<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark one)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 (FEE REQUIRED) FOR THE FISCAL YEAR ENDED DECEMBER
31, 1996
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 (NO FEE REQUIRED)
Commission File Number: 0-20677
FIRSTCITY LIQUIDATING TRUST
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
Texas 06-6414468
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1021 Main, Suite 250, Houston, Texas 77002
(Address of principal executive offices) (Zip Code)
</TABLE>
Registrant's telephone number, including area code: (713) 651-7841
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act:
Title of Each Class
Class B Beneficial Interests
Class C Beneficial Interests
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
----- -----
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to
this Form 10-K. [ ]
As of February 28, 1997, 2,460,911 units of Class B Beneficial Interests and
738,273 units of Class C Beneficial Interests were outstanding.
Documents incorporated by reference: None
<PAGE> 2
Part I
Item 1. Business.
On July 3, 1995 (the "Effective Date"), the FirstCity
Liquidating Trust (the "Trust") and certain other entities were established
pursuant to and upon consummation of the Joint Plan of Reorganization, dated
December 23, 1994, by First City Bancorporation of Texas, Inc., a Delaware
corporation (the "Debtor"), Official Committee of Equity Security Holders (the
"Equity Committee"), and J-Hawk Corporation ("J-Hawk"), with the Participation
of Cargill Financial Services Corporation, Under Chapter 11 of Title 11 of the
U.S. Code (the "Bankruptcy Code"), Case No. 392- 39474-HCA-11 (the "Plan").
The Plan was confirmed by order of the U.S. Bankruptcy Court for the Northern
District of Texas, Dallas Division (the "Bankruptcy Court") entered on May 31,
1995.
The Debtor was formed as a multi-bank holding company in 1988
for the purpose of reorganizing First City Bancorporation of Texas, Inc., a
Texas corporation. Beginning in the summer of 1990, the financial condition of
the Debtor began to deteriorate and worsened progressively throughout 1990 and
1991. On October 30, 1992, regulatory agencies closed the Debtor's banks. On
October 31, 1992, certain of the Debtor's unsecured creditors filed an
involuntary Chapter 11 bankruptcy petition against the Debtor in the Bankruptcy
Court. On November 23, 1992, the Debtor consented to the entry of an order for
relief against it under Chapter 11 of the Bankruptcy Code. Until July 3, 1995,
the Debtor operated its remaining businesses and managed its property as
debtor-in-possession.
The Plan was confirmed by the Bankruptcy Court by an order
entered on May 31, 1995, and became effective on July 3, 1995. Pursuant to the
Plan and an Agreement and Plan of Merger between the Debtor and J-Hawk, on July
3, 1995, J-Hawk was merged (the "Merger") with and into the Debtor, with the
Debtor as the surviving entity. Pursuant to the Merger, (i) the former holders
of common stock of J-Hawk received, in the aggregate, approximately 49.9% of
the outstanding common stock of the surviving entity, in exchange for their
shares of J-Hawk common stock, (ii) approximately 50.1% of the outstanding
common stock of the surviving entity was distributed among former security
holders of the Debtor pursuant to the Plan and (iii) the name of the
corporation was changed to FirstCity Financial Corporation ("FirstCity"). As a
result of the implementation of the Plan and the consummation of the Merger,
FirstCity also issued (i) 9% senior subordinated notes (the "senior
subordinated notes") in the aggregate amount of $106.7 million (which were
redeemed in 1996), (ii) warrants to purchase 500,000 shares of its common stock
at an exercise price of $25 per share and (iii) special preferred stock (the
"special preferred stock") in the aggregate amount of $51.7 million to certain
former security holders of the Debtor.
The Trust has not and, pursuant to the Liquidating Trust
Agreement, dated as of July 3, 1995, by and between First City Bancorporation
of Texas, Inc. and Fleet National Bank, successor to Shawmut Bank Connecticut,
National Association, as Trustee (the "Trust Agreement"), may not engage in the
conduct of a trade or business apart from the liquidation of
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Trust assets and the winding up of the affairs of the Debtor and its
subsidiaries. Pursuant to Article VIII of the Trust Agreement, the Trust shall
terminate upon the date which is three (3) years and six (6) months after the
Effective Date; provided, however, that at least six (6) months prior to such
termination, the Portfolio Committee (as defined herein) may, with the approval
of the Bankruptcy Court, extend the term of the Trust if necessary to the
liquidating purpose thereof. Multiple extensions, if approved by the
Bankruptcy Court, are permissible, although the aggregate of all such
extensions shall not exceed five (5) years so that, in any event, the Trust
shall terminate no later than eight (8) years and six (6) months after the
Effective Date.
Pursuant to the Plan, substantially all of the legal and
beneficial interest in the assets of the Debtor, other than $20 million in cash
which was contributed by the Debtor to FirstCity, were transferred to the Trust
or to subsidiaries of the Trust. Such assets have been and will continue to be
liquidated over the anticipated three- year life of the Trust pursuant to the
terms of the Plan, the Trust Agreement and, until its termination pursuant to
the Termination Agreement (as defined below), a servicing agreement between the
Trust and FirstCity (the "Investment Management Agreement"). The non-cash
assets of the Trust consist principally of performing and non-performing loans,
income producing real estate and interests in real estate, and miscellaneous
other assets and receivables (principally from the Federal Deposit Insurance
Corporation (the "FDIC")) transferred to the Trust upon the consummation of the
Plan.
In connection with the sale of the Debtor's banks by the FDIC
to certain other banks (the "Loss-Sharing Banks"), the FDIC entered into
certain agreements (the "Loss- Sharing Agreements") to guarantee certain
recoveries on loans acquired by the Loss-Sharing Banks. On July 12, 1995, in
order to reduce the uncertain effect of the Loss-Sharing Agreements on future
distributions to the Trust by the FDIC, subsidiaries of the Trust purchased
assets for approximately $206 million from the Loss-Sharing Banks (the
"Loss-Sharing Settlement"). With the purchase of these assets, the
Loss-Sharing Banks released the FDIC from its future obligations under the
Loss-Sharing Agreements. The Loss Sharing Settlement was significant to the
Trust because it allowed the FDIC to eliminate the loss-sharing reserve that it
had maintained to cover the FDIC's obligations under the loss-sharing
guarantees, thereby eliminating the uncertainty of future reductions from the
reserve and increasing the initial distribution to be made by the FDIC to the
Trust.
In 1996, the FDIC closed the receiverships of the Debtor's
banks (the "Receiverships") and distributed the surplus cash ($17.6 million on
December 23, 1996) of the Receiverships to the Trust. In accordance with that
certain Conveyance and Indemnification Agreement, dated December 23, 1996 (the
"Conveyance and Indemnification Agreement"), the Trust will be required, among
other things, to provide indemnity until March 31, 1999 to the FDIC against
any known or unknown liabilities, obligations or actual expenses which may
arise now or in the future associated with the Receiverships, in an aggregate
amount up to $12 million.
On March 24, 1997, the Trust and FirstCity entered into a
termination agreement, effective as of December 31, 1996 (the "Termination
Agreement"), to terminate the Investment Management Agreement, which terminated
substantially all of the rights, obligations and liabilities of FirstCity, the
Trust and the Trust-owned affiliates under the Investment Management
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Agreement. The Investment Management Agreement was terminated as the Trust
decided it no longer required FirstCity to perform the servicing function
provided for by this agreement and believed the Trust would benefit financially
from the termination. In consideration of the termination of the Investment
Management Agreement, the Trust paid FirstCity $6.8 million, plus interest at a
rate of 10 percent per annum from January 1, 1997 until paid.
Item 2. Properties.
The Trust does not have any material physical properties, except for
such properties that are held for sale.
Item 3. Legal Proceedings.
The Trust is involved in various legal proceedings in the ordinary
course of business. In the opinion of management of the Trust, the resolution
of such matters should not have a material adverse impact on the financial
position, results of operations or liquidity of the Trust.
Item 4. Submission of Matters to a Vote of Security-Holders.
As the Trust has no outstanding voting securities, no matters were
submitted to a vote of security holders during the fourth quarter ended
December 31, 1996.
Part II
Item 5. Market For Registrant's Common Equity and Related Stockholder Matters.
The Class A Certificate is held by FirstCity. Through December 31,
1996, the Trust had distributed $125 million to FirstCity as the sole Class A
Certificate holder.
3
<PAGE> 5
The Class B Beneficial Interests (traded under the symbol
"FCFCL") and Class C Beneficial Interests (traded under the symbol "FCFCZ")
have been traded over the counter since July 3, 1995. The number of Class B
Certificate holders and Class C Certificate holders of record as of December
31, 1996, was 75 and 678, respectively. High and low bid prices, as compiled
by Bloomberg Financial Markets Services, an online service, are displayed in
the following tables:
<TABLE>
<CAPTION>
Class B Beneficial Interests
------------------------------------------------------------
1996 1995
---- ------
Market Price Market Price
---------------------- ----------------------
Quarter Ended High Low High Low
- ------------- ------- -------- ------ -------
<S> <C> <C> <C> <C> <C>
March 31 . . . . . . . . . . . $ 17.75 $ 15.13 - -
June 30 . . . . . . . . . . . . 22.38 17.63 - -
September 30 (1) . . . . . . . 23.75 22.38 $14.00 $ 1.00
December 31 . . . . . . . . . . 25.50 23.50 15.75 12.00
</TABLE>
<TABLE>
<CAPTION>
Class C Beneficial Interests
------------------------------------------------------------
1996 1995
---- ------
Market Price Market Price
---------------------- ----------------------
Quarter Ended High Low High Low
- ------------- ------- -------- ------ -------
<S> <C> <C> <C> <C> <C>
March 31 . . . . . . . . . . . - - - -
June 30 . . . . . . . . . . . . $ .01 $ .01 - -
September 30 (1) . . . . . . . - - $ .01 $ .001
December 31 . . . . . . . . . - - .01 .01
</TABLE>
_____________________
(1) Beginning July 3, 1995
No distributions were made to Class B or Class C Certificate holders in 1996
and 1995.
The Trust is required to apply all proceeds from liquidation and disposition of
the Trust's assets first to payment of normal operating expenses, including a
servicing fee to FirstCity, and unpaid administrative claims of the Debtor.
Second, Trust proceeds are remitted to the senior lenders for payment of
principal and interest. Third, Trust proceeds are distributed to FirstCity,
the sole Class A Certificate holder, for payment of (i) principal and interest
on senior subordinated notes, (ii) cumulative quarterly cash dividends ($1.9
million at December 31, 1996) at the annual rate of $3.15 per share (on
2,460,911 shares) and (iii) redemption of nominal stated value of $51.7 million
of FirstCity special preferred stock on September 30, 1998. The Trust
distributed $105.7 million to FirstCity in 1996 for the early redemption of
senior subordinated notes and $1 million senior subordinated notes held by the
Trust were cancelled. In addition, the Trust distributed $9.6 million to
FirstCity in 1996 and $1.9 million on January 15, 1997 for accrued dividends on
special preferred stock. Subsequent to December 31, 1996, the Trust, in
cooperation with FirstCity, began making distributions to FirstCity for the
purchase by FirstCity of its special preferred stock. As of March 24, 1997,
the Trust has distributed approximately $8.3 million to FirstCity for the
repurchase by FirstCity of approximately 354,000 shares of special preferred
stock.
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<PAGE> 6
The fourth order of distribution of Trust proceeds is payments pursuant to
employment agreements with certain former employees of the Debtor. Fifth,
Class B Certificate holders (and, pursuant to bonus agreements, certain former
employees of the Debtor) are entitled to distributions up to the Pour-Over
Level (as hereinafter defined). The bonus pool and executive long-term
incentive plan provides for the payment of $750,000 in bonuses to certain
former employees of the Debtor after the Trust achieves approximately $275
million of net collections, the payment of another $750,000 after
approximately $30 million of additional net collections, and the payment of
bonuses in the amount of 5% of all net collections in excess of $305 million.
The Pour-Over Level (approximately $130 million at December 31, 1996) is the
liquidation preference on July 3, 1995 of the Debtor's Series B and Series E
preferred stock, less the nominal stated value of FirstCity special preferred
stock and the book value of FirstCity common stock issued to the Series B and
Series E holders, plus interest at an annual rate of 6.5% from July 3, 1995.
Lastly, Class C Certificate holders receive distributions, if any, after all
required payments to Class B Certificate holders. No distributions to Class C
Certificate holders are anticipated.
Item 6. Selected Financial Data.
<TABLE>
<CAPTION>
Year Ended Inception to
December 31, 1996 December 31, 1995
----------------- -----------------
(Dollars in thousands)
<S> <C> <C>
Income . . . . . . . . . . . . . . . . . . . . $ 53,014 $33,923
Expenses . . . . . . . . . . . . . . . . . . . . 13,249 10,293
Net income . . . . . . . . . . . . . . . . . . . 39,765 23,630
Distributions on Class "A" Certificate . . . . . 120,229 4,721
At year end:
Total assets . . . . . . . . . . . . . . 125,229 206,464
Class "A" Certificate . . . . . . . . . 53,617 162,245
Class "B" Certificate . . . . . . . . . 67,700 39,536
</TABLE>
Item 7. Management's Discussion and Analysis of Financial Condition and
Results of Operations.
The operations of the Trust since inception are summarized below
(dollars in thousands):
<TABLE>
<CAPTION>
Year Ended Inception to
December 31, December 31,
1996 1995
---------------- -------------
<S> <C> <C>
Changes in fair value of trust assets . . . . . . . . . . . . . . . . $ 52,219 $ 33,548
Interest income on short-term investments . . . . . . . . . . . . . . 795 375
Interest expense . . . . . . . . . . . . . . . . . . . . . . . . . . (325) (1,741)
Administrative expense . . . . . . . . . . . . . . . . . . . . . . . (12,924) (8,552)
---------------- -------------
Net income . . . . . . . . . . . . . . . . . . . . . . . . . . $ 39,765 $ 23,630
================ ============
</TABLE>
5
<PAGE> 7
The estimated fair value of the Trust's assets increased $52.2
million in 1996 (a full year of operation), as compared to $33.5 million in
1995 (the period July 3, 1995 through December 31, 1995), and was attributable
to several factors, including settlement of a loan that resulted in the receipt
of cash and real property valued approximately $8 million more than the value
assigned to the loan, an $8 million settlement with insurance carriers of the
Debtor's directors and officers, loan recoveries that exceeded anticipated
recoveries by approximately $1.4 million and an increase in the estimated
residual value of the Trust's receivable from the FDIC of $4.3 million. Other
factors which contributed to the enhancement of the net asset value of the
Trust's assets include (i) the appreciation in value of certain assets
attributable to a favorable interest rate environment and the effect of such
favorable interest rates on the marketability of real estate and (ii) the
increase in the estimated market value of the Trust's assets that naturally
occurs as the remaining life of the Trust (and concomitantly the discount
factor applied in calculating net asset value) decreases.
During 1995, the estimated fair value of the Trust's assets
increased by $33.5 million. Several factors contributed to the significant
increase in net asset value of the Trust's assets during the period July 3,
1995 (inception) through December 31, 1995. First in order of magnitude was
the increase in value of certain assets of the Trust after their initial
valuation, resulting from the subsequent occurrence of certain unforeseen or
contingent events that enhanced the value of such assets by resolving various
fundamental uncertainties that had a depressive effect on their initial
valuations. The valuation of two of the Trust's assets is illustrative of how
this factor operated to increase the net asset value of the Trust assets during
the relevant period. One of the Trust's assets consists of two parcels of
property and a related piece of litigation (the "REO Asset"). At the time of
the initial valuation, the real property was valued at approximately $13
million and the related litigation, still actively contested at the time, was
valued at only approximately $5 million, resulting in an aggregate value of
approximately $18 million. Subsequently, the parties to the litigation entered
into a settlement requiring payments to the Trust which effectively increased
the aggregate value of the REO Asset to approximately $32 million, an increase
of approximately $14 million over the original valuation. Another asset of the
Trust is a large note on a building, the value of which is dependent on a
certain lease (the "Lease"). As the Trust was uncertain whether the Lease
could be renewed, the value initially assigned to the building and related note
was only approximately $22 million. When the Lease was later renewed, and the
uncertainty as to the value of the building and related note clarified, the
year-end value of the note was increased to approximately $33 million, an
increase of approximately $11 million over its initial valuation. The cases of
the REO Asset and the building and related note account, in the aggregate, for
approximately $25 million, or approximately 75%, of the increase in the net
asset value of the Trust's assets in 1995. A second factor contributing to the
sharp increase in the net asset value of the Trust was the discovery after the
initial valuation of approximately $5 million in assets which were previously
unknown to be held by the Trust. The addition of these assets accounts for
another 15% of the increase in net asset value. Although it is not feasible to
quantify their respective contributions to the remaining portion of the
increase, the Trust believes that among the factors accounting for the residual
component of the increase in net asset value are: (i) the appreciation in value
of certain assets attributable to a favorable interest rate environment and the
stimulating effect this had on the marketability of real estate; (ii) increased
earnings from accelerated collections on certain assets; (iii) the increase in
the estimated market value of the
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Trust's assets that naturally occurs as the remaining life of the Trust (and
concomitantly the discount factor applied in calculating net asset value)
decreases; and (iv) the enhanced value of certain assets as the Trust and the
servicer's knowledge and understanding of the assets increased.
Because of lower average debt levels of the Trust, more funds
were available to invest short-term, resulting in interest income of $.8
million in 1996 compared with $.4 million in 1995. Interest expense in 1996
decreased to $.3 million from $1.7 million in 1995, as a result of repayment by
November 1995 of $73 million borrowed by the Trust on July 3, 1995. In 1996,
borrowings by the Trust to enable FirstCity to redeem early senior subordinated
notes were outstanding only for a short period of time.
Administrative expense totaled $12.9 million in 1996 as compared
to $8.6 million in 1995 (the 1995 period was less than six months long).
Servicing fees paid to FirstCity increased to $4.2 million in 1996 from $3.1
million in 1995. Professional fees totaled $3.6 million in 1996 as compared to
$3.4 million (including administrative claims related to the Debtor) in 1995.
Most of the remaining increase in 1996 was due to a full year of salaries and
property expenses compared to less than six months in 1995. In the first
quarter of 1997, the Investment Management Agreement was terminated and, in
consideration of this termination, the Trust paid FirstCity $6.8 million, plus
interest at a rate of 10 percent per annum from January 1, 1997 until paid.
At December 31, 1996, the net asset value attributable to the
Class A Certificate (which is held by FirstCity) was $53.6 million,
representing the $51.7 million nominal stated value of FirstCity's special
preferred stock and $1.9 million of accrued dividends on special preferred
stock. In 1996, the Trust distributed $3.9 million to FirstCity for payment of
interest on senior subordinated notes. The Trust also distributed $105.7
million in 1996 for early redemption of senior subordinated notes and cancelled
$1 million of senior subordinated notes held by the Trust. These distributions
were made possible principally by $158 million in collections on Trust assets
in 1996. In connection with the early redemption of senior subordinated notes,
the Trust borrowed and repaid $52.3 million under a loan agreement.
After the senior subordinated notes and related borrowings under
a loan agreement were repaid, the Trust distributed $9.6 million in 1996 and
$1.9 million on January 15, 1997, to FirstCity for accrued dividends on special
preferred stock. Subsequent to December 31, 1996, the Trust, in cooperation
with FirstCity, began making distributions to FirstCity for the purchase by
FirstCity of its special preferred stock. As of March 24, 1997, the Trust has
distributed approximately $8.3 million to FirstCity for the repurchase by
FirstCity of approximately 354,000 shares of special preferred stock. The
Class B Beneficial Interests were valued at $67.7 million at December 31, 1996.
Distributions to Class C Certificate holders are not anticipated.
In 1996, the FDIC closed the Receiverships of the Debtor's banks
and distributed the surplus cash of those Receiverships to the Trust. In
accordance with the Conveyance and Indemnification Agreement, the Trust will be
required, among other things, to provide indemnity until March 31, 1999 to the
FDIC against any known or unknown liabilities, obligations or actual
7
<PAGE> 9
expenses which may arise now or in the future associated with the
Receiverships, in an aggregate amount up to $12 million.
On July 3, 1995, the Debtor contributed approximately $183
million in net assets to the Trust, of which $135 million was cash and cash
equivalents. As discussed previously, in order to reduce the uncertain effect
of the Loss-Sharing Agreements on future distributions to the Trust by the
FDIC, subsidiaries of the Trust purchased assets for approximately $206 million
from the Loss-Sharing Banks on July 12, 1995. In order to fund this
transaction, the Trust used most of the cash contributed by the Debtor,
borrowed $73 million under a line of credit with two banks and was advanced
$4.7 million by FirstCity. In addition, letters of credit in the aggregate
amount of $27 million were issued in favor of the Loss-Sharing Banks. These
letters of credit were reduced to zero in 1996. Collections, net of advances,
for 1995 totaled more than $107 million. As a result, the $4.7 million advance
referenced above was repaid to FirstCity by August 1995, and the $73 million
loan was repaid by November 1995.
Non-cash trust assets at December 31, 1996 and 1995 are comprised
of the following (dollars in thousands):
<TABLE>
<CAPTION>
December 31,
-----------------------------
Estimated Gross Cash Flow by Type of Asset 1996 1995
- ------------------------------------------ ------------- -------------
<S> <C> <C>
Borrowers' obligation on outstanding balance of:
Performing loans . . . . . . . . . . . $ 68,551 $ 134,381
Nonperforming loans . . . . . . . . . 2,363 60,454
Receivable from the FDIC . . . . . . . . . 2,000 33,000
Real estate and other assets . . . . . . . 49,122 33,305
------------- ------------
Total . . . . . . . . . . . . . . . . 122,036 261,140
------------- ------------
Discount required to reflect trust assets at
estimated fair value . . . . . . (32,936) (67,936)
------------- ------------
Trust assets, net . . . . . . . . . . . . $ 89,100 $ 193,204
============= ============
</TABLE>
For each asset, estimates of income, expense and net cash flow
on a monthly basis through the expected final disposition date are prepared by
management of the Trust. The individual asset budget is developed based upon
factors which include physical inspection of the asset or the collateral
underlying the related loan, local market conditions, contractual payments or
rents, and discussions with the relevant borrower. The Trust's management
periodically reevaluates and revises its projected monthly cash flows on an
asset by asset basis. At December 31, 1996 and 1995, the projected monthly
cash flows were discounted at 11% to reflect the Trust assets at estimated fair
value.
At December 31, 1996, the Trust also holds certain claims, such
as claims against the former directors and officers of the Debtor, claims under
fidelity bonds and judgments and deficiencies arising from charged off loans to
former borrowers of the Debtor's banks. The estimated future cash flows from
which the net asset value of the Trust was derived include estimated future
collections which
8
<PAGE> 10
might be realized from such claims only when such amounts are reasonably
certain and estimable. At December 31, 1996, such claims were valued at
approximately $8 million.
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Item 8. Financial Statements and Supplementary Data.
FIRSTCITY LIQUIDATING TRUST AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF NET ASSETS IN LIQUIDATION
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
DECEMBER 31,
-------------------------------------
1996 1995
--------------- ---------------
<S> <C> <C>
Assets, at estimated fair value
-------------------------------
Cash and cash equivalents . . . . . . . . . . . . . . . . . . . . . . $ 36,129 $ 11,260
Advance to FirstCity Financial Corporation . . . . . . . . . . . . . - 2,000
Trust assets, net . . . . . . . . . . . . . . . . . . . . . . . . . 89,100 193,204
-------------- -------------
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . 125,229 206,464
-------------- -------------
Less liabilities at face or estimated amount
--------------------------------------------
Estimated administrative claims . . . . . . . . . . . . . . . . . . . - 3,486
Payables and accrued liabilities . . . . . . . . . . . . . . . . . . 3,912 1,197
-------------- -------------
Total liabilities . . . . . . . . . . . . . . . . . . . . . . 3,912 4,683
-------------- -------------
Commitments and contingencies . . . . . . . . . . . . . . . . . . . . - -
Trust net asset value attributable to:
--------------------------------------
Class "A" Certificate, held by FirstCity Financial Corporation . . . 53,617 162,245
Class "B" Certificate, 2,460,911 units outstanding . . . . . . . . . 67,700 39,536
Class "C" Certificate, 738,273 units outstanding . . . . . . . . . . - -
-------------- -------------
Total net asset value . . . . . . . . . . . . . . . . . . . . $ 121,317 $ 201,781
============== =============
</TABLE>
CONSOLIDATED STATEMENTS OF INCOME AND
CHANGES IN NET ASSET VALUE IN LIQUIDATION
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
YEAR ENDED INCEPTION TO
DECEMBER 31, DECEMBER 31,
1996 1995
--------------- -----------------
<S> <C> <C>
Changes in fair value of trust assets . . . . . . . . . . . . . . . . $ 52,219 $ 33,548
Interest income on short-term investments . . . . . . . . . . . . . . 795 375
Interest expense . . . . . . . . . . . . . . . . . . . . . . . . . . (325) (1,741)
Administrative expense . . . . . . . . . . . . . . . . . . . . . . . (12,924) (8,552)
--------------- -----------------
Net income . . . . . . . . . . . . . . . . . . . . . . . . . . 39,765 23,630
--------------- -----------------
Net asset value, beginning of period . . . . . . . . . . . . . . . . 201,781 -
Contribution of net assets by First City Bancorporation of
Texas, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . - 182,872
Principal distribution on Class "A" Certificate . . . . . . . . . . . (106,690) -
Interest distribution on Class "A" Certificate . . . . . . . . . . . (13,539) (4,721)
--------------- -----------------
Net asset value, end of period . . . . . . . . . . . . . . . . . . . $ 121,317 $ 201,781
=============== =================
</TABLE>
See accompanying notes to consolidated financial statements.
10
<PAGE> 12
FIRSTCITY LIQUIDATING TRUST AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
YEAR ENDED INCEPTION TO
DECEMBER 31, DECEMBER 31,
1996 1995
----------------- ----------------
<S> <C> <C>
Cash flows from operating activities:
Net income . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 39,765 $ 23,630
Adjustments to reconcile net income to net cash provided
by (used in) operating activities:
Changes in fair value of trust assets . . . . . . . . . . . . (52,219) (33,548)
Collections on trust assets, net of advances . . . . . . . . . 158,323 107,371
Purchase of Loss-Sharing assets . . . . . . . . . . . . . . . - (205,513)
Decrease in estimated administrative claims . . . . . . . . . (3,486) (10,516)
Increase in payables and accrued liabilities . . . . . . . . 715 1,197
----------------- ----------------
Net cash provided by (used in) operating activities . . . . 143,098 (117,379)
----------------- ----------------
Cash flows from investing activities:
Advance to FirstCity Financial Corporation . . . . . . . . . . . - (2,000)
Repayment of advance to FirstCity Financial Corporation . . . . . 2,000 -
Purchase of FirstCity senior subordinated notes . . . . . . . . . (4,000) -
Redemption of FirstCity senior subordinated notes . . . . . . . . 3,000 -
----------------- ----------------
Net cash provided by (used in) investing activities . . . . 1,000 (2,000)
----------------- ----------------
Cash flows from financing activities:
Borrowings under notes payable to banks . . . . . . . . . . . . . 52,300 73,000
Payments of notes payable to banks . . . . . . . . . . . . . . . (52,300) (73,000)
Advance from FirstCity Financial Corporation . . . . . . . . . . - 4,728
Repayment of advance from FirstCity Financial Corporation . . . . - (4,728)
Capital contribution of First City Bancorporation
of Texas, Inc. . . . . . . . . . . . . . . . . . . . . . . . . - 135,360
Interest and principal distribution on Class "A" Certificate . . (119,229) (4,721)
----------------- ----------------
Net cash provided by (used in) financing activities . . . . (119,229) 130,639
----------------- ----------------
Net increase in cash . . . . . . . . . . . . . . . . . . . . . . $ 24,869 $ 11,260
Cash, beginning of period . . . . . . . . . . . . . . . . . . . . 11,260 -
----------------- ----------------
Cash, end of period . . . . . . . . . . . . . . . . . . . . . . . $ 36,129 $ 11,260
================= ================
Supplemental disclosure of cash flow information:
Cash paid during the period for:
Interest . . . . . . . . . . . . . . . . . . . . . . . . . $ 325 $ 1,741
================= ================
Non-cash financing activities:
Non-cash net assets contributed by First City
Bancorporation of Texas, Inc. . . . . . . . . . . . . . $ - $ 47,512
Cancellation of FirstCity senior subordinated notes . . . . 1,000 -
Accrual of unclaimed assets . . . . . . . . . . . . . . . . 2,000 -
</TABLE>
See accompanying notes to consolidated financial statements.
11
<PAGE> 13
FIRSTCITY LIQUIDATING TRUST AND SUBSIDIARIES
Notes to Consolidated Financial Statements
December 31, 1996 and 1995
(A) Summary of Significant Accounting Policies
(1) Description of Business
The Joint Plan of Reorganization by First City Bancorporation of
Texas, Inc. (the "Debtor"), Official Committee of Equity Security
Holders, and J-Hawk Corporation ("J-Hawk"), with the Participation of
Cargill Financial Services Corporation, under Chapter 11 of the United
States Bankruptcy Code, Case No. 392-39474-HCA-11 (the "Plan of
Reorganization"), was confirmed by the Bankruptcy Court for the
Northern District of Texas, Dallas Division, by an order entered on
May 31, 1995, and became effective on July 3, 1995. Pursuant to the
Plan of Reorganization, and an Agreement and Plan of Merger between
the Debtor and J-Hawk, on July 3, 1995, J-Hawk was merged (the
"Merger") with and into First City Bancorporation of Texas, Inc., and
the name of the corporation was changed to FirstCity Financial
Corporation ("FirstCity").
Pursuant to the Plan, substantially all of the legal and beneficial
interests in the assets of the Debtor, other than $20 million in cash
contributed to FirstCity, were transferred to FirstCity Liquidating
Trust (the "Trust"), or to subsidiaries of the Trust. Such assets
will be liquidated over the life of the Trust pursuant to the terms
thereof. FirstCity, as the sole holder of the Class "A" Certificate
under the Trust, will receive from the Trust amounts sufficient to pay
certain expenses and FirstCity's obligations under its 9% senior
subordinated notes and its special preferred stock. Any amounts in
excess of such sums shall be paid to certain of the former security
holders of the Debtor pursuant to the terms of the Class B and the
Class C certificates of beneficial interests in the Trust. The Trust
is administered by a four-person portfolio committee (the "Portfolio
Committee"). The liquidation of the Trust's assets is managed by
FirstCity pursuant to an Investment Management Agreement between the
Trust and FirstCity. The net assets of the Debtor transferred to the
Trust on July 3, 1995, consisted of the following (dollars in
thousands):
<TABLE>
<S> <C>
Cash and cash equivalents . . . . . . . . . . . .$ 135,360
Trust assets . . . . . . . . . . . . . . . . . . 61,514
Estimated claims and accrued liabilities . . . . . (14,002)
----------
$ 182,872
==========
</TABLE>
In connection with the sale of the Debtor's banks by the FDIC to
third-party acquirers (the "Loss-Sharing Banks"), the FDIC guaranteed
certain recoveries on loans acquired by the Loss-Sharing Banks.
(These agreements are referred to as "Loss-Sharing Agreements".) On
July 12, 1995, in order to reduce the uncertain effect of the
Loss-Sharing Agreements on future distributions to the Trust by the
FDIC, subsidiaries of the Trust purchased assets (the "Loss-Sharing
Settlement") for approximately $206 million from the Loss-Sharing
12
<PAGE> 14
FIRSTCITY LIQUIDATING TRUST AND SUBSIDIARIES
Notes to Consolidated Financial Statements
(continued)
Banks. With the purchase of these assets, the Loss-Sharing Banks
released the FDIC from its future obligations under the Loss-Sharing
Agreements.
(2) Principles of Consolidation
The accompanying consolidated financial statements include the
accounts of FirstCity Liquidating Trust and its subsidiaries
(collectively referred to as the "Trust"). All significant
intercompany transactions and balances have been eliminated in
consolidation.
(3) Cash Equivalents
For purposes of the consolidated statements of cash flows, the Trust
considers all highly liquid debt instruments with original maturities
of three months or less to be cash equivalents. The Trust, at
December 31, 1996 and 1995, and periodically throughout the year, has
maintained balances in various operating and money market accounts in
excess of federally insured limits. At December 31, 1996 and 1995,
substantially all cash balances were in excess of federally insured
limits. In accordance with the Liquidating Trust Agreement, all cash
balances are maintained at institutions with at least $100 million of
capital stock and surplus and whose short-term debt obligations are
rated by at least two nationally recognized rating agencies in one of
the two highest categories.
(4) Trust Assets
The net assets of the Trust are carried at estimated fair values which
are the results of discounting, at appropriate discount rates, the
currently estimated cash flows projected to be realized from the
collection, liquidation and disposition of the non-cash assets held by
the Trust. Such assets consist principally of performing and
non-performing loans, income producing real estate and interests in
real estate, and miscellaneous other assets and receivables
transferred to the Trust upon the consummation of the Plan of
Reorganization. The estimates of the future cash flows from which the
net asset values of the Trust were derived are made under the
direction of the management of the Trust and the Portfolio Committee
based upon information available and are believed to be reliable.
There can be no assurance, however, that the estimates resulting from
such reviews or the net asset values derived from such estimates will
ultimately be realized due to the highly judgmental assumptions which
were made in developing estimates of the amount and timing of future
cash flows to be realized upon the liquidation of the types of assets
such as those held by the Trust.
In addition to the assets described above, the Trust also holds
certain claims, such as claims against former directors and officers
of the Debtor, claims under fidelity bonds and
13
<PAGE> 15
FIRSTCITY LIQUIDATING TRUST AND SUBSIDIARIES
Notes to Consolidated Financial Statements
(continued)
judgments and deficiencies arising from charged off loans to former
borrowers of the Debtor's banks. The estimated future cash flows from
which the net asset values of the Trust were derived include estimated
future collections which might be realized from such claims only when
such amounts are reasonably certain and estimable. At December 31,
1996, such claims were valued at approximately $8 million (no value
was assigned at December 31, 1995).
Trust assets are revalued at least quarterly and adjustments to
estimated fair values are included in operating results in the period
in which they become known. Loans are considered performing if debt
service payments are made in accordance with the original or
restructured terms of the notes. Interest on loans is recognized as
part of the proceeds from disposition of trust assets.
Foreclosed assets acquired in settlement of notes are recorded at
estimated fair value. Costs relating to the development and
improvement of property and holding costs are considered in the
development of estimated fair values.
The Trust has adopted Statement of Financial Accounting Standards
(SFAS) No. 114, "Accounting by Creditors for Impairment of a Loan", as
amended by SFAS No. 118, which requires creditors to evaluate the
collectibility of both contractual interest and principal of loans
when assessing the need for a loss accrual. Impairment is measured
based on the present value of the expected future cash flows
discounted at the loan's effective interest rate, or the fair value of
the collateral, less estimated selling costs, if the loan is
collateral dependent and foreclosure is probable. The adoption of
SFAS No. 114 had no impact on the Trust.
(5) Income Taxes
Under current federal and state laws, the Trust shall be treated as a
grantor trust owned by the beneficiaries holding beneficial interest
therein. For tax purposes, any item of income or loss is allocated
among the certificate holders. Therefore, no provision has been made
for income taxes in the accompanying consolidated financial
statements. At December 31, 1996 and 1995, the difference in basis
for tax and financial reporting purposes of the net assets of the
Trust totaled approximately $21 million and $42 million, respectively.
(6) Use of Estimates
Management of the Trust has made certain estimates and assumptions
relating to the reporting of assets and liabilities and the disclosure
of contingent assets and liabilities to prepare these consolidated
financial statements in conformity with generally accepted accounting
principles. Actual results could differ from those estimates.
14
<PAGE> 16
FIRSTCITY LIQUIDATING TRUST AND SUBSIDIARIES
Notes to Consolidated Financial Statements
(continued)
(B) Trust Assets
Trust assets are comprised of the following (dollars in thousands):
<TABLE>
<CAPTION>
December 31,
-------------------------------
Estimated Gross Cash Flow by Type of Asset 1996 1995
- ------------------------------------------ ---------------- ------------
<S> <C>
Borrowers' obligation on outstanding balance of:
Performing loans . . . . . . . . . . . $ 68,551 $ 134,381
Nonperforming loans . . . . . . . . . 2,363 60,454
Receivable from the FDIC . . . . . . . . . 2,000 33,000
Real estate and other assets . . . . . . . 49,122 33,305
-------------- ------------
Total . . . . . . . . . . . . . . . . 122,036 261,140
-------------- ------------
Discount required to reflect trust assets at
estimated fair value . . . . . . (32,936) (67,936)
-------------- ------------
Trust assets, net . . . . . . . . . . . . . $ 89,100 $ 193,204
============== ============
</TABLE>
For each asset, estimates of income, expense and net cash flow on a
monthly basis through the expected final disposition date are
prepared. The individual asset budget is developed based upon factors
which include physical inspection of the asset or the collateral
underlying the related loan, local market conditions, contractual
payments or rents, and discussions with the relevant borrower. The
Trust's management and the Portfolio Committee periodically reevaluate
and revise projected monthly cash flows on an asset by asset basis.
At December 31, 1996 and 1995, the projected monthly cash flows were
discounted at 11% to reflect the Trust assets at estimated fair value.
At December 31, 1996 and 1995, Trust assets were highly concentrated
in Texas.
(C) Senior Notes Payable to Banks
The Trust had a revolving line of credit with two banks for borrowings
of up to $100 million. In connection with the Loss-Sharing
Settlement, $73 million was borrowed by the Trust and $27 million in
letters of credit were issued in favor of the Loss-Sharing Banks.
Payments reduced the outstanding balance of the line of credit to zero
in November 1995. In the first quarter of 1996, an amendment to the
line of credit reduced the letters of credit to zero and established a
term loan (which expired December 31, 1996) for borrowings up to $61
million. In connection with the early redemption of senior
subordinated notes (see Note D), $52.3 million was borrowed and repaid
in 1996. Substantially all trust assets were pledged to secure these
borrowings.
15
<PAGE> 17
FIRSTCITY LIQUIDATING TRUST AND SUBSIDIARIES
Notes to Consolidated Financial Statements
(continued)
(D) Distribution Priorities
Pursuant to the Senior Note Loan Agreement and the Liquidating Trust
Agreement, the Trust is required to apply all proceeds from
liquidation and disposition of the Trust's assets first to payment of
normal operating expenses, including a servicing fee to FirstCity, and
unpaid administrative claims of the Debtor. Second, Trust proceeds
are remitted to the senior lenders for payment of principal and
interest (see Note C). Third, Trust proceeds are distributed to
FirstCity, the sole Class A Certificate holder, for payment of (i)
principal and interest on senior subordinated notes, (ii) cumulative
quarterly cash dividends ($1.9 million and $3.9 million, respectively,
at December 31, 1996 and 1995) at the annual rate of $3.15 per share
(on 2,460,911 shares) and (iii) redemption of nominal stated value of
$51.7 million of FirstCity special preferred stock on September 30,
1998. The Trust distributed $105.7 million to FirstCity in 1996 for
the early redemption of senior subordinated notes and $1 million
senior subordinated notes held by the Trust were cancelled. In
addition, the Trust distributed $9.6 million to FirstCity in 1996 and
$1.9 million on January 15, 1997 for accrued dividends on special
preferred stock. Subsequent to December 31, 1996, the Trust, in
cooperation with FirstCity, began making distributions to FirstCity
for the purchase of FirstCity special preferred stock. As of February
14, 1997, the Trust has distributed approximately $7.2 million to
FirstCity for the repurchase by FirstCity of approximately 306,000
shares (nominal stated value of $6.4 million) of special preferred
stock.
The fourth order of distribution of Trust proceeds is payments
pursuant to employment agreements with certain former employees of the
Debtor. Fifth, Class B Certificate holders (and, pursuant to bonus
agreements, certain former employees of the Debtor) are entitled to
distributions up to the Pour-Over Level (as hereinafter defined). The
bonus pool and executive long-term incentive plan provides for the
payment of $750,000 in bonuses to certain former employees of the
Debtor after the Trust achieves approximately $275 million of net
collections, the payment of another $750,000 after approximately $30
million of additional net collections, and the payment of bonuses in
the amount of 5% of all net collections in excess of $305 million.
The Pour-Over Level (approximately $130 million at December 31, 1996)
is the liquidation preference on July 3, 1995 of the Debtor's Series B
and Series E preferred stock, less the nominal stated value of
FirstCity special preferred stock and the book value of FirstCity
common stock issued to the Series B and Series E holders, plus
interest at an annual rate of 6.5% from July 3, 1995. Lastly, Class C
Certificate holders receive distributions, if any, after all required
payments to Class B Certificate holders. No distributions to Class C
Certificate holders are anticipated.
16
<PAGE> 18
FIRSTCITY LIQUIDATING TRUST AND SUBSIDIARIES
Notes to Consolidated Financial Statements
(continued)
The ultimate amounts to be distributed to the holders of the A, B and
C Certificates will result from the cash flow actually realized from
the liquidation of the non-cash Trust assets and contingent asset
claims. The determination of the net asset value of the Trust in the
accompanying consolidated statements of net assets in liquidation is
based upon estimates of future cash flows. The actual cash flows and
the timing of such cash flows may vary significantly from those
estimates, thus affecting the final distributions to the Certificate
holders.
(E) Investment Management Agreement
Pursuant to an investment management agreement, FirstCity manages the
liquidation of Trust assets and the Trust will pay FirstCity a 3%
servicing fee on collections (as defined in the Investment Management
Agreement) up to a specified level of collections. Thereafter, the
servicing fee percentage increases with additional levels of
collections. Administrative expense includes $4.2 million in 1996 and
$3.1 million for the period from inception through December 31, 1995,
for servicing fees. In the first quarter of 1997, the Investment
Management Agreement is expected to be terminated and, in
consideration of this termination, the Trust is expected to pay
FirstCity $6.8 million, plus interest at a rate of 10 percent per
annum from January 1, 1997 until paid.
(F) Contingencies
The Trust is involved in various legal proceedings in the ordinary
course of business. In the opinion of management of the Trust, the
resolution of such matters should not have a material adverse impact
on the financial position, results of operations or liquidity of the
Trust.
In 1996, the FDIC closed the receiverships of the Debtor's banks and
distributed the remaining surplus of those receiverships to the Trust.
In accordance with a conveyance and indemnification agreement, the
Trust will be required, among other things, to provide indemnity until
March 31, 1999 to the FDIC against any known or unknown liabilities,
obligations or actual expenses which may arise now or in the future
associated with the receiverships, in an aggregate amount up to $12
million. Management of the Trust does not believe that, to the extent
the Trust is obligated to pay certain claims or expenses associated
with the past obligations of the Debtor's banks, such payments will
have a material adverse impact on the financial position, results of
operations or liquidity of the Trust.
17
<PAGE> 19
INDEPENDENT AUDITORS' REPORT
The Portfolio Committee and Certificate Holders
FirstCity Liquidating Trust:
We have audited the accompanying consolidated statements of net assets
in liquidation of FirstCity Liquidating Trust and subsidiaries as of December
31, 1996 and 1995, and the related consolidated statements of income and
changes in net asset value in liquidation, and cash flows for the year ended
December 31, 1996, and for the period from July 3, 1995 (effective date of
inception) through December 31, 1995. These consolidated financial statements
are the responsibility of the Trust's management. Our responsibility is to
express an opinion on these consolidated financial statements based on our
audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the consolidated financial statements referred to
above present fairly, in all material respects, the financial position of
FirstCity Liquidating Trust and subsidiaries as of December 31, 1996 and 1995,
and the results of its operations and changes in net asset value in liquidation
and cash flows for the year ended December 31, 1996, and for the period July 3,
1995 (effective date of inception) through December 31, 1995, in conformity
with generally accepted accounting principles.
KPMG Peat Marwick LLP
Fort Worth, Texas
February 14, 1997
18
<PAGE> 20
FIRSTCITY LIQUIDATING TRUST
SELECTED UNAUDITED QUARTERLY FINANCIAL DATA
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
1996 1995
------------------------------------------------------ --------------------------
First Second Third Fourth Inception Fourth
to
Quarter Quarter Quarter Quarter September 30 Quarter
--------- --------- ---------- ---------- ------------ ----------
<S> <C> <C> <C> <C> <C> <C>
Changes in fair value
of trust assets . . . . . . . . . $ 15,323 $ 10,576 $ 10,591 $ 15,729 $ 15,219 $ 18,329
Interest income on
short-term investments
323 147 167 158 181 194
Interest expense . . . . . . . .
(15) (96) (214) - (1,336) (405)
Administrative expense . . . . .
(3,325) (3,589) (2,749) (3,261) (2,189) (6,363)
-------- --------- ---------- ---------- -------- ----------
Net income . . . . . . . . . $ 12,306 $ 7,038 $ 7,795 $ 12,626 $ 11,875 $ 11,755
======== ========= ========== ========== ======== ==========
</TABLE>
Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure.
None.
Part III
Item 10. Directors and Executive Officers of the Registrant.
Role of the Portfolio Committee
Pursuant to Article IV of the Trust Agreement, except where expressly
limited by the terms of the Trust Agreement, all of the management and
executive authority over the Trust resides in the four-member Portfolio
Committee (subject to increase and reduction). The Trust Agreement provides
that such four members are initially Rick R. Hagelstein, the Chief Credit
Officer of FirstCity (the "Chief Credit Officer Member Position"), Robert W.
Brown (the "Robert W. Brown Member Position"), and Richard Bean and David
Palmer, as the two members designated by the Equity Committee (the "Equity
Committee Member Positions"). All have been members of the Portfolio Committee
since the Effective Date. Background information and the employment histories
of Messrs. Bean, Brown, Hagelstein and Palmer are set forth below.
Richard E. Bean, 53, has been Executive Vice President and Chief
Financial Officer of Pearce Industries, Inc. since 1976, which company,
through its subsidiaries, markets a variety of oilfield equipment and
machinery. Prior to the Effective Date, Mr. Bean was Chairman of the Equity
Committee. Mr. Bean is currently a director of FirstCity and TransAmerican
Waste Industries, Inc.
Robert W. Brown, 48, has been President of FCLT Loans Asset Corp.
since the Effective Date. As of the Effective Date, Mr. Brown served as
Executive Vice President and Secretary of FirstCity. After the Effective Date
he resigned from FirstCity to devote substantially
19
<PAGE> 21
all of his time to the Trust. Mr. Brown was Chief Financial Officer of the
Debtor beginning in 1991. He served as Executive Vice President of the Debtor
from 1990 to 1992, became a member of the Debtor's Board of Directors in 1992
and served as President of the Debtor from 1993 through the Effective Date.
Mr. Brown was a director and officer of the Debtor when the Debtor filed a plan
of reorganization under the Federal bankruptcy laws in December 1994.
Rick R. Hagelstein, 50, has been Executive Vice President and Managing
Director of Asset Management of FirstCity since November 1996. Prior thereto,
Mr. Hagelstein served as Executive Vice President and Chief Credit Officer of
FirstCity since the Effective Date, and was Executive Vice President and Chief
Credit Officer of J-Hawk from 1990 until the Merger. From 1988 to 1990, Mr.
Hagelstein was Executive Vice President of ASK Corporation, a manufacturer of
solar energy devices. Mr. Hagelstein is also currently a director of
FirstCity.
David Palmer, 54, has been a private investor for the past 25 years.
Prior to the Effective Date, Mr. Palmer was a member of the Equity Committee.
From 1970 to 1995, Mr. Palmer was a Professor of Philosophy at the State
University of New York--Fredonia, New York. Mr. Palmer is currently a director
of FirstCity.
Other Executive Officers
Chris J. O'Mara, 45, has been Vice President of FCLT Loans Asset Corp.
since January 1996. Prior thereto, Mr. O'Mara was an independent contractor
in the financial services industry from 1993 to 1996 (and a contractor of the
Trust from August, 1995 to January, 1996). Mr. O'Mara was Executive Vice
President and Division Manager of First City, Texas- Houston, N.A. from 1991 to
1993.
Role of the Trustee
Although all of the management and executive authority over the Trust
resides in the Trustee, the Trustee functions as a directed Trustee under the
sole and absolute discretion of the Portfolio Committee and may not exercise
discretion in the management and conduct of the liquidation of the Trust-Owned
Affiliate Assets. The Trustee has no authority or right to refuse to act when
so ordered or directed to do so by the Portfolio Committee. The Trustee is
Fleet National Bank. There have been no changes in the Trustee through the
date of this Form 10-K.
Role of the Investment Manager
Pursuant to the terms of the Investment Management Agreement, the role
of the Investment Manager is to manage and service collection and liquidation
of the Trust-Owned Affiliate Assets. The Investment Manager is paid an
incentive fee, which is described more fully in Item 13 below. The Investment
Management Agreement was terminated on March 24, 1997.
20
<PAGE> 22
Section 16(a) Beneficial Ownership Reporting Compliance
Each Portfolio Committee member and officer of the Trust who is
subject to Section 16 of the Securities Exchange Act of 1934, as amended, is
required to report to the Securities and Exchange Commission, by a specified
date, his or her beneficial ownership of, or certain transactions in, the
Trust's securities. Mr. Brown, who served as President of FCLT Loans Asset
Corp. and as a member of the Portfolio Committee during 1996, and Messrs. Bean,
Hagelstein and Palmer, all of whom served as members of the Portfolio Committee
of the Trust during 1996, failed to file Form 3s on a timely basis in 1995 and
1996. All such Form 3s have been filed. A Form 4 filed by Mr. Palmer in 1995,
while received by the Securities and Exchange Commission in a timely manner,
was rejected because the filing omitted the name of the company.
Subsequently, the Form 4 was re-filed.
Item 11. Executive Compensation.
Compensation of the Trustee
The compensation paid by the Trust to the Trustee consisted of a one
time acceptance fee of $9,000 in 1995 and payments of administrative and
registrar fees aggregating approximately $20,500 in 1996 and $26,500 in 1995.
Unless renegotiated, annual administrative and registrar fees to be paid to the
Trustee shall remain constant.
Compensation of the Portfolio Committee
Pursuant to the terms of Article X of the Trust Agreement, the
Portfolio Committee consists of the following four members: Rick R. Hagelstein
in the Chief Credit Officer Member Position, Robert W. Brown in the Robert W.
Brown Member Position, and two members as designated by the Equity Committee,
who at present are Richard Bean and David Palmer. Pursuant to Section 10.1.1
of the Trust Agreement, Messrs. Bean and Palmer, or their respective
successors, each receives compensation for his services as a member of the
Portfolio Committee in an amount equal to $12,000 per annum, payable in $3,000
increments on the first day of each calendar quarter. In addition, pursuant to
a resolution of the Board of Directors of Loans Asset Corp., Messrs. Bean and
Palmer each receive $1,000 for each Portfolio Committee meeting which they
attend. The other two members are not separately compensated for their
services as members of the Portfolio Committee.
21
<PAGE> 23
Compensation of Executive Officers
Executive officers of the Trust received cash and non-cash
compensation from the Effective Date through December 31, 1996 as set forth in
the following table:
<TABLE>
<CAPTION>
ANNUAL COMPENSATION
NAME AND -------------------------------- ALL OTHER
PRINCIPAL POSITION YEAR(1) SALARY BONUS COMPENSATION
- --------------------------- ------- ----------- ------------ --------------
<S> <C> <C> <C> <C>
Robert W. Brown 1996 $ 250,000 $ 25,000 $ 7,291 (3)
- President of FCLT 1995 125,000 (2) -- 3,412
Loans Asset Corp.
Chris J. O'Mara 1996 $ 117,472 $ 37,500 $ 1,355 (4)
- Vice President of FCLT
Loans Asset Corp.
</TABLE>
- --------------------
(1) The employment of Mr. Brown as President of FCLT Loans Asset Corp.
commenced on July 3, 1995. The employment of Mr. O'Mara as Vice President
of FCLT Loans Asset Corp. commenced in January, 1996.
(2) Only reflects salary paid to Mr. Brown from July 3, 1995 through December
31, 1995. If Mr. Brown had received salary from the beginning of the
fiscal year, his salary would have been $250,000.
(3) The total amount indicated under "All Other Compensation" consists of (a)
amounts contributed to match a portion of his contributions under a 401(k)
plan ($4,500), (b) excess premiums paid on supplemental life insurance
policies ($1,266) and (c) premiums paid on long term disability insurance
policies ($1,525).
(4) The total amount indicated under "All Other Compensation" consists of (a)
excess premiums paid on supplemental life insurance policies ($710) and
(b) premiums paid on long term disability insurance policies ($645).
Mr. Brown's compensation is determined as set forth in that
certain employment agreement (the "Brown Employment Agreement"), effective as
of July 3, 1995, as amended May 1, 1996, by and between FCLT Loans Asset Corp.
and Mr. Brown, a copy of which is filed herewith as Exhibit 10.2. The Brown
Employment Agreement provides for Mr. Brown's employment with FCLT Loans Asset
Corp. and his duties to the Trust for a term commencing on July 3, 1995 and
terminating on September 30, 1998. Mr. Brown's duties include his membership
on the Portfolio Committee of the Trust, the management and payment of creditor
claims and the liquidation of the assets of the Trust pursuant to the terms of
the Trust Agreement. In compensation for such services, Mr. Brown is paid an
annual salary of $250,000. The Brown Employment Agreement also provides for
several performance-oriented conditional bonuses which are determined as
follows: (i) a conditional bonus in the amount of $250,000 shall be paid to Mr.
Brown within thirty (30) days of the fulfillment of all of the following: (a)
all Class 1, 2, 3, 4, 5 and 8 creditor claims (in the approximate amount of $80
million) are paid in full in accordance with the terms of the Plan, (b) the
holders of the senior subordinated notes are paid in full (in the approximate
amount of $115 million, including interest) and (c) the holders of the special
preferred stock and the holders of Class B Certificates are paid in cash a
total of $100 million; (ii) a conditional bonus in the amount of $250,000 shall
be paid to Mr. Brown within thirty (30) days of the fulfillment of all of the
conditions set forth in (i) above and if an additional aggregate $30
22
<PAGE> 24
million has been paid to the Class B Certificate holders and (iii) a
conditional bonus in an amount equal to 1.67% of all additional aggregate
payments to the holders of the special preferred stock, the Class B
Certificates and the Class C Certificates shall be paid to Mr. Brown within
thirty (30) days of each such additional distribution. The payment of such
conditional bonuses to Mr. Brown are to be determined by the Portfolio
Committee. In the event that the Brown Employment Agreement is terminated by
the Portfolio Committee prior to the termination date of the Trust, or upon the
death or disability of Mr. Brown, Mr. Brown or his estate is entitled to
continue to receive certain bonuses pursuant to the terms set forth in the
Brown Employment Agreement. Mr. Brown is also eligible for enrollment in
certain benefit plans which FCLT Loans Asset Corp. may have in effect from time
to time, including, but not limited to, hospital, surgery, major medical,
dental, vacation, sick leave, disability and life insurance on the same terms
and conditions as these benefits are provided for or made available to other
employees. Mr. Brown is currently a participant in the 401(k) plan of
FirstCity, although amounts contributed to match a portion of any contribution
made into the 401(k) plan by Mr. Brown, are made into such plan on Mr. Brown's
behalf by the Trust.
In addition to the bonuses set forth in the Brown Employment
Agreement, pursuant to Section 9.8 of the Plan, Mr. Brown, along with C. Ivan
Wilson, Joe S. Greak and certain other employees of the Trust, share in a bonus
pool and executive long-term incentive plan, the provisions of which are set
forth in Exhibit O to the Plan. Pursuant to Exhibit O, Mr. Brown received an
initial cash payment from the bonus pool in the amount of $500,000 immediately
prior to the formation of the Trust. From the Effective Date through December
31, 1996, no awards were given under such bonus pool or executive long-term
incentive plan. Mr. Brown's unpaid bonuses will be forfeited in the event that
he terminates the Brown Employment Agreement or is terminated by FCLT Loans
Asset Corp. prior to the date of the expiration of the Brown Employment
Agreement.
Compensation of the Investment Manager
The liquidation of the assets transferred to the Trust pursuant to the
Plan are managed by FirstCity, in return for which FirstCity receives a
servicing fee as set forth in the Investment Management Agreement. See Item 13
below for a more detailed discussion regarding the compensation arrangement
between the Trust and FirstCity. The Investment Management Agreement was
terminated on March 24, 1997.
Reimbursement Arrangement with FirstCity
The Trust has entered into an oral reimbursement arrangement (the
"Reimbursement Arrangement") with FirstCity. Pursuant to such Reimbursement
Arrangement, FirstCity pays the salaries of and disburses the checks to all of
the employees on the payroll of the Trust. The Trust then reimburses FirstCity
for all sums paid out to the employees of the Trust by FirstCity.
23
<PAGE> 25
Item 12. Security Ownership of Certain Beneficial Owners and
Management.
(a) Since the Trust has no outstanding "voting securities"
within the meaning of the Exchange Act and the regulations thereunder, the
disclosure requirements of Form 10-K pertaining to 5% holders of voting
securities are not applicable.
(b) The following table sets forth certain information with
respect to the beneficial ownership of the Class B and Class C Beneficial
Interests, as of February 28, 1997, by the members of the Portfolio
Committee. The Trustee is not the beneficial owner of any Class B or
Class C Beneficial Interests.
<TABLE>
<CAPTION>
NUMBER OF CLASS B BENEFICIAL INTERESTS
AND PERCENTAGE OF OUTSTANDING
CLASS B BENEFICIAL INTERESTS
AS OF FEBRUARY 28, 1997
-----------------------------------------
BENEFICIAL PERCENT
NAME AND ADDRESS OF OWNER OR IDENTITY OF GROUP OWNERSHIP OF CLASS
- ---------------------------------------------- --------- --------
<S> <C> <C>
Robert W. Brown . . . . . . . . . . . . . . . . . . . . . . . . . . -- --
Richard E. Bean . . . . . . . . . . . . . . . . . . . . . . . . . . 98,100 4.0
Rick R. Hagelstein . . . . . . . . . . . . . . . . . . . . . . . . -- --
David Palmer . . . . . . . . . . . . . . . . . . . . . . . . . . . 139,539 5.7
All Portfolio Committee members as a group (4 persons) . . . . . . 237,639 9.7
</TABLE>
<TABLE>
<CAPTION>
NUMBER OF CLASS C BENEFICIAL INTERESTS
AND PERCENTAGE OF OUTSTANDING
CLASS C BENEFICIAL INTERESTS
AS OF FEBRUARY 28, 1997
------------------------------------------
BENEFICIAL PERCENT
NAME AND ADDRESS OF OWNER OR IDENTITY OF GROUP OWNERSHIP OF CLASS
- ---------------------------------------------- --------- --------
<S> <C> <C>
Robert W. Brown . . . . . . . . . . . . . . . . . . . . . . . . . . 197 *
Richard E. Bean . . . . . . . . . . . . . . . . . . . . . . . . . . -- --
Rick R. Hagelstein . . . . . . . . . . . . . . . . . . . . . . . . 1,487 (1) *
David Palmer . . . . . . . . . . . . . . . . . . . . . . . . . . . -- --
All Portfolio Committee members as a group (4 persons) . . . . . . 1,684 *
</TABLE>
__________________________
* Less than 1%
(1) The Class C Beneficial Interests are held of record by ATARA I, LTD.,
a Texas limited partnership ("ATARA"). ATARA is principally engaged
in the investment in FirstCity's common stock. The sole general
partner of ATARA is ATARA Corp., a Texas corporation ("ATARA Corp."),
which is also principally engaged in the investment in FirstCity's
common stock. Mr. Hagelstein may be deemed to beneficially own all
such certificates by virtue of being the Chairman of the Board and
President of ATARA Corp.,
24
<PAGE> 26
and by reason of the fact that his wife is the only other officer or
director of ATARA Corp. and owns 33.33% of the outstanding shares of
common stock of ATARA Corp.
(c) Because the Trust does not have any "voting securities" within
the meaning of the Exchange Act and the regulations thereunder, changes in
ownership of voting securities will not result in a change of control of the
Trust. Pursuant to the terms of the Trust Agreement, all of the management and
executive authority over the Trust resides in the four-member Portfolio
Committee.
The Trust has no knowledge of any arrangements which may
result in a change of control of the Trust. However, in the event that the
position on the Portfolio Committee held by Robert W. Brown is vacated for any
reason, the number of Portfolio Committee members will be permanently reduced
to three. In such instance, all three of the current remaining members of the
Portfolio Committee will be affiliated with FirstCity and, as a result,
FirstCity may be deemed to have exclusive control over Portfolio Committee
decisions.
Item 13. Certain Relationships and Related Transactions.
Investment Management Agreement with FirstCity
Pursuant to the Plan, the liquidation of the Debtor's assets
transferred to the Trust is serviced by FirstCity pursuant to an Investment
Management Agreement between the Trust and FirstCity. Under the terms thereof,
FirstCity receives an incentive fee ("Incentive Fee") equal to (1) 3% of all
cash proceeds derived from the assets owned by the Trust and its subsidiaries,
including assets acquired pursuant to the Loss-Sharing Settlement Agreement
("Net Cash Proceeds") plus (2) 5% of the Net Cash Proceeds (excluding net
proceeds realized from Contingent Assets Claims, as defined in the Plan)
realized above $248.6 million, as adjusted (the "Estimated Threshold Collection
Amount") up to an amount equal to $25 million in excess of the Estimated
Threshold Collection Amount; 10% of the Net Cash Proceeds (excluding net
proceeds realized from Contingent Asset Claims) realized above $25 million in
excess of the Estimated Threshold Collection Amount up to an amount equal to
$50 million in excess of the Estimated Threshold Collection Amount; and 15% of
the Net Cash Proceeds (excluding net proceeds realized from Contingent Asset
Claims) realized above $50 million in excess of the Estimated Threshold
Collection Amount. The Trust paid FirstCity an Incentive Fee of $4.2 million
in 1996 and $3.1 million in 1995. In the first quarter of 1997, the Investment
Management Agreement was terminated and, in consideration of this termination,
the Trust paid FirstCity $6.8 million, plus interest at a rate of 10 percent
per annum from January 1, 1997 until paid.
Distributions to FirstCity as Class A Certificate Holder
As the sole holder of the Class A Certificate, FirstCity receives
distributions from the Trust to (i) pay certain expenses, (ii) pay obligations
under its senior subordinated notes, $106.7 million of which were issued by
FirstCity as a result of the implementation of the Plan and the consummation of
the Merger, all of which have now been redeemed and (iii) redeem and pay
25
<PAGE> 27
dividends on $51.7 million of special preferred stock which was issued to
certain former security holders of the Debtor as a result of the implementation
of the Plan and the consummation of the Merger. In connection therewith, the
Trust distributed $120 million, of which $111 million was used to pay
principal and interest on the senior subordinated notes, in 1996 and $4.7
million in 1995 to FirstCity. Subsequent to December 31, 1996, the Trust, in
cooperation with FirstCity, began making distributions to FirstCity for the
purchase of FirstCity special preferred stock. As of March 24, 1997, the Trust
has distributed approximately $8.3 million to FirstCity for the repurchase by
FirstCity of approximately 354,000 shares of special preferred stock.
C. Ivan Wilson Employment Agreement and Separation Agreement
C. Ivan Wilson was Chairman of the Board and Chief Executive Officer
of the Debtor prior to the Effective Date and has been Vice Chairman of
FirstCity since that date. Pursuant to the terms of an employment agreement by
and between Mr. Wilson and FirstCity, dated July 3, 1995 (the "Wilson
Employment Agreement"), Mr. Wilson (1) was paid $500,000 by the Debtor on the
Effective Date, (2) was granted an annual salary of $250,000 (of which 50
percent would be paid by FirstCity and 50 percent would be paid by the Trust as
compensation for Mr. Wilson's services to the Trust in the administration of
Trust assets) for a three year term beginning the Effective Date and (3) is
entitled to receive conditional bonuses equal to those described in the Brown
Employment Agreement. Effective May 31, 1996, Mr. Wilson and FirstCity entered
into a separation agreement whereby the remaining salary to be paid to Mr.
Wilson in accordance with the terms of the Wilson Employment Agreement was
settled for a lump sum payment of approximately $444,000 (50 percent paid by
FirstCity and 50 percent paid by the Trust). Notwithstanding the separation
agreement, Mr. Wilson is entitled to receive conditional bonuses as described
above.
Part IV
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K.
(a) 1. Financial Statements
The consolidated financial statements of the Trust are incorporated by
reference to Item 8 "Financial Statements and Supplementary Data" of
this report.
2. Financial Statement Schedules
Financial statement schedules have been omitted because the
information is either not required, not applicable, or is included in
Item 8 - "Financial Statements and Supplementary Data."
3. Exhibits
26
<PAGE> 28
<TABLE>
<CAPTION>
Exhibit
No. Description
------- ------------------------------------------------------------------------------------------------------------
<S> <C>
2.1* Joint Plan of Reorganization for First City Bancorporation of Texas, Inc., as modified, under Chapter
11 of the United States Bankruptcy Code, as confirmed by the U.S. Bankruptcy Court for the Northern
District of Texas, Dallas division on May 31, 1995.
3.1* The Liquidating Trust Agreement, dated as of July 3, 1995, by and between First City Bancorporation of
Texas, Inc. and Shawmut Bank Connecticut, National Association (now Fleet National Bank), as Trustee.
4.1* Form of Class B Certificate.
4.2* Form of Class C Certificate.
10.1* Investment Management Agreement, dated as of July 3, 1995, by and between FirstCity, as Investment
Manager, and the Trust.
10.2 Employment Agreement, effective as of July 3, 1995, by and between FCLT Loans Asset Corp. and Robert W.
Brown, as amended May 1, 1996.
10.3* Loan Agreement, dated as of July 11, 1995, among Loans, L.P., Fleet National Bank, as Agent and as
Lender, and NationsBank of Texas, N.A., as Lender.
10.4** Settlement Agreement, dated as of June 22, 1994, as amended as of January 30, 1995, by and among FDIC-
Corporate, the FDIC-Receivers and the First City Parties.
10.5 Conveyance and Indemnification Agreement, dated December 23, 1996, between FDIC-Corporate, the FDIC-
Receivers, FCLT Loans, L.P. and the Trust.
10.6 Termination Agreement, dated March 24, 1997, by and between FirstCity and the Trust.
21.1* Subsidiaries of the Trust.
27.1 - Financial Data Schedule.
</TABLE>
* Filed as the exhibit indicated to the Registration Statement on Form 10
filed with the Securities and Exchange Commission on May 1, 1996
and incorporated herein by reference.
** Filed as the exhibit indicated to the Registration Statement on Form
10/A filed with the Securities and Exchange Commission on July 10,
1996 and incorporated herein by reference.
27
<PAGE> 29
(b) Reports on Form 8-K. No report on Form 8-K was filed by the Registrant
with the Commission during the quarterly period ended December 31, 1996.
28
<PAGE> 30
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) 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.
FLEET NATIONAL BANK, as Trustee
Date: March 28, 1997 /s/ Susan T. Keller
-------------------------------
Name: Susan T. Keller
--------------------------
Title: Vice President
-------------------------
<PAGE> 31
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
No. Description
------- --------------------------------------------------------------------------------------------------------
<S> <C>
2.1* Joint Plan of Reorganization for First City Bancorporation of Texas, Inc., as modified, under Chapter
11 of the United States Bankruptcy Code, as confirmed by the U.S. Bankruptcy Court for the Northern
District of Texas, Dallas division on May 31, 1995.
3.1* The Liquidating Trust Agreement, dated as of July 3, 1995, by and between First City Bancorporation of
Texas, Inc. and Shawmut Bank Connecticut, National Association (now Fleet National Bank), as Trustee.
4.1* Form of Class B Certificate.
4.2* Form of Class C Certificate.
10.1* Investment Management Agreement, dated as of July 3, 1995, by and between FirstCity, as Investment
Manager, and the Trust.
10.2 Employment Agreement, effective as of July 3, 1995, by and between FCLT Loans Asset Corp. and Robert W.
Brown, as amended May 1, 1996.
10.3* Loan Agreement, dated as of July 11, 1995, among Loans, L.P., Fleet National Bank, as Agent and as
Lender, and NationsBank of Texas, N.A., as Lender.
10.4** Settlement Agreement, dated as of June 22, 1994, as amended as of January 30, 1995, by and among FDIC-
Corporate, the FDIC-Receivers and the First City Parties.
10.5 Conveyance and Indemnification Agreement, dated December 23, 1996, between FDIC-Corporate, the FDIC-
Receivers, FCLT Loans, L.P. and the Trust.
10.6 Termination Agreement, dated March 24, 1997, by and between FirstCity and the Trust.
21.1* Subsidiaries of the Trust.
27.1 - Financial Data Schedule.
</TABLE>
* Filed as the exhibit indicated to the Registration Statement
on Form 10 filed with the Securities and Exchange Commission on May 1,
1996 and incorporated herein by reference. ** Filed as the exhibit
indicated to the Registration Statement on Form 10/A filed with the
Securities and Exchange Commission on July 10, 1996 and incorporated
herein by reference.
<PAGE> 1
EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), dated and effective
May 1, 1996, is made and entered into by and between FCLT LOANS ASSET
CORP., a corporation organized and operating under the laws of Texas and having
its principal place of business located at 1021 Main Street, Suite 2600, P.O.
Box 105, Houston, Texas 77001-0105 (the "Employer") and ROBERT W. BROWN, an
individual currently residing at 2011 Castlerock, Houston, Texas 77090 (the
"Employee").
W I T N E S S E T H:
WHEREAS, the Employer and Employee desire to commence the employment
relationship and enter into this Agreement in order to retain Employee's
services for and on behalf of Employer.
In consideration of the mutual promises and covenants set forth, the
Employer and Employee agree as follows:
ARTICLE 1.
TERM AND DUTIES OF EMPLOYMENT
1.01 Employment Term. The Employer agrees to employ the Employee
as President and the Employee accepts this employment and agrees to render
services to the Employer on the terms and conditions set forth in this
Agreement. The employment term of this Agreement shall begin on July 3, 1995
and terminate on September 30, 1998, unless further extended or terminated in
accordance with this Agreement.
1.02 Employee Duties. The Employee will perform executive services
for the Employer as may be consistent with Employee's title, President, along
with other duties that may be assigned from time to time by the Employer.
During this Agreement's term, the Employee's best efforts will
EMPLOYMENT AGREEMENT OF ROBERT W. BROWN - Page 1
<PAGE> 2
be devoted to the affairs and business of the Employer, as is customarily
required for the position of President, including membership on the Portfolio
Committee of the First City Liquidating Trust.
(a) The Employee's duties will include the management and
payment of creditor claims, including payment to noteholders and
certificate holders pursuant to First City Financial Corporation's
bankruptcy reorganization plan (the "Reorganization Plan") in Case No.
392-3947Y-HCA-11, styled "In Re: First City Bancorporation of Texas,
Inc." as described more fully under paragraphs 2.02 through 2.07 of
this Agreement.
(b) The Employee's duties will include the liquidation of
the First City Liquidating Trust (hereinafter "the Trust") assets in
accordance with the terms, conditions, rules, etc. of the Trust
agreement.
1.03 Approval of Portfolio Committee or First City Financial
Corporation Required. Before entering into any agreement with respect to the
liquidation of any Trust assets, the Employee must, in accordance with the
terms of the Trust agreement, first get written approval from either the
Portfolio Committee of the Trust or First City Financial Corporation pursuant
to the Investment Management Agreement.
ARTICLE 2.
COMPENSATION
2.01 Basic Compensation. Employer agrees to pay Employee for his
services as President throughout the term of this Agreement an annual salary of
$250,000.00, to be paid in two monthly installments in accordance with the
Employer's normal payroll practice and on the Employer's regularly scheduled
paydays.
EMPLOYMENT AGREEMENT OF ROBERT W. BROWN - PAGE 2
<PAGE> 3
2.02 Conditional Bonus #1. Employer will pay Employee an
additional bonus in the event that all of the following conditions are
fulfilled as determined by the Portfolio Committee of the Trust:
(a) All Class 1, 2, 3, 4, 5, and 8 creditor claims are
paid in full according to the terms of the Reorganization Plan
(approximately $80,000,000.00);
(b) New Senior Subordinated Noteholders are paid in full
(approximately $115,000,000.00, including interest); and
(c) New Special Preferred Stockholders and Class B
Certificate holders are paid in cash a total of $100,000,000.00.
If all of the above conditions are fulfilled as determined by the
Portfolio Committee of the Trust, the Employer will pay Employee an additional
bonus of $250,000.00 in one lump sum payment within thirty (30) days of the
fulfillment of all the above conditions.
2.03 Conditional Bonus #2. Employer shall pay Employee an
additional bonus if all of the conditions in Section 2.02 of this Agreement are
fulfilled and if the following condition is also fulfilled as determined by the
Portfolio Committee of the Trust:
(a) An additional aggregate $30,000,000.00 has been paid
to the Class B Certificate holders.
If the conditions in Section 2.02 of this Agreement and the above
condition is fulfilled as determined by the Portfolio Committee of the Trust,
Employer shall pay Employee an additional bonus of $250,000.00 in one lump sum
payment within thirty (30) days of the fulfillment of the above condition.
EMPLOYMENT AGREEMENT OF ROBERT W. BROWN - PAGE 3
<PAGE> 4
2.04 Conditional Bonus #3. If Employee fulfills all the conditions
in Sections 2.02 and 2.03 of this Agreement as determined by the Portfolio
Committee of the Trust, then Employer shall pay Employee an additional bonus in
a sum equal to 1.67% of all additional aggregate payments made to Class B
Certificate Holders and Class C Certificate Holders. Such payments will be
made within thirty (30) days of each additional distribution.
2.05 Calculation of Bonuses - Payments Counted. In calculating any
bonus in this Agreement, the following payments will be counted:
(a) Payments to New Special Preferred Stockholders,
including principal payments, dividend payments, and the initial
$14,000,000.00 of book value attributed to New Common Shares awarded
to the Special Preferred Stockholders in the Reorganization Plan.
2.06 Calculation of Bonuses - Payments Not Counted. In calculating
any bonus in this Agreement, the following payments will not be counted:
(a) Payments to New Special Preferred Stockholders and
Class B Certificate Holders that are the result of interest earned on
Trust pool idle funds.
ARTICLE 3.
BENEFITS
Employee shall further be entitled to receive:
3.01 Benefit Plans. The Employer agrees to include and enroll the
Employee, if the Employee is eligible, in any benefit plans the Employer may
from time to time have in effect, including but not limited to hospital,
surgical, major medical, dental, vacation, sick leave, disability and life on
the same terms and conditions as these benefits are provided for or made
available to other employees.
EMPLOYMENT AGREEMENT OF ROBERT W. BROWN - PAGE 4
<PAGE> 5
ARTICLE 4.
TERMINATION
4.01 Employee Termination of Agreement. During the term of this
Agreement, the Employee can terminate this Agreement by giving notice in
accordance with Section 5.01 at least thirty (30) days prior to the date of
termination. If the Employee terminates this Agreement prior to the end of the
term set forth in this Agreement under Section 1.01, the Employee will forfeit
any unpaid bonuses described in Sections 2.02 - 2.04 and his Basic Compensation
described in Section 2.01 of this Agreement will immediately cease. However,
the Employee's termination of this Agreement in compliance with the notice
provisions in this Agreement shall not affect any of the Employee's basic
compensation or bonuses described in Article 2 of this Agreement previously
paid to the Employee at the time of termination. Employer may only terminate
this Agreement prior to its expiration date for reasons set forth in paragraphs
4.02 and 4.03 hereof. Per the Trust Agreement, the life of the Trust can be
extended for up to four years in six month increments at the discretion of the
Portfolio Committee. If the Portfolio Committee elects to extend the life of
the Trust, then this contract automatically extends for a like period of time,
unless the Portfolio Committee advises Employee that it does not desire to
extend this Agreement. If the Portfolio Committee elects to extend the life of
the Trust but no longer desires the services of Employee, then Employee's
salary and benefits will terminate but conditional bonuses #1, #2 and #3 will
be paid in accordance with the terms of this Agreement.
EMPLOYMENT AGREEMENT OF ROBERT W. BROWN - PAGE 5
<PAGE> 6
4.02 Employer's Right to Terminate the Agreement for "Cause". The
Employer may terminate the Employee's employment for "cause". For purposes of
this Agreement, "cause" means the occurrence of any of the following:
(a) The Employee's act or acts in connection, directly or
indirectly, with the Employee's employment duties of dishonesty,
fraud, willful misconduct, incompetence, gross negligence or breach of
a fiduciary duty, which in the reasonable determination of the
Employer would preclude the continued effective performance of the
Employee's duties; or
(b) The Employee's conviction of, or plea of guilty or
nolo contendere to, a felony, a crime of falsehood, or a crime
involving moral turpitude;
(c) The Employee's willful violation of any federal or
state law, rule, or regulation in the course and scope of employment.
4.03 Employer's Right to Terminate the Agreement for Reasons in
Addition to "Cause". The Employer may terminate the Employee's employment for
the following additional reasons:
(a) The Employee's refusal to perform duties assigned in
accordance with this Agreement or overt and willful disobedience of
orders or directives issued by the Employer to the Employee;
(b) The Employee's violation of the Employer's rules and
regulations concerning conflicts of interest.
(c) The Employee's failure to effectively perform the
duties described in this Agreement and duties which are customary and
ordinary for the Employee's title even if not described in this
Agreement.
(d) Any act of the Employee which is not in the best
interest of the Employer undertaken in the Employee's course and scope
of employment.
EMPLOYMENT AGREEMENT OF ROBERT W. BROWN - PAGE 6
<PAGE> 7
(e) Any violation of this Agreement by the Employee.
4.04 Employer's Right to Terminate the Agreement Because of the
Employee's Death or Disability. In the event that Employee dies or becomes
disabled during the term of this Agreement then the Employer can terminate this
Agreement. In the case of Employee's death, Employee's salary and benefits
will terminate but Employee's estate will receive conditional bonuses #1, #2,
and #3 in accordance with this Agreement but less the value of any Trust
sponsored life insurance proceeds received by the Employee's estate. If the
Employee is disabled and this contract is terminated, then Employee's salary
and benefits will terminate but Employee will receive conditional bonuses #1,
#2 and #3 in accordance with this Agreement.
ARTICLE 5.
MISCELLANEOUS
5.01 Notices. Any notices, communications required under this
Agreement or consents, demands, requests, approvals or any other communications
regarding this Agreement shall be given to either party at the following
addresses:
(a) Notices to the Employer shall be delivered at 1021 Main
Street, Suite 2600, P.O. Box 105, Houston, Texas 77001-0105 with copies to
Richard Bean, 5643 Lynbrook, Houston, Texas 77056; David Palmer, 2817 Sancho
Panza, Punta Gorda, Florida 33950; and Rick Hagelstein, 6400 Imperial Drive,
P.O. Box 8216, Waco, Texas 76714-8216.
(b) Notices to the Employee shall be delivered at 2011 Castlerock,
Houston, Texas 77090.
Any and all notices contemplated by this Agreement shall be effected
in writing and delivered either by personal delivery or by certified mail,
return receipt requested. Notices delivered
EMPLOYMENT AGREEMENT OF ROBERT W. BROWN - PAGE 7
<PAGE> 8
personally shall be deemed communicated as of the actual receipt of the notice;
notices delivered pursuant to certified mail shall be deemed communicated as of
three (3) days after mailing.
5.02 Entire Agreement. This Agreement supersedes any and all other
agreements either oral or written, between the Employer and Employee with
respect to the subject matter of this Agreement and contains all of the
covenants and agreements between the parties regarding Employee's employment
with the Employer.
5.03 Severability. Each provision of this Agreement is intended to
be severable. If any term or provision hereof shall be determined by a court
of competent jurisdiction to be illegal or invalid for any reason whatsoever,
such term or provision shall be severed from this Agreement and shall not
affect the validity of the remainder of the Agreement.
5.04 Waiver. Waiver by any party of any breach of this Agreement
or failure to exercise any right under this Agreement shall not be deemed to be
a waiver of any other breach or right. The failure of any party to take action
by reason of such breach or to exercise any such right shall not deprive the
party of the right to take action at any time while or after such breach or
condition giving rise to such right.
5.05 Modification of Agreement. No change or modification of this
Agreement shall be valid or binding upon the parties, nor shall any waiver of
any term or condition be binding, unless such change, modification or waiver
shall be in writing and signed by the Employer and the Employee.
5.06 Governing Law. This Agreement and the rights and obligations
of the parties hereto shall be governed by and construed in accordance with the
laws of the State of Texas.
5.07 Arbitration. Any controversy or claim arising out of or
relating to this Agreement, or the breach thereof, shall be finally settled by
arbitration in the State of Texas in accordance with the rules of the American
Arbitration Association by an arbitrator appointed in accordance with
EMPLOYMENT AGREEMENT OF ROBERT W. BROWN - PAGE 8
<PAGE> 9
the rules of the American Arbitration Association. The arbitrator shall follow
the law governing this Agreement. Any such arbitration decision will be final
and binding. Judgment upon the award may be entered in any court having
jurisdiction.
5.08 Costs. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorney's fees, costs and necessary disbursements in
addition to any relief to which he or it may be entitled.
5.09 Assignability. The corporation shall have the right to assign
this Agreement only to an entity which it has merged or in which it owns a
controlling interest. The rights, duties and benefits of this Agreement to
Employee are personal to him and any such right, duty, or benefit may not be
assigned by Employee.
5.10 Binding Effect. This Agreement shall be binding upon the
parties hereto together with their personal executors, administrators,
successors, and personal representatives, heirs and permitted assigns.
5.11 Titles. The titles of the Articles in this Agreement do not
add or subtract from the obligations and rights contemplated in the text of
this Agreement.
5.12 Payment of Basic Compensation. The Employer will pay the
Employee's Compensation described in Article 2 of this Agreement. The Trust
will guarantee the payment of any of the Employee's Compensation as described
in Article 2 of this Agreement.
5.13 Withholdings, Deductions, Etc. The Employer may make
deductions, withholdings, or payments from sums payable to the Employee
pursuant to this Agreement as required by federal and/or state law or
regulation.
EMPLOYMENT AGREEMENT OF ROBERT W. BROWN - PAGE 9
<PAGE> 10
EMPLOYER:
FCLT LOANS ASSET CORP.
By:
----------------------------------
Name: Richard Bean
Title: Director
EMPLOYEE:
------------------------------------
ROBERT W. BROWN
EMPLOYMENT AGREEMENT OF ROBERT W. BROWN - PAGE 10
<PAGE> 1
EXHIBIT 10.5
CONVEYANCE AND INDEMNIFICATION AGREEMENT
This CONVEYANCE AND INDEMNIFICATION AGREEMENT (the "Agreement") dated
November ___, 1996 is entered into between the FEDERAL DEPOSIT INSURANCE
CORPORATION ("FDIC") in its corporate capacity ("FDIC Corporate"); the FDIC
Receivers (as defined in that certain Settlement Agreement dated as of June 22,
1994) (whether one or more, the "Indemnitee"); FCLT Loans, L.P., as an assignee
of First City Bancorporation of Texas, Inc. ("FCBOT") and its related entities
("FCBOT Affiliated Entities") (FCBOT and the FCBOT Affiliated Entities are
collectively referred to as the "First City Parties") and FIRSTCITY LIQUIDATING
TRUST ("FCLT"). Capitalized terms used in this Agreement and not otherwise
defined shall be given the same meaning as set forth in the Settlement Agreement
(as defined below).
RECITALS:
WHEREAS, pursuant to the terms of that certain Settlement Agreement
dated as of June 22, 1994, between FDIC Corporate, the FDIC Receivers, and the
First City Parties, as amended as of January 30, 1995 (as amended, the
"Settlement Agreement"), the FDIC Receivers agreed to, among other things, (i)
effect distributions of the Surplus (as defined in the Settlement Agreement)
generated out of the First City Bank Receiverships (as defined in the Bankruptcy
Plan) to the First City Parties and (ii) defend certain litigation and other
disputed matters of the First City Parties, the FDIC Receivers, FDIC Corporate
and/or certain other parties: and
WHEREAS, FCLT Loans, L.P. is an assignee of the First City Parties: and
WHEREAS, FCLT is the sole limited partner of FCLT Loans, L.P.; and
WHEREAS, the parties find it to be mutually desirable to terminate the
First City Bank Receiverships prior to the originally anticipated termination
date; and
WHEREAS, the FDIC Receivers desire to make an early final cash
distribution of Surplus in the amount of $19,690,217.33 (the "Cash Assets")
pursuant to Section 5.1 of the Settlement Agreement; and
<PAGE> 2
WHEREAS, as a condition to the closing of the First City Bank
Receiverships and the final distribution of Surplus by the FDIC Receivers prior
to the scheduled payment date and as consideration therefor, the parties desire
to enter into an agreement whereby (i) FCLT Loans, L.P. will provide indemnity
to the FDIC against any known or unknown liabilities, claims or expenses in an
aggregate amount up to $12 million, $2 million or the amount of known
litigation risk as determined in FDIC's sole discretion, whichever amount is
greater, of which shall be secured by a replenishable, interest bearing account
at FHLB-Chicago, payable to the FDIC, (ii) FCLT Loans, L.P. will assume all
outstanding obligations held by the FDIC associated with the First City Bank
Receiverships and (iii) all of the rights and privileges held by the FDIC
Receivers in cash assets shall be assigned to FCLT Loans, L.P.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement and other good and valuable consideration, the
receipt and sufficiency of which is acknowledged, the parties agree as follows:
1. DISTRIBUTION OF SURPLUS ASSIGNMENT OF RIGHTS.
a. ASSIGNMENT OF CASH ASSETS. As the final cash
distribution of Surplus pursuant to Section 5.1 of the Settlement
Agreement, the FDIC Receivers hereby sell, transfer, assign and convey
unto FCLT Loans, L.P. all of FDIC Receivers' rights, title and interest
in and to the Cash Assets.
b. INDEMNIFICATION. As a condition to and in consideration
of the assignment of the Cash Assets from the FDIC Receivers to FCLT
Loans, L.P., FCLT Loans, L.P. agrees to indemnify the FDIC against any
known or unknown liabilities, obligations or actual expenses
incurred by the FDIC which may arise now or in the future until the
Termination Date (as hereinafter defined) associated with the First
City Bank Receiverships (the "Indemnified Obligations"). Such
indemnification shall be subject to the conditions and limitations, and
governed by the procedures, set forth in Section 3 hereof.
2. ASSIGNMENT OF OUTSTANDING LITIGATION
a. PROCEEDS. The FDIC Receivers hereby transfer and
assign to FCLT Loans, L.P., and FCLT Loans, L.P. hereby assumes
and accepts, the obligation to pay all the costs and expenses incurred
or to be incurred in connection with the litigation, claims and
obligations described on Schedule A hereto (the "Outstanding Claims"),
and the right to receive any proceeds recovered by the FDIC in
connection therewith. The FDIC shall have the absolute right to defend
and manage the Outstanding Claims in its sole discretion, including,
but
2
<PAGE> 3
not limited to, the right to select counsel to defend the Outstanding Claims
and to settle the Outstanding Claims on terms acceptable to the FDIC.
3. INDEMNIFICATION
a. GENERAL. FCLT Loans, L.P. shall indemnify, and reimburse
Indemnitee for all liabilities, obligations, actual expenses, costs and any
loss incurred by the FDIC associated with the First City Bank Receiverships,
including, but not limited to, actual expenses incurred in connection with the
Outstanding Claims; provided, however, that in no event shall FCLT Loans,
L.P.'s liability under Section 1(b) and this Section 3(a) exceed twelve million
dollars ($12,000,000). The term "actual expenses" as used herein shall include,
but is not limited to, all research costs, accounting charges, review fees,
attorneys' fees, court costs, transcript costs, fees of experts, witness fees,
travel expenses, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees, and all other disbursements or actual
expenses of any kind incurred in connection with operating the First City Bank
Receiverships and in defending litigation, preparing to defend, investigating,
or being or preparing to be a witness in litigation.
4. SECURITY AGREEMENT
a. SECURITY INTEREST. FCLT Loans, L.P. hereby grants bargains,
sells, transfers and assigns to Indemnitee a security interest (the "Security
Interest") in and to the following Collateral (as defined herein).
b. COLLATERAL. The Security Interest granted hereby covers the
following collateral (the "Collateral"): A replenishable, interest bearing
account at FHLB-Chicago, payable to the FDIC, evidencing a deposit by FCLT
Loans L.P. in the original principal amount of two million dollars
($2,000,000.00) or the amount of the known litigation risk as determined in
FDIC's sole discretion at any time, whichever amount is greater (the "Secured
Amount"), payable to the order of FDIC.
(i) The FDIC shall have the absolute right to draw down the
Collateral, including any accrued interest, to reimburse the FDIC for payment
of any and all Indemnified Obligations or Outstanding Claims in accordance with
this Agreement as determined in FDIC's sole discretion.
(ii) The FDIC will give written notice and an accounting as
appropriate to FCLT Loans, L.P. of all amounts drawn from the Collateral or of
any increase of the known litigation risk, which notice will serve as written
demand for
3
<PAGE> 4
FCLT Loans, L.P. to deposit additional funds to the Collateral to bring the
account up to the Secured Amount.
(iii) Once FCLT Loans, L.P. has deposited an additional two million
dollars ($2,000,000) to the Collateral account pursuant to written notice from
the FDIC as set forth in subsection (ii) above, FCLT Loans, L.P. may request,
at its sole discretion and cost, a mediation to determine the reasonableness of
any new written notice and/or demand requiring a further deposit of more than
one hundred thousand dollars ($100,000). To activate its rights under this
subsection, FCLT Loans, L.P. must first give written notice to the FDIC
concurrent with its timely deposit of the disputed additional funds to the
Collateral account. Failure to timely make the required deposit will act to
nullify this subsection and trigger the Default provision of this Agreement. If
at mediation, it is agreed that FDIC's written notice and/or demand was
unreasonable under the terms of this Agreement, in whole or in part, then the
affected funds will be returned to FCLT Loans, L.P. with accrued interest.
c. FCLT LOANS L.P.'S WARRANTIES AND COVENANTS.
(i) Except for the Security Interest granted to the Indemnitee
pursuant to this Agreement, FCLT Loans, L.P. is the sole owner of the
Collateral, having title thereto, free and clear of any and all claims, liens,
mortgages, privileges, encumbrances, security interests or rights of others.
(ii) No security agreement, financing statement, statement of
assignment, mortgage, or equivalent security or lien instrument or continuation
statement covering all or any part of the Collateral is on file or of record in
any public office.
(iii) This Agreement constitutes and creates a valid and continuing
first lien on and first security interest in the Collateral in favor of the
Indemnitee, prior to all other liens, encumbrances, security interests,
privileges, statements of assignment and rights of others.
(iv) FCLT Loans, L.P. shall defend the Collateral against all claims
and demands of all persons at any time claiming the same or any interest
therein adverse to the Indemnitee.
(v) FCLT Loans, L.P. shall keep the Collateral free from liens,
privileges, statements of assignment, mortgages or other security interests
except for the Security Interest hereby granted. FCLT will not sell, pledge,
encumber or otherwise dispose or hypothecate the Collateral or any portion
thereof.
4
<PAGE> 5
d. DEFAULT. FCLT Loans, L.P. shall be in default under this Agreement
upon the happening of any of the following events or conditions:
(i) failure to comply with any of the provisions of this
Agreement, including, but not limited to, the payment of any subsequent
payments needed to replenish or increase the Collateral up to the then current
Secured Amount within five business days from receipt of written notice in
accordance with section 4 (b)(ii) above.
e. REMEDIES. When any event of default occurs and at any time
thereafter, the Indemnitee may liquidate the Collateral, including accrued
interest, keep any and all cash proceeds and take such other legal action as
may be necessary to enforce this Agreement.
f. GENERAL.
(i) TERMINATION. Assuming that the Secured Amount has not been
exhausted on the Termination Date (as hereinafter defined) then, and in that
case only, any remaining Security Interest evidenced hereby or provided for
herein shall terminate and the remaining Collateral, along with accrued
interest, if any, together with this Agreement shall be returned to FCLT Loans,
L.P.
(ii) WAIVER. No delay on the part of the Indemnitee in
exercising any power or right shall operate as a waiver thereof; nor shall any
single or partial exercise of any power or right preclude other or further
exercise thereof or the exercise of any power or right. No waiver by the
Indemnitee of any right hereunder or of any default by FCLT Loans, L.P. shall
be binding upon the Indemnitee unless in writing, and no failure by the
Indemnitee to exercise any right hereunder or waive of any default of FCLT
Loans, L.P. shall operate as a waiver of any other or further exercise of such
right or of any further default.
5. GENERAL
a. DURATION OF AGREEMENT. This Agreement shall continue until and
terminate upon March 31, 1999.
b. SEVERABILITY. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable for any reason
whatsoever; (i) the validity, legality and enforceability of the remaining
provisions of this Agreement (including, without limitation, each portion of
any section of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that is not
5
<PAGE> 6
itself invalid, illegal or unenforceable) shall not in any way be effected or
impaired thereby; and (ii) to the fullest extent possible, the provisions of
this Agreement (including, without limitation, each portion of any section of
this Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested thereby.
c. IDENTICAL COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall for all purposes be deemed to be an
original but all of which together shall constitute one and the same Agreement.
Only one such counterpart signed by the party against whom enforceability is
sought needs to be produced to evidence the existence of this Agreement.
d. HEADINGS. The headings of the paragraphs of this Agreements
are inserted for convenience only and shall not be deemed to constitute part of
or to effect the construction of this Agreement.
e. MODIFICATION AND WAIVER. This instrument contains the entire
agreement of the parties with respect to its subject matter. No supplement,
modification or amendment of this Agreement shall be binding unless executed in
writing by all of the parties to this Agreement. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of
any other provisions (whether or not similar) nor shall such waiver constitute a
continuing waiver.
f. PARTIES BOUND. The rights of the Indemnitee hereunder shall
inure to the benefit of its successors and assigns. The terms of this Agreement
shall be binding upon heirs, executors, administrators, successors, and assigns
of the parties hereto. All representations, warranties and agreements of FCLT
Loans, L.P. shall bind FCLT Loans, L.P.'s personal representatives, heirs,
successors and assigns.
g. NOTICE. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if (i) delivered by hand and receipted for by the party to whom said
notice or other communication shall have been directed, or (ii) mailed by
certified or registered mail with postage prepaid, on the third business day
after mailing:
6
<PAGE> 7
(1) If to Indemnitee, to:
Mr. G. Michael Newton
Regional Director
FDIC
5080 Spectrum, Suite 1000E
Dallas, Texas 75248
with a copy to:
Regional Counsel
FDIC Legal Division
5080 Spectrum Drive, Suite 1000E
Dallas, Texas 75248
(2) If to FCLT or FCLT Loans, L.P., to:
Mr. Robert W. Brown
President, FCLT Loans Asset Corp.
1021 Main, Suite 2600
Houston, Texas 77002
with a copy to:
G. Michael Curran
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
1700 Pacific Avenue, Suite 4100
Dallas, Texas 75201-4675
or to such other address as may have been furnished to Indemnitee by FCLT or
FCLT Loans, L.P. or to FCLT or FCLT Loans, L.P. by the Indemnitee, as the case
may be.
h. GOVERNING LAW. The parties agree that this Agreement shall be
governed by, and construed and enforced in accordance with the laws of the
United States of America, and to the extent such law is not applicable, with
the laws of the State of Texas.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
FEDERAL DEPOSIT INSURANCE CORPORATION,
in its corporate capacity
By: ROBERT CLARK by permission
/s/ STEPHEN PRUSS
-----------------------------------------
Stephen Pruss
Name: Robert Clark
---------------------------------------
Title: Senior Counsel
---------------------------------------
7
<PAGE> 8
FEDERAL DEPOSIT INSURANCE CORPORATION
in its capacity as the FDIC Receivers
By: /s/ THOMAS J. O'KEEFE, JR. 12/20/96
------------------------------------
Name: Thomas J. O'Keefe, Jr.
Title: Regional Manager (Operations)
FIRSTCITY LIQUIDATING TRUST
By: FLEET NATIONAL BANK, as Trustee
By: /s/ SUSAN T. KELLER
------------------------------------
Name: Susan T. Keller
Title: Vice President
FCLT Loans, L.P., a limited partnership
By: FCLT LOANS ASSET CORP.
its General Partner
By: /s/ ROBERT W. BROWN
------------------------------------
Name: Robert W. Brown
Title: President
8
<PAGE> 9
CONVEYANCE AND INDEMNIFICATION AGREEMENT
EXHIBIT A
1. First City - Beaumont
Kristine Myer litigation for alleged wrongful repossession of her
vehicle in July 1992.
2. First City - Corpus Christi
Potential environmental liability
3. First City - Forth Worth
Potential claim resulting from alleged misrepresentations that
caused account holder to convert bank account to mutual fund in
December 1992 (and resulting loss of value of the fund)
4. November '96 claim for $20,000 First City Cashier's check.
5. Any Depositor Claims.
<PAGE> 1
EXHIBIT 10.6
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT (this "Agreement"), made as of this ____ day
of ________________, 1997, but effective as of December 31, 1996, is by and
between FIRSTCITY FINANCIAL CORPORATION, a Delaware corporation (the
"Investment Manager"), THE FIRSTCITY LIQUIDATING TRUST, a trust organized under
the laws of Texas (the "Trust") and the Trust-Owned Affiliates signatory
hereto.
W I T N E S S E T H
WHEREAS, the parties have previously executed an Investment Management
Agreement dated as of July 3, 1995 (the "Investment Management Agreement"); and
WHEREAS, the parties desire to terminate the Investment Management
Agreement on the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the premises and of the covenants
and agreements herein set forth, and for other good, valuable and binding
consideration, the receipt and sufficiency of which are hereby acknowledged,
the Investment Manager, the Trust and the Trust-Owned Affiliates hereby
covenant and agree as follows:
1. TERMINATION. The Investment Management Agreement is hereby
terminated effective as of December 31, 1997; provided, however, Sections 1.8,
1.9, 1.11, 2.2, 2.3, 2.7, and 3.17 shall survive the termination of the
Investment Management Agreement, and such termination shall not affect any
directors' and officers' fidelity bonds or any claims made thereunder. All of
the rights, obligations and liabilities of the Investment Manager, the Trust
and the Trust- Owned Affiliates under the Investment Management Agreement
hereby terminate as of December 31, 1996, except those obligations and duties
of the Investment Manager, the Trust and the Trust-Owned Affiliates, which
shall survive termination of the Investment Management Agreement. All rights
and obligations of
TERMINATION AGREEMENT - PAGE 1
<PAGE> 2
the Investment Manager in the Custodial Agreement and the Tier 3 Custodial
Agreement, a part of the $100,000,000 Line of Credit Loan from Fleet National
Bank and NationsBank of Texas, N.A. to FCLT Loans, L.P., hereby terminate as of
March 31, 1997.
2. POST TERMINATION SERVICES. Notwithstanding anything to the
contrary herein, Investment Manager shall continue to provide the following
services following the termination of the Investment Management Agreement:
(a) coordinate the timely delivery of the quarterly
lock-box report prepared by the Lock-Box Agent for the quarter ended March 31,
1997;
(b) furnish to the Trust and the Trust-Owned Affiliates, a
report in reasonable detail summarizing the status of collection efforts for
the Non-cash Trust-Owned Affiliate Assets as of March 31, 1997, which report
shall contain a forecast of projected collections with respect to such Non-cash
Trust-Owned Affiliate Assets;
(c) provide to the Trust and the Trust-Owned Affiliates, in
such form and detail as the Trust and the Trust-Owned Affiliates may reasonably
request, lists of all Trust-Owned Affiliate Assets and any REO Properties,
specifying the location of such assets and the records pertaining thereto as of
March 31, 1997; and
(d) prepare monthly financial statements of the Trust for
the Portfolio Committee and the Trustee through March 31, 1997.
3. TRANSFER OF ACCOUNTS AND RECORDS. The Investment Manager
herewith irrevocably transfers, assigns and delivers to the Trust all of the
documents and accounts (including the Lock Box Account) relating to the
Trust-Owned Affiliate Assets in its possession, all Books and Records and all
of the Investment Manager's files and records pertaining to any such accounts
or the Trust-Owned Affiliates Assets, including all data tapes or disks
containing information on the Trust-
TERMINATION AGREEMENT - PAGE 2
<PAGE> 3
Owned Affiliate Assets (together with such conversions and other information as
is necessary to make beneficial use of same described), all as listed on
Schedule I hereto (collectively the "Management Accounts and Records"). The
Investment Manager hereby represents and warrants to the Trust that:
(a) the Management Accounts and Records constitute all of
the accounts and documents relating to the Trust-Owned Affiliate Assets in its
possession, all Books and Records and all of the Investment Manager's files and
records pertaining to the Trust-Owned Affiliate Assets, including all data
tapes or disks containing information on the Trust-Owned Affiliate Assets
(together with such conversions and other information as is necessary to make
beneficial use of same), of any character whatsoever, which are held by the
Investment Manager or any of his affiliates as of the date hereof;
(b) the Management Accounts and Records is the property of
the Trust and the Trust-Owned Affiliates and is free and clear of any lien,
claim or encumbrance; and
(c) the Investment Manager has not made any written or oral
agreement, understanding or arrangement with respect to the disposition of the
Management Accounts and Records, or any rights therein, in any manner other
than by this Agreement or as contemplated in the Investment Management
Agreement and it has all right, power and authority to enter into this
Agreement.
4. TRANSFER OF SERVICING. The Investment Manager shall provide
full assistance and cooperation to the Trust in the transfer of the servicing
of the remaining Trust-Owned Affiliate Assets to any successor investment
manager or to the parties designated by the Portfolio Committee of the Trust as
is necessary for such party to obtain useful possession of the foregoing.
TERMINATION AGREEMENT - PAGE 3
<PAGE> 4
5. ASSIGNMENT OF PROPERTY MANAGER CONTRACT. Investment Manager
hereby represents and warrants that set forth on Schedule II hereto is a list
of all contracts and agreements entered into with any Property Manager to
manage any REO Property (each a "Property Manager Contract"). Investment
Manager hereby assigns its rights and obligations under the Property Manager
Contracts to the Trust and represents and warrants that such rights and
obligations are fully assignable and that no default exists under any of the
Property Manager Contracts.
6. THIRD PARTY CONTRACTS. Investment Manager hereby represents and
warrants that all contracts related to services of third parties relating in
any way to the Trust-Owned Affiliate Assets are set forth on Schedule III.
Investment Manager hereby assigns its rights and obligations under such
contracts and represents and warrants that such rights and obligations are
fully assignable and that no default exists under any such contract.
7. CONSIDERATION FOR TERMINATION. In consideration of the
termination of the Investment Management Agreement, the Trust, simultaneously
with the execution hereof, has paid to the Investment Manager an amount equal
to Six Million Eight Hundred Thousand dollars and No cents ($6,800,000.00) plus
interest thereon at the rate of 10% per annum from January 1, 1997, until paid.
The Investment Manager hereby represents and warrants to the Trust that such
payment, taken together with all prior payments made to the Investment Manager
by the Trust, constitutes full and complete consideration for the termination
of the Investment Management Agreement and expected payment for all past and
future services rendered or to be rendered to the Trust by the Investment
Manager or any of its affiliates.
8. LITIGATION. The Investment Manager agrees to provide full
assistance and cooperation to the Trust and its affiliates in pursuing the
prosecution of actions and defense of claims which arose during the term of
this Agreement, including providing employees, agents and
TERMINATION AGREEMENT - PAGE 4
<PAGE> 5
representatives of the Investment Manager at depositions, trials and litigation
strategy meetings relating to the Trust- Owned Affiliate Assets they previously
managed.
9. MISCELLANEOUS.
(a) OTHER RELATIONSHIPS. This Agreement, pursuant to its
terms, shall terminate the Investment Management Agreement, but does not affect
any other contractual relationships between FCFC and FCLT and its affiliates,
including but not limited to the Cigna Indemnity from FCLT to FCFC, and any
other specific indemnity given by FCLT to FCFC relating to assets or rights of
FCLT or its subsidiaries.
(b) ASSIGNMENT. This Agreement and the rights and
obligations hereunder may not be assigned without the written consent of each
of the Trust, the Investment Manager and the Trust-Owned Affiliates, provided
however, that each of the Trust and Trust-Owned Affiliates may assign this
Agreement or its rights hereunder in whole, but not in part, to any entity with
or into which the Trust or Trust-Owned Affiliate, as the case may be, may
hereafter merge or consolidate or to which it may transfer all or substantially
all of its assets, if such entity shall by operation of law or expressly in
writing assume all liabilities of the Trust-Owned Affiliates or the Trust, as
the case may be hereunder.
(c) SEVERABILITY. If any provision of this Agreement, as
applied to any party or to any circumstances, shall be adjudged by a court to
be void or unenforceable, the same shall in no way affect any other provision
of this Agreement or the applicability of such provision to any other
circumstances.
(d) MODIFICATION AND TERMINATION. This Agreement may be
modified or terminated by mutual written agreement of the Investment Manager
and the Trust at any time or from
TERMINATION AGREEMENT - PAGE 5
<PAGE> 6
time to time, and not otherwise, and no consent of any other person (except the
Investment Manager and the Trust) shall be required for such modification or
termination.
(e) GOVERNING LAW. This Agreement shall be governed by the
internal laws of the State of Texas without resort to that state's conflict of
law rules.
(f) COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original.
(g) HEADINGS. The headings and captions appearing in this
Agreement are for convenient reference only and shall not be deemed to explain,
describe, limit or amplify the provisions hereof.
(h) DEFINITIONS. Capitalized terms used in this Agreement
and not otherwise defined herein shall have the meaning given thereto in the
Investment Management Agreement.
(i) NOTICES. Any notice, request or demand to or upon the
parties hereto must be given in writing. Notices shall be sent certified,
postage prepaid, shall be addressed to the party to receive the same as follows
or to such other address as may be hereafter designated in writing by the
respective parties hereafter designated in writing by the respective parties
hereto and shall be deemed given five (5) days after deposited in the United
States mail:
To the Investment Manager:
FirstCity Financial Corporation
P. O. Box 8216
Waco, Texas 76714-8216
Attention: James T. Sartain
To the Trust:
FirstCity Liquidating Trust
c/o Fleet National Bank, as Trustee
777 Main Street
Hartford, Connecticut 06115
Attention: Corporate Trust Administration (FirstCity
Liquidating Trust)
TERMINATION AGREEMENT - PAGE 6
<PAGE> 7
and a copy to:
FirstCity Liquidating Trust
1021 Main Street, Suite 250
Houston, Texas 77002
Attention: Robert W. Brown
with a copy to:
Akin, Gump, Strauss, Hauer & Feld
1700 Pacific Avenue, Suite 4100
Dallas, Texas 75201-4618
Attention: G. Michael Curran, P.C.
To the Portfolio Committee:
Rick R. Hagelstein
6400 Imperial Drive
Waco, Texas 76712
Robert W. Brown
1021 Main Street, Suite 250
Houston, Texas 77002
David Palmer
2817 Sancho Panza
Punta Gorda, Florida 33950
Richard E. Bean
5643 Lynbrook
Houston, Texas 77056
To FCLT REO One, L.P.:
FCLT REO One Asset group., General Partner
1021 Main Street, Suite 250
Houston, Texas 77002
Attention: Robert W. Brown, President
To FCLT REO Two, L.P.
FCLT REO Two Asset Corp., General Partner
1021 Main Street, Suite 250
Houston, Texas 77002
Attention: Robert W. Brown, President
TERMINATION AGREEMENT - PAGE 7
<PAGE> 8
To FCLT Loans, L.P.:
FCLT Loans Asset Corp., General Partner
1021 Main Street, Suite 250
Houston, Texas 77002
Attention: Robert W. Brown, President
Such addresses may be changed by written notice.
IN WITNESS WHEREOF, the Investment Manager and the Trust, have executed
this Agreement this ____ day of __________________, 1997, but effective as of
December 31, 1996.
FIRSTCITY FINANCIAL CORPORATION
By:
----------------------------
Name: Rick R. Hagelstein
Title: Executive Vice President
FIRSTCITY LIQUIDATING TRUST
By: FLEET NATIONAL BANK, as
Trustee
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
FCLT REO ONE, L.P.
By: FCLT REO One Asset Corp.,
General Partner
By:
----------------------------
Name: Robert W. Brown
--------------------------
Title: President
-------------------------
TERMINATION AGREEMENT - PAGE 8
<PAGE> 9
FCLT REO TWO, L.P.
By: FCLT REO Two Asset Corp.,
General Partner
By:
----------------------------
Name: Robert W. Brown
--------------------------
Title: President
-------------------------
FCLT LOANS, L.P.
By: FCLT Loans Asset Corp.,
General Partner
By:
----------------------------
Name: Robert W. Brown
--------------------------
Title: President
-------------------------
TERMINATION AGREEMENT - PAGE 9
<PAGE> 10
SCHEDULE I
MANAGEMENT ACCOUNTS AND RECORDS
TERMINATION AGREEMENT - PAGE 10
<PAGE> 11
SCHEDULE II
PROPERTY MANAGER CONTRACTS
TERMINATION AGREEMENT - PAGE 11
<PAGE> 12
SCHEDULE III
THIRD PARTY CONTRACTS
TERMINATION AGREEMENT - PAGE 12
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
FIRSTCITY LIQUIDATING TRUST DECEMBER 31, 1996 FORM 10-K FINANCIAL STATEMENTS AND
IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FIRSTCITY LIQUIDATING TRUST
DECEMBER 31, 1996 FORM 10-K.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> DEC-31-1996
<CASH> 36,129
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 89,100
<CURRENT-ASSETS> 0
<PP&E> 0
<DEPRECIATION> 0
<TOTAL-ASSETS> 125,229
<CURRENT-LIABILITIES> 3,912
<BONDS> 0
53,617
0
<COMMON> 0
<OTHER-SE> 67,700
<TOTAL-LIABILITY-AND-EQUITY> 125,229
<SALES> 52,219
<TOTAL-REVENUES> 53,014
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 12,924
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 325
<INCOME-PRETAX> 39,765
<INCOME-TAX> 0
<INCOME-CONTINUING> 39,765
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 39,765
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
</TABLE>
