims in full.

20a

Appendix E

The Amended Plan is to be funded by the proceeds of
the sale of the Debtor’s interest in the Property, and is
conditioned upon sale of the Property.

16. On February 1, 1999, the Debtor filed its Motion
for Authority to Sell Property Free and Clear of Liens
and Encumbrances Pursuant to 11 U.S.C. § 363. On
September 23, 1999, the Debtor filed its First Amended
Motion for Authority to Sell Property Free and Clear of
Liens and Encumbrances Pursuant to 11 U.S.C. § 363.
On October 15, 1999, the Debtor filed its Second
Amended Motion for Authority to Sell Property Free
and Clear of Liens and Encumbrances Pursuant to 11
U.S.C. § 363 (the Motion, as amended by the First
Amended Motion and the Second Amended Motion,
herein being called the “Motion to Sell’’).

17. Notice of the Motion to Sell was properly given
pursuant to the requirements of Rules 2002, 6004 and
9014 of the Federal Rules of Bankruptcy Procedure.

18. On February 1, 1999, the Debtor filed its Plaintiff's
Original Complaint in order to force the sale of the Ranch
over the objection of dissenting or non-consenting Co-
Interest Owners. On July 14, 1999, the Debtor filed its
Plaintiff's First Amended Complaint. On August 16,
1999, filed its Second Amended Complaint, and on
October 14, 1999, the Debtor filed its Third Amended
Complaint (Plaintiff's Original Complaint, as amended,
being hereinafter referred to as the “Adversary
Proceeding”).

5
3
<

PQA AO Rt inh AORN ARTI i ct NER FORE HERE SES RTARAI eA S DT GH

2la

Appendix E

19. Pursuant to Order Consolidating Motion to Sell with
Adversary Proceeding and Setting Pretrial Deadlines,
entered April 21, 1999, the Court consolidated the
Debtor’s Motion to Sell with the Adversary Proceeding.

20. Summons have been issued on the following
Defendants, who have been properly served with the
summons and a copy of the Complaint: Noble C. Ginther,
Jr.; Stuart Douglas Ferrell; Stuart Douglas Ferrell,
Trustee; Noble C. Ginther, III, Trustee for the Fallon
Renee Ginther Trust; Noble C. Ginther, III, Trustee for
the Chelsea Leigh Ginther Trust; Esther Duff, Executor
of the Estate of Gordon A. Duff; Esther Duff, Successor
Trustee; Mercantile Bank of Southern Illinois, Successor
Trustee of the Wife’s Trust and the Residuary Trust
Under the Last Will dated October 6, 1987 of Gordon
A. Duff; Edmond Lee “Pat” Ginther; Barbara A. Ginther
Nelson; John N. Randall; Rosanne Van Dorn Ginther;
Marilyn Deshong; Nucorp, Inc.; Bobbie Bayless,
Receiver; Advent Trust Company, Successor Corporate
Trustee of the NCG Trust; Advent Trust Company,
Successor Corporate Trustee of the Noble C. Ginther
Trust, and the Minnie L. Ginther Trust; Tri-Texas Realty,
Inc.; Ferrell Realty Corp.; Fergus M. Ginther; Adriana
Ginther; Erin Lee Ginther; and Stone Mountain
Petroleum, LLC.

21. Although duly served, Stuart Douglas Ferrell; Stuart
Douglas Ferrell, Trustee; Noble C. Ginther III, Trustee
for the Fallon Renee Ginther Trust; Noble C. Ginther
III, Trustee for the Chelsea Leigh Ginther Trust; Advent
Trust Company, Successor Corporate Trustee of the

22a

Appendix E

NCG Trust; Advent Trust Company, Successor
Corporate Trustee of the Noble C. Ginther Trust and the
Minnie L. Ginther Trust; Esther Duff, Executor of the
Estate of Gordon A. Duff; Esther Duff, Successor
Trustee; Mercantile Bank of Southern Illinois, Successor
Trustee of the Wife’s Trust and the Residuary Trust
Under the Last Will dated October 6, 1987 of Gordon
A. Duff; Edmond Lee “Pat” Ginther; Barbara A. Ginther
Nelson; John N. Randall; Rosanne Van Dorn Ginther;
Marilyn Deshong; Tri-Texas Realty, Inc.; Ferrell Realty
Corp.; Erin Lee Ginther; and Stone Mountain Petroleum,
LLC. (the “Defaulting Defendants”) have failed to file
an answer or any pleading constituting an answer and
have not entered an appearance. The deadline for filing
an answer has passed.

22. The Court has jurisdiction over the Adversary
Proceeding pursuant to 28 U.S.C. § 157. This matter is
a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(N)
and (Q).

23. Venue is proper in this Court pursuant to 28 U.S.C.
§ 1409, as the main bankruptcy case is pending in this
Court.

24. Certain Defendants have executed Ratification
Agreements, approving and authorizing the sale of the
Property pursuant to the terms and conditions of the Sale
and Purchase Agreement. Ratification Agreements have
been executed by Nucorp, Inc.; Rosanne Van Dorn
Ginther; Edmond Lee “Pat” Ginther; Marilyn Deshong;
Advent Trust Company, Successor Corporate Trustee

23a

Appendix E

of the NCG Trust; Advent Trust Company, Successor
Corporate Trustee of the Noble C. Ginther Trust and the
Minnie L. Ginther Trust; Barbara A. Ginther Nelson;
and John N. Randall.

25. Objections to the Motion to Sell were filed by Harris
County-State of Texas, the Texas Natural Resource
Conservation Commission, Noble Ginther, Jr., Fergus
and Adriana Ginther, and Tebear Investments, Inc.

26. Answers to the Adversary Proceeding were filed by
Noble Ginther, Jr., Stuart Douglas Ferrell, and Fergus
and Adriana Ginther.

27. Amber Ginther filed a Motion to Intervene, claiming
ownership and homestead interests in the Ranch. In the
Motion, Amber Ginther asked to intervene as a party in
support of the sale, subject to Court approval of the
Settlement Agreement (herein defined). The Court
granted the Motion to Intervene by Order entered J anuary
31, 2000.

28. The objections of Noble Ginther, Jr. to the Complaint
and the Motion to Sell have been withdrawn pursuant to
the terms of a settlement agreement entered into among
the Debtor, Redstone Acquisition, Noble C. Ginther, Jr.,
Amber Ginther, and El Dorado Tract GP, Inc., a copy of
which is attached hereto as Exhibit “C” and incorporated
herein (herein being called the “Settlement Agreement”’).
Although the Debtor is a nominal party to the Settlement
Agreement, no consideration is being paid by the Debtor
under the Settlement Agreement.

24a

Appendix E

29. The requirements of Section 363(b) and Section
363(h) of the Bankruptcy Code have been met.

30. Partition in kind of the Property is impossible due
to the variation in the land and the great number of
owners of the Property. Accordingly, the requirements
of Section 363(h)(1) are met in that partition in kind of
the Property among the Debtor’s estate and the Co-
Interest Owners is impracticable.

31. -The requirements of Section 363(h)(2) have been
met in that sale of the Debtor’s undivided interest in the
Property would realize significantly less for the Debtor
than sale of such Property free and clear of the interests
of the Co-Interest Owners.

32. The requirements of Section 363(h)(3) have been
met in that the benefit to the Debtor of a sale of such
Property free of the interests of the Co-Interest Owners
outweighs the detriment, if any, to the Co-Interest
Owners.

33. The requirements of Section 363(h)(4) have been
met in that the Property is not used in the production,
transmission, or distribution, for sale, of electric energy
or of natural or synthetic gas for heat, light, or power.

34. Pursuant to Section 363(h) of the Code, the Debtor
is authorized to sell both the Debtor’s interest, and the
interests of the Co-Interest Owners, in the Property.

25a

Appendix E

35. No Defendants have asserted a vested or contingent
right in the nature of dower or curtesy. To the extent
that any Defendant asserts such a right, the Property
should be sold free and clear of any and all such rights.

36. The Debtor marketed the Property in a professional
and diligent manner. In exercising its business judgment,
the Debtor has acted in good faith and determined that
the sale of the Property is in the best interest of the
Debtor, its estate, and its creditors.

37. The sale of the Property is in the best interests of
the Debtor, its estate, its creditors, and the Co-Interest
Owners.

38. The sale of the Debtor’s interest in the Property is
the best means available for providing cash to satisfy
the allowed claims of creditors.

39. The Sale and Purchase Agreement was negotiated
in an arms length transaction and in good faith, and the
terms and conditions are fair and are equitable and in
good faith.

40. Redstone Acquisition is purchasing the Property in
good faith within the meaning of Section 363(m) of the
Bankruptcy Code.

41. Upon Redstone Acquisition’s purchase of the
Property, it is contemplating selling a portion of the
Property (such portion herein being called the “Johnson
Portion”) to an entity affiliated with Larry Johnson (such

26a

Appendix E

entity herein being called the “Johnson Entity”) for a
purchase price of $8,500,000. Redstone Acquisition’s
sale of the Johnson Portion to the Johnson Entity is in
good faith. The Johnson Entity’s purchase of the Johnson
Portion is in good faith.

42. Pursuant to Section 363(f) of the Bankruptcy Code,
the Debtor is entitled to sell both the Debtor’s interest
in the Property and the interests of the Co-Interest
Owners free and clear of any interests in the Property,
including but not limited to free and clear of all liens,
claims, and encumbrances, except for the Permitted
Encumbrances (herein defined).

43. The sale of the Property represents sound business
judgment.

44. The Purchase Price of $10,000,000.00 is the highest
and best obtainable under present market conditions and
circumstances.

45. Time is of the essence with regard to obtaining
authorization to consummate the sale. Redstone
Properties and Redstone Acquisition have committed
substantial resources and reserved substantial capital to
undertake the purchase of the Property. Delaying the sale
until confirmation of a Plan of Reorganization would
result in potential loss of the sale to Redstone Acquisition
and loss of a viable purchaser of the Property.

46. In reference to any payments to be received from
the sale by either Jerry Crawford or Don Davis, there is

27a

Appendix E

no evidence of bad faith or evidence of unreasonableness
with regard to the Debtor’s estate. In light of the nature
of the Property, the claims against the Debtor’s estate,
and the parties making claims against the Property, sale
of the Property is the absolute best thing that can happen
to this Property. In light of that, and the sales price of
the Property, the payment of $700,000.00 is reasonable
under the circumstances.

It is therefore, ORDERED, ADJUDGED, AND
DECREED that:

1. The Debtor’s Motion to Sell is granted.

2. Final Judgment is awarded in favor of the Debtor in
the Adversary Proceeding. The Debtor is authorized to
sell to Redstone Acquisition full fee simple title to the
Property (including both the surface and mineral estates),
which includes both the Estate’s undivided interest in
the Property and the interests of the Co-Interest Owners
in the Property, pursuant to the terms of the Sale and
Purchase Agreement and this Order, free and clear of
all Encumbrances (herein defined), except for the
Permitted Encumbrances (herein defined). Specifically,
but without limitation, the Debtor is authorized to sell
to Redstone Acquisition full fee simple title to the
Property (including both the surface and mineral estates),
which includes both the Debtor’s undivided interest in
the Property and the interests of the Co-Interest Owners
in the Property, free and clear of all of the Unacceptable
Encumbrances (herein defined). As used herein, the term
“Encumbrances” shall mean any and all liens, claims,

28a
Appendix E

leases, mineral leases, outstanding mineral interests,
interests, rights, reservations, restrictions and other
matters and encumbrances that affect all or any portion
of the Property. As used herein, the term “Permitted
Encumbrances” shall mean those Encumbrances referred
to in (a) items 11, 12, 13, 15, 17, 19, 20, 21, 26, 34, 38,
51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 63 and 66 of
Schedule B to that certain Commitment for Title
Insurance (“Redstone Title Commitment”) issued by
Charter Title Company on behalf of Lawyers Title
Insurance Corporation, bearing GF No. 98030451,
having an effective date of December 29, 1999 and an
issued date of January 7, 2000, and (b) items 15, 16, 17,
19, 20, 21, 22, 24, 25, 35, 36, 40, 41, 46, 48, 49, 52, 53,
54, 55, 56, 57, 58, 59, 60, 63 and 66 of Schedule B to
that certain Commitment for Title Insurance (“Johnson
Title Commitment”) issued by Charter Title Company
on behalf of Lawyers Title Insurance Corporation
bearing GF No. 98030451-B, having an effective date
of December 29, 1999 and an issued date of January 7,
2000. The Redstone Title Commitment and the Johnson
Title Commitment are herein collectively called the
“Title Commitments”, and are attached hereto as
Exhibit “A” and incorporated herein. As used herein,
the term “Unacceptable Encumbrances” shall mean all
Encumbrances, save and except the Permitted
Encumbrances. The Unacceptable Encumbrances
specifically include, without limitation, (a) all of the
matters set forth in the Title Commitments, including
those matters set forth in Schedules B and C to the Title
Commitments, but expressly excluding the Permitted
Encumbrances, (b) all leases and other rights of

29a
Appendix E

occupancy in favor of EDCCI or any other party, (c) all
rights and other interests (including possessory rights)
of any party holding under EDCCI, including without
limitation, all subtenants, licensees, employees, agents,
officers, directors and shareholders of EDCCI and all
members of the golf club EDCCI has been or is operating
on a portion of the Property, (d) any homestead or other
claims or interests of Noble C. Ginther, Jr. or Amber
Ginther, (e) any interests or claims of F ergus M. Ginther
and Adriana Ginther and (f) all property, maintenance
and similar agreements. Debtor’s conveyance of full fee
simple title to the Property (including both the surface
and mineral estates) to Redstone Acquisition by Debtor
on its own behalf and on behalf of all of the Co-Interest
Owners shall be free and clear of all Encumbrances
(including the Unacceptable Encumbrances), except for
the Permitted Encumbrances.

3. The Debtor is authorized and directed, both on its
own behalf and on behalf of all of the Co-Interest
Owners, to execute and deliver all documents and
instruments necessary, appropriate or desirable to
complete a sale of the Property (which includes the
interests of the Debtor and the Co-Interest Owners in
the Property) to Redstone Acquisition upon such terms
and conditions as are described in, or contemplated by,
the Sale and Purchase Agreement. Such documents and
instruments include, but are not limited to, an instrument
entitled “Special Warranty Deed, Easement, Assignment,
Declaration of Restrictions and Other Agreements”
(“Deed”) in form acceptable to Debtor and Redstone
Acquisition which, among other things, (i) is sufficient

30a

Appendix E

to satisfy the requirements of Sections 5(b)(1) and
5(b)(2) of the Sale and Purchase Agreement, (ii) imposes
the restriction on the portion of the Land Debtor and the
Co-Interest Owners are retaining, such restriction being
described in Section 8(b) of the Third Amendment, (iii)
sets forth the agreement regarding Harris County Water
Control and Improvement District No. 96 contemplated
in Section 5(b)(1)(vii) of the Sale and Purchase
Agreement (such subpart (vii) being created by Section
4 of the Fifth Amendment), and (iv) creates the access
and utility easement referred to in Section 4 of the Sixth
Amendment. All such documents and instruments
(including the Deed) executed and delivered by the
Debtor on behalf of the Co-Interest Owners shall be
binding on such Co-Interest Owners to the same extent
and with the same effect as if the Co-Interest Owners
had themselves executed and delivered all such
documents and instruments (including the Deed).

4. At the closing (“Closing”) of the sale to Redstone
Acquisition, all costs and expenses of the sale shall be
paid out of the sales proceeds pursuant to the terms of
the Sale and Purchase Agreement. In addition, at
Closing, all ad valorem taxes on the Ranch through the
date of Closing shall be paid out of the sales proceeds,
including ad valorem taxes attributable to the interests
of the Debtor and the Co-Interest Owners , but excluding
any additional taxes arising because of changes in land
usage or ownership (the ad valorem taxes payable
out of the sales proceeds herein being called the
“Ad Valorem Taxes”). Ad Valorem Taxes and other
costs and expenses attributable to the interests of the

3la

Appendix E

Debtor shall be paid out of the Debtor’s portion of the
Net Proceeds, and Ad Valorem Taxes attributable to the
interests of each Co-Interest Owner shall be paid out of
each respective Co-Interest Owner’s share of the Net
Proceeds. The requirement that Co-Interest Owners pay
their pro rata portion of Ad Valorem Taxes shall not .
have any prejudicial effect on the Co-Interest Owners’

right to bring a claim against Debtor’s portion of the

Net Proceeds from the sale for payment of current or

past Ad Valorem Taxes. In no event shall any Co-Interest

Owner have any claim against the Property.

5. The net proceeds (“Net Proceeds”) of the sale of the
Property shall consist of the proceeds of the sale, less
(i) the costs and expenses of the sale, including but not
limited to all costs and expenses to be paid by Debtor at
Closing pursuant to the terms of the Sale and Purchase
Agreement, but not including any compensation to the
Debtor; and (ii) all Ad Valorem Taxes due and owing
on the Ranch. All valid liens, claims and encumbrances
against the Debtor are transferred to and shall attach to
the Debtor’s share of the Net Proceeds. All valid liens,
claims, and encumbrances against any Co-Interest Owner
are transferred to and shall attach to such Co-Interest
Owner’s share of the Net Proceeds except as provided
in paragraph 14 below.

6. At Closing, the Net Proceeds of the sale shall be
distributed as follows: that portion of the Net Proceeds
of the sale attributable to Debtor’s interest as reflected
on the Title Commitments shall be paid by Charter Title
Company to Debtor for deposit in an interest-bearing

32a

Appendix E

and separate account at Southwest Bank of Texas, N.A.
(“Debtor Net Proceeds Account”) pending further Order
of this Court; that portion of the Net Proceeds of the
sale attributable to the interests of the Co-Interest
Owners as reflected on the Title Commitments shall be
deposited by Charter Title Company in a separate
interest-bearing account pending distribution to the Co-
Interest Owners as provided in this Final Judgment. No
Co-Interest Owner shall receive any Net Proceeds until
such Co-Interest Owner signs and delivers to Charter
Title Company an affidavit pursuant to Section 1445 of
the Internal Revenue Code in a form reasonably
satisfactory to Redstone Acquisition. Each Co-Interest
Owner who has delivered such affidavit to Charter Title
Company will receive the Co-Interest Owner’s share of
the Net Proceeds plus accrued interest upon delivery of
the affidavit unless an objection to such distribution has
been filed with this Court (and a copy of such objection
has been received by Charter Title Company, 700
Louisiana, Suite 3340, Houston, Texas, 77002, Attn:
Mr. Garry L. Carr), or unless, in the opinion of Charter
Title Company, there are unresolved defects, liens, or
other matters that may affect title to the land or the
interest insured. In the event an objection to the
distribution of funds to a Co-Interest Owner is filed and
received by Charter Title Company, or in the event that,
in the opinion of Charter Title Company, there are
unresolved defects, liens, or other matters that may affect
title to the land or the interest insured, Charter Title
Company is hereby authorized to retain any such funds
in the interest-bearing account pending further Order of
this Court as to the proper distribution of such funds or

33a

Appendix E

to deposit such funds into the registry of this Court or if
such deposit is refused by this Court, any other court of
competent jurisdiction.

7. At the Closing of the sale to Redstone Acquisition,
the Debtor shall pay to Tebear Investments, Inc., out of
the Debtor’s portion of the Net Proceeds, the sum of
$75,000.00, representing the principal amount of Tebear
Investment, Inc.’s claim, plus interest in the amount of
$15,646.00, for a total payment of $90,646.00 (less
$18.50 per day that the Closing funds prior to April 1,
2000 or plus $18.50 per day that the Closing funds after
April 1, 2000). Upon payment by Redstone Acquisition
of the $10,000,000.00 Purchase Price, Tebear
Investments, Inc.’s lien on the Property shall be
automatically released without the necessity of taking
any further action; however, as Tebear Investment, Inc.’s
claim exceeds such sum, Tebear Investment, Inc.’s lien
is transferred to and shall attach to the Debtor’s share of
the Net Proceeds held in the Debtor Net Proceeds
Account.

8. Notwithstanding the provisions of paragraph 6 above,
at the Closing of the sale to Redstone Acquisition,
Charter Title Company shall deposit that portion of the
Net Proceeds attributable to the 3.125% interest in the
Property held by the estate of Noble C. Ginther into an
interest-bearing account at Southwest Bank of Texas,
N.A. to be jointly controlled by the Debtor and Bobbie
G. Bayless, Receiver. Such account shall be maintained
so long as the receivership over certain assets established
by Harris County, Texas, Probate Court No. 4, in Case

34a

Appendix E

No. 231,749-405, styled Elton M. Hyder, III, et al., v.
NationsBank of Texas, N.A., et al., continues, and shall
be held in that manner until any disputes concerning
ownership have been resolved or otherwise decided by
a court of competent jurisdiction.

9. Debtor is authorized to execute a letter authorizing
Charter Title Company to not issue an owner policy of
title insurance to Purchaser covering all of the Property,
but rather to issue two owner policies of title insurance,
one in favor of Redstone Acquisition covering a portion
of the Property and one to Redstone Acquisition’s
purchaser covering the remaining portion of the
Property; provided however, the total cost to Debtor and
the other Co-Interest Owners for such owner policies of
title insurance shall not exceed the cost which would
have been incurred by Debtor and the Co-Interest
Owners if one owner policy of title insurance in the
amount of $10,000,000 had been issued to Redstone
Acquisition covering all of the Property.

10. The Settlement Agreement is hereby approved. If
and only if the Closing of the sale actually occurs,
Redstone Acquisition is ordered to comply with its terms
by paying at Closing $300,000 to Noble C. Ginther, Jr.,
and Amber Ginther, jointly, and by paying $100,000 to
a segregated fund dedicated to severance pay for the
employees of EDCCI. The payments by Redstone
Acquisition are in addition to the $10,000,000 Purchase
Price for the Property. No payments are due Amber
Ginther from the Net Proceeds. If the Closing of the sale
does not occur for any reason whatsoever, including but

35a

Appendix E

not limited to default by Redstone Acquisition, no
amounts will be payable by Redstone Acquisition to
Noble and Amber Ginther under the Settlement
Agreement.

11. The Debtor shall prepare and file a statement of the
completion of the sale herein, including a description of
any and all documents or instruments executed and
delivered in connection therewith, and all proceeds
received from such sale, and include a copy of a deposit
slip showing the amount of Debtor’s Net Proceeds placed
in the Debtor’s interest-bearing account described herein,
a copy of a deposit slip showing the amount of the
Co-Interest Owners’ Net Proceeds deposited by Charter
Title Company, and an accounting of any Net Proceeds
not distributed to the Co-Interest Owners and the reason
such Net Proceeds were not distributed. The Debtor shall
serve a copy of such statement by mail on the United
States Trustee, the Official Committee of Unsecured
Creditors, all creditors, all Co-Interest Owners, all parties
requesting notice, and any other parties claiming an
interest in the Property, including all lienholders.

12. Any claims that might be made with respect to the
Property, the Debtor, or the distribution of the Net
Proceeds shall be asserted in this Court as part of this
case.

13. Notwithstanding any other provision herein, this
Order does not in any manner release, limit or affect the
obligations of Redstone Acquisition as buyer to comply
with all applicable law including, but not limited to,

36a

Appendix E

local, state, and federal rules, regulations, statutes,
permits and orders, pertaining to environmental
requirements. The provisions of this item 13 are based
on Redstone Acquisition’s understanding that the Texas
Natural Resource Conservation Commission
(“TNRCC’’) is not presently aware of any environmental
liabilities associated with the Ranch that are not related
to releases from the underground petroleum storage tanks
referred to in Exhibit “F” to the Purchase and Sale
Agreement dated November 5, 1998 between The
Ginther Trusts, A Texas Joint Venture, and Redstone
Properties.

14. Nucorp, Inc. is the record owner of a 9.375% interest
in the Property, as reflected by the Title Commitments,
and has complete authority to sell or otherwise deal with
such 9.375% interest in the Property, subject to
(a) execution of the affidavit pursuant to Section 1445
of the Internal Revenue Code referred to in paragraph 6
above and (b) release of the deed of trust liens filed under
Clerk’s File Nos. S037324 and $339624 in the Official
Public Records of Real Property of Harris County, Texas.
Nucorp, Inc. shall receive distribution of such 9.375%
interest in the Net Proceeds, subject to the provisions of
paragraph 6 above, free and clear of all liens and free
and clear of any lis pendens filed with respect to the
Property. While this Final Judgment, the disbursement
to Nucorp, Inc., and the findings of fact and conclusions
of law set forth herein shall not have res judicata or
collateral estoppel effect on Fergus Ginther’s or Adriana
Ginther’s state law claims against Nucorp, Inc. or Don
Davis, for purposes of this Final Judgment approving

37a

Appendix E

the sale of the Property, this Final Judgment constitutes
a final order of sale regarding the sale of the Property to
Redstone Acquisition, notwithstanding any subsequent
determination of Fergus Ginther’s and/or Adriana
Ginther’s state law claims against Nucorp, Inc. and Don
Davis.

15. Pursuant to Section 363(i) of the Bankruptcy
Code, before consummation of the sale to Redstone
Acquisition, any Co-Interest Owner, as identified on the
Title Commitments, may purchase the Property for the
sum of $10,000,000.00. It is anticipated that the sale to
Redstone Acquisition shall close on a date which is on
or after eleven days and on or before fourteen business
days after the date of entry of this Final Judgment. The
Debtor and Redstone Acquisition may extend the closing
date by written agreement to a date which is twenty-one
days after the date of entry of this Final Judgment. No
further extensions may be made without the agreement
of Noble and Amber Ginther and the approval of this
Court.

16. This Final Judgment constitutes a final appealable
judgment pursuant to Rule 58 of the Federal Rules of
Civil Procedure, as modified by Rule 9021 of the Federal
Rules of Bankruptcy Procedure. This Final Judgment
shall also be docketed in the Debtor’s main bankruptcy
case, being case No. 98-32663-H4-11, and shall
represent final disposition of both the Adversary
Proceeding and the Debtor’s Motion for Authority to
Sell Property Free and Clear of Liens and Encumbrances
Pursuant to 11 U.S.C. 363.

38a

Appendix E

Dated: 3/1/00

s/ William Greendyke
UNITED STATES BANKRUPTCY
JUDGE

Presented by:

s/ David P. McClain

David P. McClain

State Bar No. 13386020
McCLAIN & SIEGEL, P.C.

10565 Katy Freeway, Suite 450
Houston, Texas 77024
Telephone: (713) 722-7500
Facsimile: (713) 722-9675

Attorney for Debtor

s/ Julia A. Cook

Julia A. Cook

State Bar No. 01196200

SCHLANGER, MILLS, MAYER & SILVER, L.L.P.
109 North Post Oak Lane, Suite 300
Houston, Texas 77024

Telephone: (713)735-8561

Facsimile: (713) 785-1700

Attorney for Redstone Properties, LLC
and Redstone El Dorado Acquisition, L.P.

39a

Appendix E

s/ John F. Higgins (signed by permission by JAC)
John F. Higgins

State Bar No. 09597500

PorRTER & HEDGEs, L.L.P.

700 Louisiana St., 35th Floor

Houston, Texas 77002-2764

Telephone: (713) 226-0600

Facsimile: (713) 228-1331

Attorney for the Official Unsecured
Creditors’ Committee

s/ Joseph M. Hill

Joseph M. Hill

State Bar No. 09645500
CaGE, HILL & NieHaus, L.L.P.
5851 San Felipe, Suite 950
Houston, Texas 77057
Telephone: (713) 789-0500
Facsimile: (713) 974-0344

Attorney for Nucorp, Inc.
Approved as to form:

s/ Barry A. Brown (signed by permission by JAC)
Barry A. Brown

State Bar No. 03093000

7322 Southwest Freeway, Suite 1100

Houston, Texas 77074

Telephone: (713) 981-3880

Facsimile: (713) 981-3881

Attorney for Tebear Investments, Inc.

40a
Appendix E

Approved as to Form Only:

s/ Hayden Burns

Hayden Burns

State Bar No. 03456000

Burns, WooLey & MarsEGLiA, L.L.P.
1111 Bagby, Suite 4900

Houston, Texas 77002

Telephone: (713) 651-1559
Facsimile: (713) 651-0817

Attorney for Amber Ginther and
Noble C. Ginther, Jr.

Approved as to Form except as to
Paragraphs 5 and 14:

s/ Berry D. Bowen

Berry D. Bowen

State Bar No. 02721050

3100 Richmond Ave., Suite 500
Houston, Texas 77098
Telephone: (713) 5210-3525
Facsimile: (713) 521-3575

Attorney for Fergus M. Ginther and
Adriana N. Ginther

4la

Appendix E
Approved as to Form as to Paragraph 13 Only:

s/ Hal F. Morris

signed by permission

Edith Stuart Phillips
Hal F. Morris
Assistant Attorney General
Bankruptcy & Collections Division
P.O. Box 12548
Austin, Texas 78711-2548
Telephone: (512) 463-2173
Facsimile: (512) 482-8341

Attorney for Texas Natural Resource
Conservation Commission

42a

APPENDIX F — ORDER OF THE UNITED STATES
BANKRUPTCY COURT FOR THE SOUTHERN
DISTRICT OF TEXAS, HOUSTON DIVISION ON
MOTION TO DISMISS DATED AND
ENTERED JUNE 24, 1998

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

CASE NO. 98-32663
CHAPTER 11

IN RE:
THE GINTHER TRUSTS,
A TEXAS JOINT VENTURE

Debtor.
ORDER ON MOTION TO DISMISS

The Court has considered the Motion to Dismiss and
for Sanctions filed by Elton M. Hyder, III, et al. and finds
that the relief requested should be granted in part. The Court
finds that the case should be dismissed unless the Petition
and Schedules are amended within the time and in the manner
ordered herein, but that sanctions should not be imposed.
It is therefore,

ORDERED, that this case shall be dismissed without
further order of the Court unless Debtor, on or before June
26, 1998: (a) amends the Petition, Schedules and Statement
of Financial Affairs to provide that it is a joint venture
composed solely of the Nobel C. Ginther Grantor Trust

43a

Appendix F

a/k/a N.C. Ginther Grantor Trust; and (b) amends its
Schedules and Statement of Financial Affairs to provide that
the only property of the joint venture comprising Debtor’s
bankruptcy estate is its interests in or relating to the el Dorado
Golf Club, Inc. and the real estate known as the “El Dorado
Ranch” described in Debtor’s existing Schedules as
“undivided interest in approximately 2,033 acres of real
property located in Harris County, Texas.” It is further,

ORDERED that no other property, whether listed in the
Debtor’s existing Schedules or otherwise, is property of the
Debtor’s bankruptcy estate or subject to the automatic Stay
pursuant to 11 U.S.C. § 362. It is further,

ORDERED that the Debtor shall have the exclusive ri ght
to file a plan of reorganization up to and including September
9, 1998, and, if the Debtor files a plan within such exclusive
period, the Debtor shall have the exclusive right to seek
confirmation of a plan up to and including November 6, 1998.
It is further,

ORDERED that the deadline for filing Proofs of Claim
shall be extended to and expire on July 31, 1998. It is further,

ORDERED that a special meeting of creditors pursuant
to 11 U.S.C. § 341 shall be July 15, 1998 at 1:30 p.m. at 515
Rusk, Room 3401, Houston, Texas 77002. It is further,

ORDERED that the Clerk of Court shall serve a copy of
this Order on all creditors and parties in interest listed on
the mailing matrix or who have file notices of appearance in
this case.

44a

Appendix F
SIGNED on June 24, 1998.

s/ William Greendyke
UNITED STATES BANKRUPTCY
JUDGE

APPROVED AS TO FORM:

s/ Barnet B. Skelton, Jr.
Barnet B. Skelton, Jr.
State Bar No. 18456400
Fed Adm. No. 6962

909 Fannin, Suite 3845
Houston, Texas 77010
(713) 659-8761 — Phone
(713) 659-8764 — Fax

ATTORNEY FOR MOVANTS
David P. McClain, P.C.

s/ David P. McClain

David P. McClain

State Bar No. 13386020

6200 Texas Commerce Tower
600 Travis

Houston, Texas 77002

(713) 223-7744 — Phone
(713) 223-7747 — fax

ATTORNEY FOR THE GINTHER
TRUSTS, A TEXAS JOINT VENTURE

45a

Appendix F

s/ Nancy Holley

Nancy Holley

State Bar No. 09875550

Office of the United States Trustee
515 Rusk, Room 3516 j
Houston, Texas 77002 ;
(713) 718-4663 — Phone

(713) 718-4670 — Fax

ATTORNEY FOR THE UNITED STATES TRUSTEE

46a

APPENDIX G — ORDER OF THE UNITED STATES

BANKRUPTCY COURT FOR THE SOUTHERN

DISTRICT OF TEXAS, HOUSTON DIVISION

AFFIRMING “ORDER RESCINDING ORDER” AND

“ORDER DISPERSING FUNDS” DATED JANUARY 3,
2001 AND ENTERED JANUARY 4, 2001

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

CIVIL ACTION NO. H-00-1691
FERGUS M. GINTHER and ADRIANA N. GINTHER
Appellants,
versus

CHARTER TITLE COMPANY; NUCORP, INC.;
and DON J. DAVIS

Appellees.
ORDER

Pending before the Court is an appeal by Appellants
Fergus M. Ginther and Adriana N. Ginther (“Ginthers”) of
three orders of the United States Bankruptcy Court for the
Southern District of Texas (“bankruptcy court’) dated April
10, 2000: first, an “Order Depositing Interpleader Funds Into
the Registry of the Court in an Interest-Bearing Account’:
second, an “Order Rescinding Order”; and third, an “Order
Dispersing Funds.” Having considered the parties’

47a

Appendix G

submissions and the applicable law, the Court finds that the
orders of the bankruptcy court should be AFFIRMED.

I.

On March 11, 1998, The Ginther Trusts (“Debtor”) filed
a voluntary petition for bankruptcy relief. The bankruptcy
court held a trial on January 27, 2000, to consider a motion
by the Debtor to sell its 51% property interest in the
El Dorado Ranch located in Harris County, Texas. In an order
dated march 1, 200, the bankruptcy court held that Nucorp,
a co-owner of the El Dorado Ranch was entitled to a 9.375%
interest in the net proceeds of the sale of the property
(Instrument No. 19, Ex. 1 at 13). In addition, the court ruled
that appellee Don J. Davis (“Davis”), a majority shareholder
in Appellee Nucorp, Inc. (“Nucorp”), would receive
$350,000.00 pursuant to a previously arranged fee agreement.
The sale of the El] Dorado Ranch closed on March 23, 2000.
Appellee Charter Title Company (“Charter”) handled the
closing of the sale.

On March 3, 2000, following the bankruptcy court’s final
judgment, the Ginthers sent a letter to Charter expressing
their objection to the disbursement of any proceeds to Nucorp
or Davis. The letter requested that Charter “either retain the
funds in an interest bearing account or deposit any funds or
proceeds otherwise to be disbursed to Don J. Davis or
NuCorp, Inc. from the [property] sale [ ] into the registry of
the Bankruptcy Court or the registry of the 270th District
Court and interplead the claims of the Ginthers, Davis and
NuCorp in that proceeding.” (Instrument No. 18, Ex. 1(B),
at 1). Consequently, on approximately March 27, 2000,

48a

Appendix G

Charter filed an interpleader with the bankruptcy court and
tendered the net proceeds of the property sale into the court’s
registry. (/d. Ex. 1, at 2).

On April 10, 2000, the bankruptcy court issued three
orders, two of which are now the subject of the Ginthers’
appeal. First, the bankruptcy court ordered that the
interpleaded funds be deposited into the registry of the court
in an interest-bearing account. (Instrument No. 18, Ex. 2).
Second, the bankruptcy court then rescinded the previous
order because “the funds ordered interplead into the Registry
by Charter [ ] cannot be disbursed by the Clerk prior to a
seven-day clearing period ... [and] a more prompt
disbursement is necessary under the circumstances and in
light of its prior orders and judgment in this case.” (Jd.
Ex. 3). Third, the bankruptcy court ordered that the
interpleaded funds be endorsed to Joseph M. Hill, the
attorney for Nucorp and Davis. Upon receipt, Hill was
ordered to disburse the funds to Nucorp and Davis.

On April 19, 2000, in an emergency proceeding
requested by the Ginthers, Judge Lynn N. Hughes of the
United States District Court for the Southern District of Texas
denied the Ginthers’ motion to stay the bankruptcy court’s
April 10, 2000, disbursement order pending appeal.
(Instrument No. 12). Pursuant to Judge Hughes’ order, the
Ginthers’ filed their appellate brief on April 26, 2000.
(Instrument No. 16). In their appeal, the Ginthers contend
that the bankruptcy court did not have jurisdiction over
Charter’s interpleader because it did not implicate “the
debtor, its estate[,] or the administration thereof.” (/d. at 4).
The Ginthers also argue that the bankruptcy court’s orders

49a

Appendix G

deprived them of due process of law because they “were
entitled to have their claim heard as in an ordinary civil
action.” (/d. at 5). Finally, the Ginthers contend that this
Court has original jurisdiction over the interpleader. That
is, according to the Ginthers, the interpleader “arises” under
28 U.S.C.A. § 1335 (2000).

Nucorp and Davis filed their brief on April 28, 2000.
(Instrument No. 20). They maintain that the bankruptcy
court’s orders “were entered merely to enforce the
[bankruptcy court’s] prior ruling. As such, there was nothing
new in those orders, and nothing that [the] Ginther[s] could
separately appeal.” (Jd. at 5). Nucorp and Davis next argue
that under section 363(j) of the Bankruptcy Code the
bankruptcy court was authorized to make a determination of
the rights of co-owners of property sale proceeds. In any
event, according to Nucorp and Davis, the bankruptcy court
had ancillary jurisdiction over the interpleader because the
proceeds of the property sale had a direct relation to property
or assets of the Debtor. Finally, Nucorp and Davis assert
that the Ginthers are estopped from challenging the proceeds
distribution because, following the bankruptcy court’s final
judgment, the Ginthers sought relief in state court. They
contend that the issue has “already been fully considered
and rejected by the state court.”

Il.

The district court review de novo the decisions of the
bankruptcy court on matters of law. See Jn re Mendoza, 111
F.3d 1264, 1266 (Sth Cir. 1997). Bankruptcy court findings
of fact are reviewed under the clearly erroneous standard.

50a

Appendix G

See Fed. R. Bankr. P. 8013. However, a finding of fact
premised on an improper legal standard or on a proper legal
standard that is improperly applied “losses the insulation of

the clearly erroneous rule.” See In re Missionary Baptist
Found. Of Am., 818 F.2d 1135, 1142 (Sth Cir. 1987).

Il.

The Ginthers contend in this appeal that the bankruptcy
court was without jurisdiction to entertain the interpleader
filed by Charter. Consequently, the Ginthers maintain, the
bankruptcy court’s order directing the disbursement of the
proceeds from the sale of the debtor property to Nucorp and
Davis was improvidently issued. In contrast, Nucorp and
Davis assert that the bankruptcy court was merely enforcing
the final judgment it rendered on March 1, 2000. According
to Nucorp and Davis, the bankruptcy court’s disbursement
order was “entered merely to enforce [its] prior ruling. As
such, there was nothing new in [the disbursement order],
and nothing that [the] Ginther[s] could separately appeal.”
(Instrument No. 20, at 5).

The Court finds Nucorp and Davis’ reasoning persuasive.
The Ginthers’ assertion that the bankruptcy court “should
have adjudicated the competing claims prior to order
dispersal,” (Instrument No. 16, at 5), ignores the reality that
the bankruptcy court approved Nucorp’s share of the
proceeds in the March 2000 final judgment. In that judgment,
the bankruptcy court held that “Nucorp, Inc. is the record
owner of a 9.375% interest in the Property as reflected by
the Title Commitments and has complete authority to sell or
otherwise deal with such 9.375% interest in the Property.”

S5la

Appendix G

(Instrument No. 19, Ex. 1, at 13). The bankruptcy court also
ruled that “this Final Judgment constitutes a final order of
sale regarding the sale of the Property . . . notwithstanding
any subsequent determination of [the Ginthers’] state law
claims against Nucorp, Inc. and Don Davis.” (/d).

Ironically, although the Ginthers now object to the
bankruptcy court’s jurisdiction over Charter’s interpleader,
that proceeding was precisely the course of action they
recommended to Charter. In a letter dated two days after the
bankruptcy court’s final judgment, the Ginthers’ attorney
asserted an interest in the proceeds and requested that Charter
“either retain the funds in an interest bearing account or
deposit any funds or proceeds otherwise to be disbursed to
Don J. Davis or NuCorp, Inc. from the [property] sale [ ]
into the registry of the Bankruptcy Court . . . and interplead
the claims of the Ginthers, Davis and NuCorp in that
proceeding.” (Instrument No. 18, Ex. 1(B), at 1). In short,
the Ginthers desire to have their cake and eat it too.' In likely
anticipation that Charter would seek to avoid liability arising
from its disbursement of the proceeds, the Ginthers suggested
an interpleader in order to set the stage for an otherwise

‘untimely appeal of the bankruptcy court’s final judgment
issued on March 1, 2000.

The Ginthers correctly noted in their March 3, 2000,
letter to Charter that pursuant to the bankruptcy court’s final

1. This aphorism stems from the writings of English author
John Heywood. Originally, the adage was expressed as: “Would ye
both eat your cake and have your cake?” This and other colloquial
English phrases were first printed in The Proverbs of John Heywood
in 1546.

52a

Appendix G

judgment, they were entitled to object to the distribution for
the sale proceeds. In the final judgment however, the
bankruptcy court clearly ruled that it would be the forum to
address any objections. According to the bankruptcy court:

In the event an objection to the distribution of
funds to a Co-Interest Owner is filed and received
by Charter [ ], . . . Charter [ ] is hereby authorized
to retain any such funds in the interest-bearing
account pending further Order of this Court as
to the proper. distribution of such funds or to
deposit such funds into the registry of this Court,
or if such deposit is refused by this Court, any
other court of competent jurisdiction.

(Instrument No. 19, Ex. 1, at 11) (emphasis added).

Indeed, the bankruptcy court’s April 10, 2000, order
disbursing the funds awarded in this final judgment
represents its enforcement of the March 2000 final judgment.
See In re Chateauguay Corp., 201 B.R. 48, 62 (Bankr.
S.D.N.Y. 1996) (holding bankruptcy courts have “Inherent
jurisdiction to interpret and enforce its own orders and to
determine disputes”); see also In re Paris Indus. Corp., 132
B.R. 504, 508 (Bankr. D. Maine 1991) (holding that
bankruptcy courts have the authority to “enforce prior orders
and ‘secure or preserve the fruits and advantages of a
judgment or decree rendered therein. ... The proceeding
being ancillary and dependent, the jurisdiction of the court
follows that of the original cause .. .”). Although it was the
result of an interpleader, the bankruptcy court’s order merely
reiterated the final judgment. Accordingly, the Ginthers’ true

53a

Appendix G

means of redress of the bankruptcy court’s decision to grant
part of the proceeds to Nucorp and Davis was through a direct
appeal of the final judgment, not of the April 2000
disbursement order.

IV.

Based on the foregoing, the Court finds that the
bankruptcy court’s orders dated April 10, 2000, should be
AFFIRMED. The Court additionally finds that, because any
further appeals would be frivolous, this Order should not be
stayed.

The Clerk shall enter this Order and provide a copy to
all parties.

SIGNED on this the 3rd day of January, 2001, at
Houston, Texas.

s/ Vanessa D. Gilmore
VANESSA D. GILMORE
UNITED STATES DISTRICT
JUDGE

54a

APPENDIX H — ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF TEXAS, HOUSTON DIVISION DENYING MOTION
FOR STAY PENDING APPEAL DATED
AND ENTERED APRIL 11, 2000

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS

MC ACTION H-00-110
Ginther
versus
Charter Title
CONFERENCE MEMORANDUM

Date: 4-18-00

At the conference, these rulings were made:
(1) Motion for stay is denied (1).
(2) Ginther has until noon on April 21 to abandon in claim.

(3) If Ginther persists in its claim, Ginther must file a brief
by April 19, 2000.

(4) Defendants must respond by April 21, 2000.

55a

APPENDIX I — ORDER OF THE UNITED STATES
BANKRUPTCY COURT FOR THE SOUTHERN
DISTRICT OF TEXAS, HOUSTON DIVISION
DISPERSING FUNDS DATED AND
ENTERED APRIL 10, 2000

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

CASE NO. 98-32663-H4-11

IN RE:
THE GINTHER TRUSTS
DEBTOR
ADV. NO: 99-3058
THE GINTHER TRUSTS
Plaintiff

Vv.

NOBLE C. GINTHER, JR., ET AL and
CHARTER TITLE COMPANY

Defendants
ORDER DISPERSING FUNDS

In accordance with the court order allowing Charter Title
Company to place funds in Court’s registry in the respective

56a

Appendix I

amounts of $511,405.56, $350,000.00, and $224,352.38,
it is hereby ORDERED

3

The Clerk of Court is authorized to endorse the above-
referenced checks to Joseph Hill.

Upon receipt, Joseph Hill is Ordered to dispense the funds
to the following entities:

A) De Lange, Hudspeth, McConnell & Tibbets, L.L.P.
in the amount of $4,856.00;

B) Nucorp, Inc. in the amount of $509,129.84;

C) Don J. Davis in the amount of $223,334.47; and

D) Don J. Davis in the amount of $348.427.63.

Within 10 days of the entry of this order, Joseph Hill is
directed to file a certificate certifying that the above-
referenced disbursements were made in accordance with

this Order.

Signed this 10th day of April, 2000.

s/ William Greendyke
UNITED STATES BANKRUPTCY
JUDGE

57a

APPENDIX J — ORDER OF THE UNITED STATES
BANKRUPTCY COURT FOR THE SOUTHERN
DISTRICT OF TEXAS, HOUSTON DIVISION
RESCINDING ORDER DATED AND
ENTERED APRIL 10, 2000

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

CASE NO. 98-32663-H4-11

IN RE:
THE GINTHER TRUSTS
DEBTCR
ADV. NO: 99-3058
THE GINTHER TRUSTS
Plaintiff

Vv.

NOBLE C. GINTHER, JR., ET AL and
CHARTER TITLE COMPANY

Defendants
ORDER RESCINDING ORDER

This matter came before the Court on April 10, 2000.
At that hearing, the Court signed an Order Depositing

58a
Appendix J

Interpleader Funds into Registry of the Court in an Interest-
Bearing Account. Subsequent to that hearing, the Order was
entered by the Clerk’s Office.

The Court has now learned that the “original Order
Depositing Interpleader” was entered improvidently. It has
come to the Court’s attention that the funds ordered
interplead into the Registry by Charter Title cannot be
disbursed by the Clerk prior to a seven-day clearing period.
It is the Court’s conclusion that a more prompt disbursement
is necessary under the circumstances and in light of its prior
orders and judgment in this case. Consequently, by separate
form of order, the Clerk shall be authorized to receive from
Charter three checks in the amounts recited and to endorse
them in favor of Joseph M. Hill, who shall in turn be given
specific disbursement instructions by the Court. The
foregoing tender to the Clerk for endorsement shall constitute
sufficient compliance with this Court’s order for Charter to
“pay into the Registry” for interpleader purposes.

Therefore, for good cause found, it is hereby ORDERED
that the Order Depositing Interpleader Funds into Registry
of the Court in an Interest-Bearing Account is rescinded.

Signed this 10th day of April, 2000.
s/ William Greendyke

UNITED STATES BANKRUPTCY
JUDGE

59a

APPENDIX K — ORDER OF THE UNITED STATES
BANKRUPTCY COURT FOR THE SOUTHERN
DISTRICT OF TEXAS, HOUSTON DIVISION
DEPOSITING INTERPLEADER FUNDS INTO
THE REGISTRY OF THE COURT IN AN INTEREST-
BEARING ACCOUNT DATED AND
ENTERED APRIL 10, 2000

UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

NO. 98-32663-H4-11
(CHAPTER 11)

In re:
THE GINTHER TRUSTS,
a Texas joint venture,

Debtor

ADVERSARY NO. 99-3058

THE GINTHER TRUSTS,
a Texas joint venture

Plaintiff
VS.
NOBLE C. GINTHER, JR., ET AL

Defendants

60a

Appendix K

ORDER DEPOSITING INTERPLEADER FUNDS
INTO THE REGISTRY OF THE COURT IN AN
INTEREST-BEARING ACCOUNT

On March 29, 2000, Defendant, Charter Title Company,
filed with the Court its Motion for Interpleader, wherein it
requested that the funds held by it be deposited into the
registry of the court. The Court, having examined such
interpleader, and being of the opinion that such funds should
be deposited in an interest-bearing account, it is ORDERED
that the District Clerk place the funds interpled by Charter
Title Company, in the respective amounts of $511,405.56,
$350,000.00 and $224.352.38, totaling $1,085,757.94, into
an interest-bearing account at an approved depository
institution.

SIGNED this 10th day of April, 2000.

s/ William Greendyke
UNITED STATES BANKRUPTCY
JUDGE

6la

APPENDIX L — EXCERPTS FROM FIFTH AMENDED
AND RESTATED REVOCABLE TRUST AGREEMENT
DATED APRIL 7, 1989

FIFTH AMENDED AND RESTATED
REVOCABLE TRUST AGREEMENT

THE STATE OF TEXAS
COUNTY OF HARRIS

WHEREAS, NOBLE C. GINTHER and MINNIE LEE
GINTHER (the “Grantors”) created a revocable trust
agreement on the 29th day of December, 1986, with NOBLE
C. GINTHER as the Trustee (the “Trustee”’), such revocable
trust being known as the GINTHER REVOCABLE TRUST;
and

NOW THEREFORE, the trust agreement, known as the
Ginther Revocable Trust, as amended and restated by the
First Amendment, Second Amendment, Third Amendment
and Fourth Amendment is hereby amended and restated in
its entirety for the fifth time (“Fifth Amendment”) on this |
the 7th day of April, 1989 as follows, it being the express
intentions of both of the Grantors that any revocation of such
trust agreement heretofore attempted is wholly ineffective,
null and void:

THIS FIFTH AMENDED AND RESTATED
REVOCABLE TRUST AGREEMENT made and entered
into this 7th day of April, 1989, between NOBLE C. GINTHER
(the “Husband”) and MINNIE LEE GINTHER (the “Wife’’),

62a

Appendix L

of Houston, Texas as Grantors (the “Grantors”), and NOBLE
C. GINTHER , of Houston, Texas, as Trustee (the “Trustee’’).

ARTIC! I — BENEFICIARIES
AlD DISTRIBUTIONS

1.1 The trust initially created by this trust instrument
shall be known as the “GINTHER REVOCABLE TRUST.”
The Trustee shall hold, manage, sell, exchange, invest and
reinvest the trust property, collect all income and, after deducting
such expenses as are properly payable, shall accumulate and
distribute the income and principal as herein provided.

* *” *

1.4 Following the death of the first Grantor to die
(hereafter called the “deceased Grantor”), the Trustee shall
divide all of the then remaining trust property into two
separate shares, which may be unequal in value. One of such
shares shall initially contain that portion of the trust property
which constituted the community and separate property of
the surviving Grantor (hereinafter called the “surviving
Grantor”). This share, which shall be known by the name of
the surviving Grantor (though hereinafter called the
“surviving Grantor’s Trust”), shall be held, administered and
distributed as provided in Article II. The other share shall
initially contain that portion of the trust property which
constituted the community and separate property of the
deceased Grantor. This share, which shall be known by the
name of the deceased Grantor (though hereinafter called the
“deceased Grantor’s Trust’), shall be held, administered and
distributed as provided in Article III.

* * *

63a

Appendix L
ARTICLE II — SURVIVING GRANTOR’S TRUST

* * *

2.5 Upon the death of the surviving Grantor, any accrued
but unpaid net income of the surviving Grantor’s Trust shall
be distributed to the surviving Grantor’s estate and the
remaining unappointed trust principal of the surviving
Grantor’s Trust (which remains after making any payments
provided in section 2.4), together with all property received
by the Trustee under the Will of the surviving Grantor and
all other property received by the Trustee as the result of the
death of the surviving Grantor, shall be added to the principal
of the deceased Grantor’s Trust to be held, administered and
distributed as provided in Article III as a part of the deceased
Grantor’s Trust.

* * *

ARTICLE IV — TRUSTEE APPOINTMENTS

4.] If the Husband resigns or otherwise ceases to act as
Trustee, then the Wife and RIVER OAKS TRUST
COMPANY shall immediately become.Co-Trustees of all
trusts created by this Trust Agreement. On the death of the
first Grantor to die, the surviving Grantor and RIVER OAKS
TRUST COMPANY shall immediately become Co-Trustees
of all trusts created by this Trust Agreement to serve with
any Trustee of Trustees then serving. Unless another meaning
is Clearly indicated or required by context of circumstance,
the term “Trustee” shall mean and include any co-fiduciaries,
alternates or successors.

* 2K * *

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1760%3A2. Public record. Not legal advice.