EXHIBIT
FIDUCIARY CAPITAL PENSION PARTNERS, L.P.
LIQUIDATING TRUST AGREEMENT
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FIDUCIARY CAPITAL PENSION PARTNERS, L.P.
LIQUIDATING TRUST AGREEMENT
Liquidating Trust Agreement made in Denver, Colorado this 31st day of
December, 2001, to be effective at the close of business on December 31, 2001
(the "Effective Time"), by and between Fiduciary Capital Pension Partners, L.P.,
a Delaware limited partnership (the "Partnership") and Stone Pine Accounting
Services, LLC, a Colorado limited liability company (the "Trustee").
WHEREAS, pursuant to Section 9.1 of the Partnership's Second Amended
and Restated Agreement of Limited Partnership (the "Partnership Agreement"), and
Section 17-801(1) of the Delaware Revised Uniform Limited Partnership Act (the
"Act"), the Partnership was dissolved on December 31, 2000, and the
Partnership's General Partners have adopted a Plan of Liquidation on March 2,
2001; and
WHEREAS, the Partnership has distributed substantially all of its
assets, and has satisfied substantially all its liabilities; and
WHEREAS, the Partnership and its General Partners wish to transfer the
Partnership's remaining uncollected and non-liquidated assets, which are
contingent and restricted and therefore difficult to liquidate, plus an amount
of cash to support the collection of such assets, together with the proceeds
therefrom and any contingent and unknown assets of the Partnership that come
into the custody of the Trustee after the Effective Date (the "Assets"), into a
liquidating trust (the "Liquidating Trust"), to allow for the collection of such
contingent and restricted and other assets, which are listed on Exhibit A
hereto, and the satisfaction of contingent and unknown liabilities of the
Partnership (the "Liabilities"); and
WHEREAS, the Partnership intends to file a Certificate of Cancellation
with the Delaware Secretary of State to be effective at the Effective Time to
terminate and cancel the Partnership's existence under the Act as of that date;
and
WHEREAS, the General Partners of the Partnership unanimously approved
and authorized the execution of this Liquidating Trust Agreement at a meeting
held on December 17, 2001.
NOW, THEREFORE, for good and valuable consideration, receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Name and Beneficiaries. The name of the Liquidating Trust shall be the
"Fiduciary Capital Pension Partners Liquidating Trust." Each Limited Partner and
the Managing General Partner (as such terms are defined in the Partnership
Agreement) of the Partnership at the Effective Time (the "Beneficiaries") shall
have a beneficial interest in the Assets initially in proportion to such
partner's beneficial interest in the Partnership on such date.
2. Purpose. The sole purpose of this Liquidating Trust Agreement and of the
appointment of the Trustee hereunder is to provide for the administration and
collection of certain contingent or restricted assets until they can be
collected and freely disposed of and funds for the discharge of Liabilities, if
any. Assets held by the Trustee under this Liquidating Trust Agreement shall be
applied solely to the payment of (i) the Liabilities, and (ii) the monthly fee
provided for herein and reimbursement of reasonable costs and expenses incurred
by the Trustee in the performance of its obligations hereunder. Nothing
contained herein shall be construed so as to constitute the Beneficiaries, or
their successors in interest, members of
an association. Further, the trust created hereby shall have no objective to
continue or engage in the conduct of a trade or business.
3. Trustee. Stone Pine Accounting Services, LLC, a Colorado limited liability
company, (including any successor) is hereby appointed as Trustee under this
Liquidating Trust Agreement. The Trustee is an affiliate of the Managing General
Partner of the Partnership, which is a Beneficiary of the Liquidating Trust.
4. Assets Placed in Trust. The Partnership hereby grants, delivers, transfers,
releases, sets over and conveys to the Trustee for the benefit of the
Beneficiaries, all of the Partnership's right, title and interest, of whatever
nature, whether tangible or intangible, xxxxxx or inchoate, in the Assets to
hold, administer, collect, through legal process or otherwise, and distribute as
provided herein, and assigns to the Trustee all of the Liabilities, subject to
the payments authorized hereunder. The Trustee hereby accepts such Assets and
Liabilities solely as Trustee and not personally, subject to the terms and
provisions hereof.
5. Condition of Trust. The Trustee hereby accepts the trust created by this
Liquidating Trust Agreement and agrees to execute the trust upon the conditions
hereof, including the following:
5.1 The Trustee shall receive as compensation for its services
hereunder the amount of $1,000 per month to be paid from the Assets.
The Trustee shall be reimbursed monthly from the Assets for all
reasonable costs and expenses incurred by it in the performance of its
obligations hereunder.
5.2 The Trustee shall not be personally liable for any assessments,
charges, or damages, or for any obligations in carrying out or
effectuating the purpose of this Liquidating Trust Agreement, provided,
however, that nothing shall relieve the Trustee from liabilities
arising out of its own willful misconduct, bad faith, or gross
negligence or reckless disregard of the Trustee's duties to the
Liquidating Trust. Should any Liability be asserted against the Trustee
as the transferee of the Assets or as the result of the assumption
thereof, the Trustee may use such part of the Assets as may be
necessary in contesting any such Liability or in payment thereof, but
in no event shall the Trustee be personally liable solely as a result
of being Trustee hereunder. The Trustee shall serve without bond.
5.3 The Trustee shall not be responsible in any manner whatsoever for
the validity or sufficiency of this Liquidating Trust Agreement.
5.4 The Trustee shall be protected in acting upon any writing believed
by it to be genuine.
5.5 The Trustee shall not be liable for any acts or omissions of any
agents acting on its behalf elected or appointed by it in good faith.
5.6 The Trustee may consult with legal counsel, accountants,
appraisers, or other professional consultant, and any act or failure to
act done or omitted in good faith in accordance with the opinion of any
such person shall create no liability on the part of the Trustee.
5.7 The Trustee and each partner, officer, agent or representative of
the Trustee shall be indemnified out of the assets of the Liquidating
Trust against all liabilities and expenses, including amounts paid in
satisfaction of judgments, in compromise or as fines and penalties, and
attorney's fees, reasonably incurred in connection with the defense or
disposition of any action, suit or other proceeding, whether civil,
administrative or criminal, and whether filed or threatened, which
arises out of being the Trustee or such partner, officer, agent or
representative, provided, however, no person shall be entitled to such
indemnification with respect to any matter
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where such person is found to have acted in bad faith or with willful
misconduct, gross negligence or reckless disregard of such person's
duties to the Liquidating Trust.
6. Powers of the Trustee. The Trustee shall have the following powers:
6.1 To endorse, deposit, and collect any and all notes, checks, bills
of exchange, trade acceptance, and other instruments for the payment of
money, in the name of the Partnership or otherwise, that the Trustee
may receive in connection with the Assets or Liabilities.
6.2 To determine the amounts of any consideration to be received for or
with respect to any sale or other disposition of any property of the
Liquidating Trust, and to collect, liquidate or otherwise convert into
cash all property, assets and rights in the Assets, and to pay,
discharge and satisfy all claims, expenses, charges relating to the
Liabilities and other obligations with respect to the Assets, the
Liquidating Trust and the Trustee as mandated by Section 17-804 of the
Act.
6.3 To invest amounts received by it as Trustee, pending distribution,
but such investment powers shall be limited to investments in money
market funds of the highest quality.
6.4 Generally, to do everything necessary or advisable in order to
carry out the purpose of this Liquidating Trust Agreement, including
appointing, engaging or retaining any agent, representative or other
independent contractor to serve the interests of the Beneficiaries.
7. Distributions. The Trustee shall make distributions to the Beneficiaries of
income or proceeds received from the Assets held in trust, from time to time in
its sole discretion.
8. Beneficiaries. The initial beneficial interest of each former Limited Partner
and the former Managing General Partner as a Beneficiary hereof shall be
determined by the Trustee in accordance with a certified copy of the
Partnership's unitholder list from the Partnership's transfer agent as of the
Effective Time. The Trustee shall express the beneficial interest of each
Beneficiary in terms of units ("Units"). A Beneficiary shall have no title to,
or right to the possession, management or control of, the Assets, and no spouse,
heir or devisee of any Beneficiary shall have any rights of dower, homestead,
inheritance, partition, or of any other right with respect to the Assets or the
proceeds therefrom. The Units may not be transferred, sold, assigned, encumbered
or otherwise disposed of either by the Beneficiary in person or by a duly
authorized agent or attorney or a legal representative, provided, however, that
the Units may be transferred or assigned by will, intestate succession or
operation of law. Since the Units are non-transferable, the Units shall not be
subject to attachment, execution, sequestration or any similar order of any
court for liquidation to satisfy the debts, obligations or liabilities of any
Beneficiary. If a conflicting claim or demand is asserted with respect to the
ownership of Units, the Trustee shall be entitled, at its sole discretion, to
refuse to comply with any conflicting claim or demand and the Trustee may elect
to make no payment or distribution with respect to such Units, or to make such
payment to a court of competent jurisdiction, until such competing claims are
resolved to the Trustee's satisfaction, and in doing so, the Trustee shall not
be liable for any amounts to any such parties for its refusal to comply with any
such claim or demand.
9. Report to Beneficiaries. As soon as practicable after the end of each
calendar year during the existence of the Liquidating Trust and after the
termination of the Liquidating Trust, the Trustee will mail a written report to
the Beneficiaries showing: (i) the assets and liabilities of the Liquidating
Trust at the end of such calendar year together with an unaudited balance sheet
for the Liquidating Trust as of the end of such year prepared by the Trustee in
accordance with generally accepted accounting principles; (ii) any changes in
the Assets not previously reported; and (iii) any material action taken by the
Trustee not previously reported. To the extent mandated by applicable securities
laws, such written report shall be filed by
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XXXXX with the U.S. Securities and Exchange Commission (the "Commission") under
cover of a Form 10-K with the Commission I.D. number of the Partnership within
90 days of the end of such year or as soon as practicable after the termination
of the Liquidating Trust. So long as the Trust is obligated to file reports with
the Commission under applicable securities laws, the Trustee will report to the
Beneficiaries as soon as practicable during the existence of the Liquidating
Trust after a material event relating to the Liquidating Trust occurs and file a
copy of such report under cover of a Form 8-K by XXXXX with the Commission. As
soon as practicable after the close of any taxable year, the Trustee shall mail
to any person who was a Beneficiary during such year such information as is
reasonably necessary for the Beneficiary to be able to prepare its income tax
returns for the previous year in an accurate and complete manner.
10. Appointment and Resignation of Trustees. A Co-Trustee may be appointed by
the existing Trustee or a majority of the existing Co-Trustees by giving written
notice to the Beneficiaries at least fifteen calendar days before the new
Co-Trustee takes office. Prior to taking office, the new Co-Trustee shall
execute a written consent to act as Trustee under the terms of this Liquidating
Trust Agreement. A Co-Trustee may resign at any time by delivering to the other
Co-Trustee(s) its written resignation and delivering written notice to the
Beneficiaries at least fifteen calendar days before the resignation takes
effect. Upon the inability to act of a Co-Trustee, the vacancy thereby occurring
shall be filled by the appointment of a successor named by the remaining
Co-Trustee or a majority of the remaining Co-Trustees and such successor shall
execute a written consent to act as Trustee under the terms of this Liquidating
Trust Agreement. If at any time prior to the termination of this Liquidating
Trust pursuant to Section 11 below, there is no Trustee because of the
resignation or inability to act of the last Trustee with no successor appointed,
a Trustee may be appointed by the written consent of Beneficiaries holding at
least a majority of the Units then outstanding.
11. Termination of Trust; Discharge of Trustees. Upon the collection or
liquidation of the final Asset held in trust under this Liquidating Trust
Agreement, the Liquidating Trust and this Liquidating Trust Agreement shall
terminate, whereupon the Trustee shall distribute to the Beneficiaries all the
remaining funds held by the Trustee pursuant hereto, in proportion to the
Beneficiaries' respective interest, subject to the prior satisfaction of all
Liabilities as mandated by the Act. The Trustee shall provide written notice of
the effective date of the termination of the Liquidating Trust to the
Beneficiaries, and, to the extent the Trust is then obligated to file reports
with the Commission under applicable securities laws, shall file such notice by
XXXXX with the Commission under cover of a Form 8-K. Following such distribution
and notice to the Beneficiaries, the Trustee shall be fully released and
discharged and its duties hereunder shall cease. Upon termination, the Trustee
shall provide for the retention of the books, records, lists of holders of
Units, and other files which have been delivered to or created by the Trustee
for a period of at least six years and six months after the end of the year
during which the Liquidating Trust is terminated.
12. Tax Matters. It is intended that the granting, assignment and conveyance of
the Assets hereunder to the Trustee for the benefit of the Beneficiaries shall
be treated for federal, state and local income tax purposes as if the
Partnership made such distributions directly to the partners of the Partnership.
It is further intended that for federal, state and local income tax purposes,
the Liquidating Trust shall be treated as a liquidating trust under Treasury
Regulation Sec. 301.7701-4(d) and any analogous provision of any state or local
law or regulation, and the Beneficiaries shall be treated as the owners of their
respective share of the Liquidating Trust pursuant to Secs. 671 through 678 of
the Internal Revenue Code of 1986, as amended, and any analogous provision of
state or local law or regulation, and shall be taxed on their respective share
of the Liquidating Trust's taxable income. The Trustee shall file all tax
returns required to be filed with any governmental agency consistent with its
position, including, but not limited to, any returns required of grantor trusts
pursuant to Treasury Regulation Sec. 1.671-4(a).
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13. Amendment. If the Trustee determines, based upon the written advice of
counsel, that this Liquidating Trust Agreement requires an amendment to make
ministerial or administrative improvements in the management of the Liquidating
Trust or to correct, clarify, support or complete the rights and benefits of the
Beneficiaries (including the treatment for tax purposes) purported to be
provided hereunder, the Trustee may make such amendment to the terms of this
Liquidating Trust Agreement by giving written notice of such amendment to the
Beneficiaries at least fifteen calendar days prior to the effective date of such
amendment, provided, however, such amendment shall not have a material adverse
affect on the rights and benefits of the Beneficiaries hereunder. Any amendment
hereto that is not adopted in accordance with the preceding sentence, may
nevertheless be adopted if approved by the written consent of Beneficiaries
holding at least a majority of the Units then outstanding. Such amendment may be
proposed by the Trustee or by Beneficiaries who hold at least 25% of the of the
Units then outstanding in a written proposal to the Trustee.
14. Construction. This Agreement shall be governed by and interpreted and
construed under the laws of the State of Delaware.
15. Third Party Beneficiaries. This Agreement is entered into between the
Partnership and the Trustee for the benefit of the Beneficiaries and to fix the
rights and obligations of the Trustee. This Agreement shall be binding upon such
parties, their heirs, executors, administrators, and assigns. This Agreement is
expressly not intended for the benefit of any creditor of any such persons.
Except and only to the extent provided by applicable statute, no such creditor
or any other third party shall have any rights under this Agreement.
16. Severability. If any provision of this Agreement or the application hereof
to any person or circumstance shall be found to be invalid, illegal or
unenforceable to any extent, the remainder of this Agreement and the application
hereof shall not be affected and shall be enforceable to the fullest extent
permitted by law.
IN WITNESS WHEREOF, the parties have executed this Liquidating Trust Agreement
as of the day and year first above written.
FIDUCIARY CAPITAL PENSION PARTNERS, STONE PINE ACCOUNTING SERVICES,
L.P. LLC
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------
By: FCM Fiduciary Capital Management Name: Xxxxxx X. Xxxxxxx
Company, Managing General Partner Title: Managing Member
By: FCM Fiduciary Capital Corporation,
Managing General Partner
By: /s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
Title: Chairman
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EXHIBIT A
1. Cash in the amount $187,811.41, and various receivables totaling
$43,960.14.
2. Receivable from Niigata Engineering Co., Ltd. in the amount of $28,179,
due May 21. 2002, and all contract and other rights in connection
therewith.
3. 821,376 shares of restricted common stock of Environmental Energy
Services, Inc., and all contract and other rights in connection
therewith.
4. 4,476,500 shares of common stock, 71,961 shares of Class B preferred
stock, 239,600 shares of Class C preferred stock, $1,632,960 principal
amount of 12.00% Senior Subordinated Revolving Notes, and $14,096
principal amount of 12.00% Promissory Notes, of LMC Corporation, and
all contract rights and other rights in connection therewith.
5. Such other assets of the Partnership that come into the custody of the
Trustee after the Effective Date.
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