SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Commission file number 000-24713
EBS Pension, L.L.C.
(Exact name of registrant as specified in its charter)
Delaware 42-1466520
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
Sixth and Marquette
Minneapolis, Minnesota 55479-0069
(Address of principal executive offices)
(612) 667-4803
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes [X] No [ ]
At November 1, 1999 there were 10,000,000 Class A Membership Units outstanding
and no Class B Membership Units outstanding.
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
EBS PENSION, L.L.C.
Statement of Operations
For the Three and Nine Month Periods Ended September 30, 1999 and 1998
----------------------------------------------------------------------
For the three months For the nine months
ended September 30, ended September 30,
1999 1998 1999 1998
(unaudited) (unaudited) (unaudited) (unaudited)
Income:
Interest $ 19,589 $ 50,460 $ 58,414 $278,275
-------- -------- -------- --------
Total income $ 19,589 $ 50,460 $ 58,414 $278,275
======== ======== ======== ========
Expenses:
Transfer agent and settlement
administration fees $ 28,000 $ 12,000 $ 54,000 $ 55,060
Legal fees 21,396 27,500 47,346 82,600
Manager fees 12,056 12,467 37,127 50,961
Accounting fees 2,000 9,000 5,000 14,000
Other 179 172 6,010 272
-------- -------- -------- --------
Total expenses 63,631 61,139 149,483 202,893
-------- -------- -------- --------
Net (loss) income $(44,042) $(10,679) $(91,069) $ 75,382
======== ======== ======== ========
The accompanying notes are an integral part of these financial statements.
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EBS PENSION, L.L.C.
Balance Sheet as of
September 30, 1999 and December 31, 1998
----------------------------------------
September 30, December 31,
1999 1998
------------- ------------
(unaudited)
Assets
Cash and cash equivalents
Available for general operations $ 359,980 $ 286,927
Available for anticipated cost of legal 1,500,000 1,500,000
indemnification of officers
Interest and distribution receivable 7,035 14,313
---------- ----------
Total assets $1,867,015 $1,801,240
========== ==========
Liabilities
Accrued expenses $ 52,060 $ 112,531
Overdrawn cash balance - 7,703
---------- ----------
Total liabilities $ 52,060 $ 120,234
========== ==========
Members' equity:
Membership Units (Class A - 10,000,000
authorized, 10,000,000 and 10,000,000 issued
and outstanding at September 30, 1999 and
December 31, 1998, respectively; Class B - 0
and 0 authorized, issued and outstanding at
September 30, 1999 and December 31, 1998,
respectively)
Paid-in capital 1,892,510 1,667,492
Retained earnings (77,555) 13,514
---------- ----------
Total members' equity 1,814,955 1,681,006
---------- ----------
Total liabilities and members' equity $1,867,015 $1,801,240
========== ==========
The accompanying notes are an integral part of these financial statements.
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EBS PENSION, L.L.C.
Statement of Changes in Members' Equity
For the Nine Months Ended September 30, 1999
and for the Year Ended December 31, 1998
--------------------------------------------
Class A Class B
Membership Membership Paid in Retained
Units Units Capital Earnings Total
Balance, December 31, 1997 9,058,041 941,959 $ 43,985,315 $(51,910) $ 43,933,405
Capital distribution - - (42,318,251) - (42,318,251)
Units transferred 942,238 (942,238) - - -
Units and proceeds returned
from June distribution (279) 279 428 - 428
Period income - - - 65,424 65,424
---------- -------- ------------ -------- ------------
Balance, December 31, 1998 10,000,000 - 1,667,492 13,514 1,681,006
Proceeds from canceled
checks (unaudited) 225,018 225,018
Year-to-date loss
(unaudited) - - - (91,069) (91,069)
---------- -------- ------------ -------- ------------
Balance, September 30, 1999
(unaudited) 10,000,000 - $ 1,892,510 $(77,555) $ 1,814,955
========== ======== ============ ======== ============
The accompanying notes are an integral part of these financial statements.
4
EBS PENSION, L.L.C.
Statement of Cash Flows
For the Nine Months Ended September 30, 1999 and 1998
-----------------------------------------------------
For the nine months ended
September 30,
1999 1998
(unaudited) (unaudited)
Cash flows from operating activities:
Net (loss) income $ (91,069) $ 75,382
Reconciliation of net (loss) income to cash flows
provided by operating activities:
Decrease in amounts due from Edison Brothers
Stores, Inc. - 43,985,315
Decrease (increase) in interest and distribution
receivable 7,280 (15,935)
Decrease (increase) in liabilities (68,176) 110,511
------------ ------------
Cash flows (used for)/provided by operating
activities (151,965) 44,155,273
------------ ------------
Cash flows from financing activities:
Proceeds from canceled checks 225,018
Capital distribution, net - (39,977,093)
------------ ------------
Cash flows used for financing activities 225,018 (39,977,093)
Net increase in cash and cash equivalents 73,053 4,178,180
Cash and cash equivalents at beginning of period 1,786,927 -
------------ ------------
Cash and cash equivalents at end of period $ 1,859,980 $ 4,178,180
============ ============
The accompanying notes are an integral part of these financial statements.
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EBS PENSION, L.L.C.
Notes to Financial Statements
September 30, 1999 and December 31, 1998
- --------------------------------------------------------------------------------
1. Description of business
EBS Pension, L.L.C.. (the "Company") is governed by a Members Agreement,
dated as of September 25, 1997 (the "Members Agreement"). Pursuant to the
Members Agreement, the Company is organized for the exclusive purposes of (a)
receiving and administering the cash proceeds to be received by Edison
Brothers Stores, Inc. ("Edison") and its affiliated debtors in possession
(collectively with Edison, the "Debtors") as a result of the termination of
the Edison Brothers Stores, Inc. Pension Plan (the "Pension Plan"), net of
(i) the Pension Plan assets transferred to qualified replacement pension
plans, (ii) all costs, fees and expenses relating to termination of the
Pension Plan and establishment of replacement plans, and (iii) all applicable
taxes incurred or for which a reserve is established in connection with
termination of the Pension Plan (the "Net Pension Plan Proceeds"), and (b)
distributing such Net Pension Plan Proceeds to holders of Class A Membership
Units (the "Members") in accordance with the Members Agreement.
2. Summary of significant accounting policies
This summary of significant accounting policies is presented to assist in
evaluating the Company's financial statements included in this report. These
principles conform to generally accepted accounting principles. The
preparation of financial statements in conformity with generally accepted
accounting principles requires that the Company's management make estimates
and assumptions that impact the reported amounts of assets and liabilities as
of the date of the financial statements and the reported amounts of revenues
and expenses during the reporting period. Actual results could differ from
those estimates.
Basis of presentation
These financial statements include the accounts of the Company for the
periods from January 1, 1998 through December 31, 1998, January 1, 1998
through September 30, 1998 (unaudited) and January 1, 1999 through September
30, 1999 (unaudited), July 1, 1998 through September 30, 1998 (unaudited)
and July 1, 1999 through September 30, 1999 (unaudited).
Cash and cash equivalents
Cash and cash equivalents consists of amounts held in an account in the
Company's name at a highly-rated financial institution, along with U.S.
Treasury Securities purchased and held in the Company's name.
Accrued expenses
Accrued expenses include amounts for unpaid legal, tax, accounting, manager
and transfer agent fees. Amounts are payable within one year.
Interest
Interest income is determined on the accrual basis. Interest receivable is
due to be received within one year.
Expenses
All expenses of the Company are recorded on the accrual basis of accounting.
Income taxes
The Company is not subject to taxes. Instead, holders of Class A Membership
Units report their distributive share of the Company's profits and losses on
their respective income tax returns.
3. Members' equity
On September 25, 1997, Edison transferred the right to receive the Net
Pension Plan Proceeds from the termination of the Pension Plan in exchange
for 10,000,000 Class B Membership Units of the Company, which represented all
of the outstanding Membership Units of the Company. The Net Pension Plan
Proceeds amounted to $43.9 million at December 31, 1997 and were due from
Edison at that date. Pursuant to the Plan of
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EBS PENSION, L.L.C.
Notes to Financial Statements
September 30, 1999 and December 31, 1998
- --------------------------------------------------------------------------------
Reorganization, an additional amount of $5.7 million (the "Pension Plan Tax
Reserve") was to be held by Edison to satisfy certain fees and tax
liabilities of Edison. The Plan of Reorganization further provided that upon
receipt of a private letter ruling (the "Tax Ruling") from the Internal
Revenue Service (the "IRS") indicating that no tax liability existed
necessitating release of funds from the Pension Plan Tax Reserve that Edison
should remit such funds to the Company. On September 28, 1998, the IRS issued
the Tax Ruling. To date, however, Edison has not released the funds held in
the Pension Plan Tax Reserve to the Company. Some portion of the Pension Plan
Tax Reserve may ultimately be distributed by Edison to the Company. The
amount of such distribution (if any), however, cannot be determined at this
time. See Note 5 hereof for further discussion of the Pension Plan Tax
Reserve.
On December 12, 1997, in accordance with the Members Agreement and the Plan
of Reorganization, Edison exchanged 9,058,041 Class B Membership Units for
9,058,041 Class A Membership Units of the Company and simultaneously
distributed such Class A Membership Units to holders of Allowed General
Unsecured Claims.
During 1998, Edison paid $43.9 million to the Company in satisfaction of the
Company's receivable recorded at December 31, 1997. Of this amount, $42.3
million was distributed to holders of Class A Membership Units during 1998,
$1.5 million is retained for the anticipated cost of legal indemnification of
the officers of Edison, and the remaining amount is retained for other
anticipated expenses expected to be incurred by the Company.
During 1998, Edison exchanged 942,238 Class B Membership Units for 942,238
Class A Membership Units of the Company and simultaneously distributed such
units to holders of Allowed General Unsecured Claims.
Also during 1998, certain Class A Membership Unit holders returned 279 Class
A Membership Units to Edison as such Membership Units had been distributed in
error. The distribution proceeds relating to these returned Membership Units
are included in paid in capital and were available for future distributions
to holders of Class A Membership Units. At December 31, 1998, Edison has no
Class B Membership Units, authorized, issued or outstanding.
(The information below has not been subjected to an audit.)
On August 17, 1999, $225,018 of proceeds distributed in February 1998 were
returned as the checks issued did not clear the bank within the 18-month
period.
4. Related parties
The Manager of the Company is the same financial institution that holds the
Company's cash and cash equivalents.
5. Commitments and contingencies (unaudited)
On March 9, 1999, Edison and certain affiliated entities (collectively, the
"1999 Debtors") filed for protection under Chapter 11 of the Bankruptcy Code
(the "Petition Date"). Prior to the Petition Date, Edison had not yet
released the Pension Plan Tax Reserve to the Company. Therefore, the 1999
Debtors' Chapter 11 filing may have a materially adverse impact on the
collectibility of the Pension Plan Tax Reserve discussed in the first
paragraph of Note 3 above.
On or about April 23, 1999, the Company filed a complaint (the "Complaint")
against the 1999 Debtors seeking a declaration that the 1999 Debtors are
holding the Pension Plan Tax Reserve in constructive trust for the Company
and it is not part of the 1999 Debtors' bankruptcy estate. On June 16, 1999,
the Company filed a motion for summary judgment with respect to the
Complaint. A hearing on the Company's summary judgment motion is set for
December 7, 1999 in the United States Bankruptcy Court for the District of
Delaware (the "Bankruptcy Court").
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EBS PENSION, L.L.C.
Notes to Financial Statements
September 30, 1999 and December 31, 1998
- --------------------------------------------------------------------------------
6. Subsequent events (unaudited)
Cash on deposit as of October 31, 1999
As of October 31, 1999, the Company had approximately $1.9 million in cash
and cash equivalents. This sum represents the Pension Plan Funding amount as
of this date and accrued interest from September 1, 1999 through September
30, 1999, less disbursements through October 31, 1999. This cash, plus any
portion of Pension Plan Tax Reserve that may ultimately be received by the
Company, will be used for general operations and for the anticipated cost of
legal indemnification of the officers of Edison as contemplated by the
Members' Agreement and collecting the Pension Plan Tax Reserve from Edison.
Any amounts not used for these purposes will be made available for future
distributions to Class A Membership Unit holders.
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Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The following is a discussion and analysis of the financial condition and
results of operations of the Company as of and for the periods from January 1,
1998 through December 31, 1998, January 1, 1998 through September 30, 1998
(unaudited) and January 1, 1999 through September 30, 1999 (unaudited), and of
certain factors that may affect the Company's prospective financial condition
and results of operations. The following should be read in conjunction with the
Company's Financial Statements and Notes thereto included elsewhere herein and
included in the Company's Annual Report and Form 10-K for the year ended
December 31, 1998. This discussion contains certain forward-looking statements
that involve risks and uncertainties. The Company's actual results could differ
materially from the results expressed in, or implied by, such statements.
Results of Operations/Overview
The Company, which was formed pursuant to the Plan and the Members
Agreement, is a limited purpose entity that was organized for the exclusive
purposes of (a) receiving and administering the Net Pension Plan Proceeds, and
(b) distributing the Net Pension Plan Proceeds to holders of the Company's Class
A Membership Units pursuant to the terms of the Members Agreement.
On January 23, 1998, the Company received from Edison the Net Pension Plan
Proceeds, which totaled approximately $43.9 million. The Company recognizes
income from interest earned on its funds. The Company invests such funds in a
money market fund investing solely in direct obligations of the United States
Government. The Members Agreement permits all funds received by the Company to
be temporarily invested in United States treasury bills and notes with
maturities of 12 months or less, institutional money market funds and demand or
time deposits and certificates of deposit with U.S. federal or state commercial
banks having primary capital of not less than $500 million. During the period
ended December 31, 1997, the Company did not recognize any interest income
because it did not receive the Pension Plan Proceeds until January 1998. During
the year ended December 31, 1998 and the nine month periods ended September 30,
1998 and September 30, 1999, respectively, the Company recognized $321,488,
$278,275 and $58,414 of interest income, respectively. The amount of interest
income recognized by the Company in future periods will be dependent on, among
other things, (1) fluctuations in interest rates, (2) the amounts and timing of
any amounts received in the future from the Pension Plan Tax Reserve, (3) the
amount and timing of distributions, if any, to holders of Class A Membership
Units, and (4) the amount and timing of the Company's expenses.
The Company may in the future receive funds currently held in the Pension
Plan Tax Reserve, aggregating approximately $5.7 million. As noted in Note 5 to
the Financial Statements, on June 16, 1999, the Company filed a motion for
summary judgment determining that the 1999 Debtors are holding the Pension Plan
Tax Reserve in constructive trust for the Company and that it is not property of
the 1999 Debtors' bankruptcy estate, and ordering the 1999 Debtors to turn the
money held in the Pension Plan Tax Reserve over to the Company. A hearing before
the Bankruptcy Court on this matter is scheduled for December 7,1999. There can
be no assurance, with regard to the outcome of the Company's motion. The Pension
Plan Tax Reserve is discussed more fully below.
The Company's general and administrative expenses consist primarily of fees
payable to the Transfer Agent, the Manager and the Company's lawyers,
accountants and auditors. The Company had expenses of $ 256,064, $149,483 and
$202,893 for the year ended December 31, 1998, and the nine month periods ended
September 30, 1998 and September 30, 1999, respectively. These expenses are
expected to fluctuate in future periods primarily based on the volume of any
future disbursements on account of Class A Membership Units and actions taken by
the Company to collect the Pension Plan Tax Reserve from Edison.
The Company and EBS Litigation, L.L.C. (another limited liability company
formed pursuant to the Plan) have agreed to indemnify the Debtors and their
present or former officers, directors and employees from and against any losses,
claims, damages or liabilities by reason of any actions arising from or relating
to the Company and any actions taken or proceedings commenced by EBS Litigation,
L.L.C. other than with respect to any Unresolved Avoidance Claims (as defined in
the Plan) that EBS Litigation, L.L.C. may have against such persons other than
in their capacities as officers, directors or employees of the Debtors.
Pursuant to the Plan, the Company established the Indemnification Reserve ($1.5
million) from the Net Pension Plan Proceeds for the benefit of these indemnified
persons in order to pay any costs and expenses incurred in defending any L.L.C.
Related Claims (as defined in the Plan). Payment of such costs
9
and expenses must first be sought from any applicable officers' and directors'
insurance policy and then from the Indemnification Reserve. The Company's
indemnification liability is limited to the amount of the Indemnification
Reserve, i.e. an aggregate of $1.5 million. Although to date there has not been
any indemnification claim, there can be no assurance such a claim will not be
made in the future. All liabilities of the Company, including the foregoing
indemnification obligations, will be satisfied from the Net Pension Plan
Proceeds.
At December 31, 1998 and September 30, 1999, the Company had cash and cash
equivalents of approximately $1.8 million and $1.9 million, respectively. At
September 30, 1998 the Company had cash and cash equivalents of approximately
$4.2 million as not all of the distributions had been made. When determining the
amount and timing of distributions, the Manager considered, among other things,
(1) the terms of the Members Agreement governing distributions, and (2) the
anticipated amount of necessary reserves and future administrative expenses. The
amount and timing of any future distributions of Pension Plan Proceeds will be
determined by the Manager in accordance with the terms of the Members Agreement.
There can be no assurance as to the amount (if any) of any further distributions
that will be made.
As of December 31, 1998, September 30, 1998 and September 30, 1999, the
balance in the Company's operating cash account was $286,927, $334,726 and
$359,980, respectively. Following satisfaction of administrative expenses, any
funds remaining on deposit would be available for distribution to holders of
Class A Membership Units. In addition, any remaining balance of the $1.5 million
Indemnification Reserve, if any, ultimately would be available for such
distribution.
An additional potential component of a future distribution is the Pension
Plan Tax Reserve. In connection with the termination of the Pension Plan,
Edison sought Tax Ruling from the IRS to the effect that any income realized by
Edison as a result of the Pension Plan termination will be available to offset
certain deductions realized by the Debtors in the same taxable year. On
September 28, 1998, the IRS issued the Tax Ruling. The Company was advised that
as a result of the Tax Ruling, there were no additional taxes to be paid by
Edison in connection with termination of the Pension Plan. Concurrent with the
issuance of the IRS Tax Ruling, the Pension Benefit Guaranty Corporation (the
"PBGC") was conducting an audit of Edison regarding the termination of the
Pension Plan. Edison declined to release the $5.7 million pending resolution of
the PBGC audit.
On March 9, 1999, the 1999 Debtors filed a voluntary petition for relief
under the provisions of chapter 11 of the Bankruptcy Code in the Bankruptcy
Court. In its petition, the 1999 Debtors listed the Company among its largest
unsecured creditors with a claim totaling approximately $5.7 million. The claim
stems from the 1999 Debtors' retention of the Pension Plan Tax Reserve.
A meeting of the 1999 Debtors' largest creditors convened on Friday, March
19, 1999 at the office of the United States Trustee for the District of Delaware
(the "United States Trustee"). At this meeting, the United States Trustee
appointed representatives of creditors to the Official Committee of Unsecured
Creditors (the "1999 Committee"). Although the Company was not appointed to the
1999 Committee, as one of the largest creditors, the Company will continue to
actively monitor the progress of the 1999 Debtors' bankruptcy cases. On or about
April 23, 1999, the Company filed the Complaint with the Bankruptcy Court
seeking a declaration that the 1999 Debtors are holding the Pension Plan Tax
Reserve in constructive trust for the Company, and that the Pension Plan Tax
Reserve is not property of the the Debtor's bankruptcy estate. As of June 11,
1999, the PBGC has concluded the audit without imposing a monetary obligation on
the 1999 Debtors. However, as of the date hereof, the 1999 Debtors had not
released the Pension Plan Tax Reserve to the Company. On June 16, 1999, the
Company filed a motion for summary judgment with respect to the Complaint, and a
hearing in the Bankruptcy Court on the summary judgment motion is set for
December 7, 1999.
The Company is classified as a partnership for federal income tax purposes
and, therefore, does not pay any taxes. Instead, holders of Class A Membership
Units pay taxes on their proportionate share of the Company's income.
Year-to-Date Results
Nine Months ended September 30, 1999 Compared to the Nine Months ended September
30, 1998.
Total income for the nine months ended September 30, 1999 was $58,414
compared to $278,275 for the nine months ended September 30, 1998. This $219,861
decrease is primarily due to the decrease in interest income as a result of the
significantly lower cash balances on hand during the respective periods.
10
Total expenses decreased $53,410 due primarily to a decrease in legal and
accounting fees due to the lack of activity during the period while the motions
discussed above are before the court and a decrease in manager fees as a result
of amortizing the yearly manager's fee of $50,000 ratably over the nine month
period.
Year 2000 Issues
In the light of the limited nature of the Company's activities, it does not
believe its operations or financial condition are affected by Year 2000 issues,
except insofar as it would be affected by a general interruption of telephone
and utility services or if its Transfer Agent were unable to process
distributions or transfers of Membership Units. The Company will seek written
assurances from its Transfer Agent as to Year 2000 compliance. If the Company
does not receive adequate assurances or if, notwithstanding those assurances,
the Transfer Agent were noncompliant, it would replace the Transfer Agent with
one that has systems that are Year 2000 compliant.
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PART II. OTHER INFORMATION
Item 1. Legal Proceedings.
Other than the Tax Ruling described in Part I, Item 2 of this Quarterly
Report, and other than in connection with the Company's $5.7 million claim in
Edison's Bankruptcy discussed in Part I, Item 2 hereof, the Company is not
involved in any legal proceedings.
Item 6. Exhibits and Reports on Form 8-K.
(A) Exhibits Description
-------- -----------
2.1* Amended Joint Plan of Reorganization of Edison
Brothers Stores, Inc.
3.1* EBS Pension, L.L.C. Certificate of Formation
3.2* EBS Pension, L.L.C. Membership Agreement
27.1 Financial Data Schedule
* Incorporated by reference to the same numbered exhibit filed with the
Registrant's Registration Statement on Form 10 originally filed with the SEC
on July 29, 1998 (SEC File No. 000-24713)
(B) Reports on Form 8-K
None.
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Signatures
----------
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
EBS PENSION, L.L.C.
By: NORWEST BANK MINNESOTA, N.A.,
in its capacity as Manager of EBS
Pension, L.L.C.
By: /s/ Lon P. LeClair
-----------------------------
Date: November 15, 1999 Lon P. LeClair
Vice President
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