<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------
SCHEDULE 13D
-----------------------------
Under the Securities Exchange Act of 1934
RAMTRON INTERNATIONAL CORPORATION
(Name of Issuer)
COMMON STOCK, PAR VALUE $.01 PER SHARE
(Title of Class of Securities)
75190710
(CUSIP Number)
Benton Liquidating Trust as defined in the Second
Amended Plan of Reorganization for the Jointly
Administered Debtors of CSI Enterprises, Inc., Energy
Fuels, Ltd., Oren Lee Benton, Energy Fuels Exploration
Company, Nuexco Trading Corporation and Energy Fuels
Mining Joint Venture, pending in the United States
Bankruptcy Court for the District of Colorado,
administered under Case No. 95-11642-CEM.
c/o David J. Beckman, Liquidating Trustee
Price Waterhouse LLP
200 East Randolph Drive, Suite 7600
Chicago, Illinois 60601
312/540-1500
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
August 31, 1997
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box [ ].
<PAGE> 2
<TABLE>
<S> <C> <C> <C>
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CUSIP Nos.: 75190710
SCHEDULE 13D Page 2 of 7
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1 NAME OF REPORTING PERSON
Benton Liquidating Trust as defined in the Second Amended Plan of Reorganization for the
Jointly Administered Debtors of CSI Enterprises, Inc., Energy Fuels, Ltd., Oren Lee
Benton, Energy Fuels Exploration Company, Nuexco Trading Corporation and Energy Fuels
Mining Joint Venture, pending in the United States Bankruptcy Court for the District of
Colorado, administered under Case No. 95-11642-CEM. (a)
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON:
- ------------------------------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
00
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Colorado
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NUMBER OF 7 SOLE VOTING POWER 2,069,130
SHARES --------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER 0
OWNED BY --------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER 2,069,130
REPORTING --------------------------------------------------------------------------------
PERSON 10 SHARED DISPOSITIVE POWER 0
WITH
- ------------------------------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,069,130
- ------------------------------------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
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13 PERCENTAGE OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 5.6%
- ------------------------------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
00
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</TABLE>
<PAGE> 3
ITEM 1. SECURITY AND ISSUER
This schedule relates to the common stock, par value $.01 per share (the
"Common Stock"), of Ramtron International Corporation, a Delaware corporation
("Ramtron"). The principal executive offices of Ramtron are located at 1850
Ramtron Drive, Colorado Springs, CO 80921.
ITEM 2. IDENTITY AND BACKGROUND
This Schedule 13D is being filed by the Benton Liquidating Trust as
defined in the Second Amended Plan of Reorganization (the "Plan") for the
Jointly Administered Debtors of CSI Enterprises, Inc., Energy Fuels, Ltd., Oren
Lee Benton, Energy Fuels Exploration Company, Nuexco Trading Corporation and
Energy Fuels Mining Joint Venture, pending in the United States Bankruptcy
Court for the District of Colorado, administered under Case No. 95-11642-CEM.,
a Colorado trust (the "Benton Liquidating Trust"), as the beneficial owner of
2,069,130 shares of Common Stock.
The United States Bankruptcy Court for the District of Colorado has
confirmed the Second Amended Plan of Reorganization for the Jointly
Administered Debtors of CSI Enterprises, Inc., Energy Fuels, Ltd., Oren Lee
Benton, Energy Fuels Exploration Company, Nuexco Trading Corporation and Energy
Fuels Mining Joint Venture, pending in the United States Bankruptcy Court for
the District of Colorado, administered under Case No. 95-11642-CEM (the
"Plan"). Pursuant to the Plan and as of August 31, 1997 (the "Effective
Date"), among other things, 2,069,130 shares of Common Stock in Ramtron have
been transferred to the Benton Liquidating Trust. The Plan annexed as Exhibit
2 and the Benton Liquidating Trust Agreement annexed as Exhibit 3 are
incorporated herein by reference.
The principal business of the Benton Liquidating Trust is to liquidate
assets for the benefit of holders of Allowed Claims, as defined in the Plan.
The principal business address and address of the principal office of the
Benton Liquidating Trust is David J. Beckman, Liquidating Trustee, c/o Price
Waterhouse LLP, 200 East Randolph Drive, Suite 7600, Chicago, IL 60601. The
beneficiaries of the Benton Liquidating Trust are listed on Exhibit 1 to this
Schedule 13D, subject to allowance of such entities' claims against the Debtor.
The name, citizenship, business address, and present principal occupation
of the Liquidating Trustee of the Benton Liquidating Trust are set forth on
Schedule I hereto and incorporated herein by reference.
Neither the Benton Liquidating Trust nor the Liquidating Trustee listed on
Schedule I during the last five years (a) has been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or (b) has
been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was or is subject to
a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to federal or state securities laws
or finding any violation with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Under the Plan, as described in Item 2, the Benton Liquidating Trust
became entitled to receive 2,069,130 shares of Common Stock in Ramtron.
Page 3 of 7
<PAGE> 4
ITEM 4. PURPOSE OF TRANSACTION
The Benton Liquidating Trust became entitled to receive 2,069,130 shares
of Common Stock in the manner described in Item 3 above. Except as described
below, the Benton Liquidating Trust has no plans or proposals that would result
in (1) the acquisition by any person of additional securities of Ramtron or the
disposition of securities of Ramtron; (2) an extraordinary corporate
transaction, such as a merger, reorganization or liquidation of Ramtron or any
of its subsidiaries; (3) a sale or transfer of a material amount of assets of
Ramtron or any of its subsidiaries; (4) any change in the present board of
directors or management of Ramtron, including any plans or proposals to change
the number or term of directors or to fill any existing vacancies on the board
of directors of Ramtron; (5) any material change in the present capitalization
or dividend policy of Ramtron; (6) any other material change in the business or
corporate structure of Ramtron; (7) changes in the charter, by-laws or
instruments corresponding thereto of Ramtron, or other actions which may impede
the acquisition of control of Ramtron by any person; (8) any class of
securities of Ramtron being delisted from a national securities exchange or
ceasing to be authorized to be quoted in an inter-dealer quotation system of a
registered national securities association; (9) any class of equity securities
of Ramtron becoming eligible for termination of registration pursuant to
Section 12(g)(4) of the Exchange Act; or (10) any action similar to any of
those enumerated above. The Benton Liquidating Trust, however, reserves its
right to change its plans or intentions at any time and to take any and all
actions that it deems appropriate to maximize the value of its investment
including, among other things, from time to time increasing or decreasing the
number of shares of Common Stock by acquiring additional shares, or by
disposing of all or a portion of the shares of Common Stock in open market or
privately negotiated transactions or otherwise, depending on existing market
conditions and other considerations discussed below. The Benton Liquidating
Trust intends to review its investment in Ramtron on a continuing basis and,
depending upon the price and availability of Common Stock, subsequent
developments affecting Ramtron, the general business and future prospects of
Ramtron, other investment and business opportunities available to the Benton
Liquidating Trust, general stock market and economic conditions, tax
considerations and other factors considered relevant, may decide at any time to
increase or decrease the size of its investment in Ramtron. Ultimately, the
Liquidating Trustee will distribute proceeds of the Common Stock to the
beneficiaries of the Benton Liquidating Trust.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) The Benton Liquidating Trust beneficially owns 2,069,130 shares of
Common Stock, which constitute approximately 5.6% of the 37,004,290 Common
Stock estimated to be outstanding as of the date of this Schedule 13D. Of the
2,069,130 shares of Common Stock 1,239,793 shares are subject to a lien in
favor of Westinghouse, Inc. and 703,317 shares are subject to a lien in favor
of Union Bank of Switzerland.
(b) The Benton Liquidating Trust, through its ownership of 2,069,130
shares of Common Stock, may be deemed to share the power to vote or direct the
vote and dispose or direct the disposition of 2,069,130 shares of Common Stock.
(c) During the past 60 days, the Benton Liquidating Trust has not effected
any transactions relating to the Common Stock, except as described in Item 3.
(d) Not applicable.
(e) Not applicable.
Page 4 of 7
<PAGE> 5
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER
The trustee for the Benton Liquidating Trust is also the trustee for the
NTC Liquidating Trust, an entity that owns 4,754,195 shares in Ramtron and is
the beneficial holder of Warrants for 2,961,216 shares of common stock in
Ramtron. Because the same trustee administers the Benton Liquidating Trust
and the NTC Liquidating Trust, the two trusts could be considered a group for
purposes of Section 13d. The Benton Liquidating Trust, however, disclaims that
it and the NTC Liquidating Trust are a group for purposes of Section 13d.
Of the 2,069,130 shares of Common Stock owned by the Benton Liquidating Trust,
1,239,793 shares are subject to a lien in favor of Westinghouse, Inc., and
703,317 shares are subject to a lien in favor of Union Bank of Switzerland,
each as described in the Plan (Exhibit 2) and the Benton Liquidating Trust
Agreement (Exhibit 3). The Benton Liquidating Trust does not have any
contract, arrangement, understanding, or relationship with any other person
with respect to any security of Ramtron, other than as described in this
Schedule 13D or in exhibits hereto.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit No. Description
- ----------- -----------
1. List of beneficiaries of the Benton Liquidating Trust
2. Second Amended Plan of Reorganization for the
Jointly Administered Debtors of CSI Enterprises,
Inc., Energy Fuels, Ltd., Oren Lee Benton, Energy
Fuels Exploration Company, Nuexco Trading
Corporation and Energy Fuels Mining Joint Venture,
pending in the United States Bankruptcy Court for
the District of Colorado, administered under Case
No. 95-11642-CEM (incorporated by reference to the
Schedule 13D filed by the NTC Liquidating Trust,
dated August 31, 1997).
3. Benton Liquidating Trust Agreement, as amended.
* * * * *
Page 5 of 7
<PAGE> 6
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Schedule 13D is true, complete
and correct.
Dated: October 8, 1997
Benton Liquidating Trust as defined in the
Second Amended Plan of Reorganization for
the Jointly Administered Debtors of CSI
Enterprises, Inc., Energy Fuels, Ltd., Oren
Lee Benton, Energy Fuels Exploration
Company, Nuexco Trading Corporation and
Energy Fuels Mining Joint Venture, pending
in the United States Bankruptcy Court for
the District of Colorado, administered
under Case No. 95-11642-CEM.
By: /s/ David J. Beckman
---------------------------------------
David J. Beckman, not individually, but
solely as Liquidating Trustee
Page 6 of 7
<PAGE> 7
SCHEDULE I
Certain Information Concerning the Benton Liquidating Trust
The person named below is not a beneficial owner of any Common Stock.
David J. Beckman, Liquidating Trustee
U.S. Citizen
c/o Price Waterhouse LLP
200 East Randolph Drive, Suite 7600
Chicago, Illinois 60601
312/540-1500
Mr. Beckman is a Principal of Price Waterhouse LLP.
Page 7 of 7
<PAGE> 1
Exhibit 99.1
Exhibit 1
BENEFICIARIES OF BENTON LIQUIDATING TRUST
BENTON TRUST BENEFICIARIES
--------------------------------
China Nuclear Energy Industry Corp.
P.O. Box 822
Al Yue Tan Bei Jie
Beijing 100037,
China
Colorado National Bank
918 17th Street
Denver, CO 80202
CoreStates Philadelphia National Bank
P.O. Box 7558
Philadelphia, PA 19109-7558
FBS Leasing
1st Bank Place
601 2nd Ave. South
Minneapolis, MN 55402-4302
<PAGE> 2
BENTON TRUST BENEFICIARIES
--------------------------------
FBS Mortgage
P.O. Box 64806
St. Paul, MN 55164
NationsBank Mortgage Corp.
P.O. Box 650520
Dallas, TX 75265
Kazahkstan Intertech Corporation
Dr. Matthew Grodowski
3 Commerce Drive
Suite 301
Atkinson, NY 03811
Nuclear Electric PLC
Barnett Way
Barnwood, Gloucester
GL4 7RS
United Kingdom
Washington Public Power Supply System
P.O. Box 2
Richland, WA 99352-0002
Westinghouse Electric Corporation
P.O. Box 73121
Chicago, IL 60673
-2-
<PAGE> 3
BENTON TRUST BENEFICIARIES
--------------------------------
Palabora Mining Co
Rio Tinto House
122 Pybus Road
2199 Sandton
South Africa
Technabexport (Tenex)
Att: Ludmila Zalimskaya
Staromonetnyi per. 26
109180 Moscow
Russia
Rocky Mountain Visa Gold
First Bank System/RMBC
P.O. Box 5400
Sioux Falls, SD 57117
Kay Aylin Meyer
P.O. Box 697
Camden, ME 04843
Harold C. Lindberg
15 Hardee Lane
Whispering Pines, NC 28327
-3-
<PAGE> 4
BENTON TRUST BENEFICIARIES
--------------------------------
Robert Alexander
B M I
5411 Beaumont Center Blvd.
Suite 740
Tampa, FL 33634
Vostokredmet Kombinat
c/o Suzanne M. Rogers
240 Josephine Street, Suite 204
Denver, CO 80206
American Express
c/o Becket & Watkins
P.O. Box 3001, Dept. U
Malvern, PA 19355-0701
Charles H. Peterson
8407 River Rock Terrace
Bethesda, MD 20817
Donald P. Ebright
Zurichstrasse 135
8700 Kusnacht - Zurich
Switzerland
Thomas B. Foster
The Cascades Building
6300 S. Syracuse Way, Suite 210
Englewood, CO 80111
Donald W. Radcliffe
207 Kirk Ave.
Ypsilanti, MI 48197
Grand County Treasurer
Christina Whitmer
P.O. Box 288
Hot Sulpher Springs, CO 80451
First Bank System/RMBC
P.O. Box 5400
Sioux Falls, SD 57117
-4-
<PAGE> 5
BENTON TRUST BENEFICIARIES
--------------------------------
M.D. Vincelette
Vostokredmet Kombinat
c/o Suzanne M. Rogers
240 Josephine Street, Suite 204
Denver, CO 80206
James J. Lightner
c/o Lightner & Castro
3104 Fourth Ave.
San Diego, CA 92103
Ralph O. Smith
141 Braemar Drive
Cheshire, CT 06410
Marie-Helene Levine
c/o Michael L. Gilbert, Esq.
50 S. Steele St., #480
Denver, CO 80209
Clark M. Beyer
1600 N. Oak Street, #1710
Arlington, VA 22209
Mr. Hans Vogt
c/o Nuexco Exchange AG
Leberngasse 15
4603 Olten
Switzerland
Alan A. Kennedy
10150 Arapahoe
LaFayette, CO 80026
Miller & Chevalier
655 Fifteenth St., N.W., Suite 900
Washington, DC 20005
-5-
<PAGE> 6
BENTON TRUST BENEFICIARIES
--------------------------------
KB Aktiengesellschaft Fuer
Kernbrennstoffe (KKL)
c/o Elektrizitaets-Gesellschaft
Laufenburg AG
CH08022 Zurich
Switzerland
Palabora Mining Company Limited
c/o Alfred S. Lurey, Esq.
1100 Peachtree Street, N.E., Suite 2800
Atlanta, GA 30309-4530
John R. Adams
Thomas C. Seawell
1560 Broadway, Suite 1500
Denver, CO 80202
Faegre & Benson, P.L.L.P.
c/o Michael S. McCarthy
370 17th St., Suite 2500
Denver, CO 80202-4004
Kernkraftwerk Goagen-Daniken
AG (KKG)
Postfach 64
CH-4658 Daniken
Switzerland
James K. Sandison
2616 East 3rd
Casper, Wyoming 82609
Internal Revenue Service
600 17th St.
Stop 5028 DEN
Denver, CO 80202-2490
Kathryn B. Robertson
53 Kennedy Parkway
Iowa City, IA 52246
-6-
<PAGE> 7
BENTON TRUST BENEFICIARIES
--------------------------------
Life Insurance Co. of Georgia
c/o Brian L. Schleicher, Esq.
Kilpatrick & Cody
1100 Peachtree St., Suite 2800
Atlanta, GA 30309-4530
Columbine Life Insurance Co.
c/o Brian L. Schleicher, Esq.
Kilpatrick & Cody
1100 Peachtree St., Suite 2800
Atlanta, GA 30309-4530
Irwin W. Mathisen
c/o Bailey, Harring & Peterson, PC
1660 Lincoln St, Suite 3175
Denver, CO 80264
Brad L. Doores
c/o Bailey, Harring & Peterson, PC
1660 Lincoln St., Suite 3175
Denver, CO 80264
Patrick D. Hillard
c/o Bailey, Harring & Peterson, PC
1660 Lincoln St., Suite 3175
Denver, CO 80264
William L. Rhoadarmer
c/o Bailey, Harring & Peterson, PC
1660 Lincoln St., Suite 3175
Denver, CO 80264
Rick L. Townley
c/o Bailey, Harring & Peterson, PC
1660 Lincoln St., Suite 3175
Denver, CO 80264
Christopher M.T. Thompson
c/o Bailey, Harring & Peterson, PC
1660 Lincoln St., Suite 3175
Denver, CO 80264
-7-
<PAGE> 8
BENTON TRUST BENEFICIARIES
--------------------------------
Judy M. Pratt
c/o Bailey, Harring & Peterson, PC
1660 Lincoln St., Suite 3175
Denver, CO 80264
Nordostschweizerische Karftwerke
AG (NOK)
Parkstrasse 23
Baden CH-5400
Switzerland
Robert Fillingham
c/o Cohen Brame & Smith
1800 Norwest Center
1700 Lincoln St.
Denver, CO 80203
Racom Systems, Inc.
6080 Greenwood Plaza Blvd.
Englewood, CO 80111
James E. Vaughan
430 Chemin des Hautins 3
F 01280 Prevessin
France
Concord Employee Savings
c/o CSI Enterprises, Inc.
Three Park Central, Suite 900
1515 Arapahoe St.
Denver, CO 80202
Robert H. Porter
400 S. Steele St., #71
Denver, CO 80209
Edward M. Gabriel
3417 1/2 P St. N.W.
Washington, DC 20007
-8-
<PAGE> 9
BENTON TRUST BENEFICIARIES
--------------------------------
Charles H. Peterson
Stephen W. Seifert
Fairfield and Woods, P.C.
1700 Lincoln, #2400
Denver, CO 80203-4524
Sophia Barter
c/o Stephen W. Seifert
Fairfield and Woods, P.C.
1700 Lincoln, #2400
Denver, CO 80203-4524
John R. Barter
c/o Stephen W. Seifert
Fairfield and Woods, P.C.
1700 Lincoln, #2400
Denver, CO 80203-4524
Leo Rostermundt
c/o Stephen W. Seifert
Fairfield and Woods, P.C.
1700 Lincoln, #2400
Denver, CO 80203-4524
Intertech Corporation
Weiman, Cohen & Niebrugge, P.C.
1600 Stout St., 1300
Denver, CO 80202
-9-
<PAGE> 10
BENTON TRUST BENEFICIARIES
--------------------------------
George J. Stathakis
One Bush St., 6th Floor
San Francisco, CA 94104
Colorado Baseball Partnership 1993, Ltd
c/o Faegre & Benson
2500 Republic Plaza
370 Seventeenth St.
Denver, CO 80202-4004
Gerry L. Murdock
c/o Robinson, Waters, O'Dorisio
1099 Eighteenth St., Suite 2600
Denver, CO 80202
Attn: Stephen L. Waters, Esq.
Richard C. Jennewine
17053 East Jamison Ave.
Aurora, CO 80016
James E. Lewis
475 17th St., Suite 790
Denver, CO 80202
Jerry D. McMorris
c/o Faegre & Benson
2500 Republic Plaza
370 Seventeenth St.
Denver, CO 80202-4004
-10-
<PAGE> 11
BENTON TRUST BENEFICIARIES
--------------------------------
Daniel K. Newell
33 Third Street S.E., Suite 400
Huron, SD 57350
Fredrick J. Boyne
6005 S. Chester Way
Englewood, CO 80111
Raymond G. Larson
1063 Red Oaks Loop N.E.
Albuquerque, NM 87122
Uranium Resources, Inc.
Marc D. Flink c/o Alfred C. Chidester
303 E. 17th Ave, #1100
Denver, CO 80203
Charles K. Monfort
Walker Miller, Esq.
822 - 7th St., Suite 760
Greeley, CO 80631
Robert C. Saffell
31076 Shawnee Lane
Evergreen, CO 80439
Dennis R. Saffell
P.O. Box 25
Winter Park, CO 80482
Colorado Department of Revenue
Tax Auditing & Compliance Div.
1375 Sherman St., Room 504
Denver, CO 80261
Union Bank of Switzerland
Attn: G. Christian Ullrich
299 Park Avenue
New York, NY 10171
-11-
<PAGE> 12
BENTON TRUST BENEFICIARIES
--------------------------------
Karelia Investments Limited, a
British Virgin Islands Corp
c/o A. Bruce Campbell
950 17th St., Suite 1600
Denver, CO 80202
Robert Fillingham
c/o Cohen Brame & Smith
1800 Norwest Center
1700 Lincoln St
Denver, CO 80203
British Nuclear Fuels Plc
c/o S. Perry Thomas, Jr.
999 Peachtree St., N.E.
Atlanta, GA 30309-3996
Irwin W. Mathisen
c/o Bailey, Harring & Peterson, P.C.
1600 Lincoln St., Suite 3175
Denver, CO 80264
Robert L. Bovey
2603 Valley Dr.
Alexandria, VA 22302
Professional Bank
Attn: Everett S. Covington
4100 E. Mississippi Ave.
Denver, CO 80222
Pinemeadows, Ltd.
Three Park Central, Suite 900
1515 Arapahoe Street
Denver, CO 80202
Premier Management, Ltd.
Three Park Central, Suite 900
1515 Arapahoe Street
Denver, CO 80202
-12-
<PAGE> 13
BENTON TRUST BENEFICIARIES
--------------------------------
Energy Fuels Nuclear, Inc.
Rick L. Townley
1515 Arapahoe Street, Suite 900
Denver, CO 80202
JRA Enterprises, LTD.
c/o Energy Fuels Nuclear, Inc.
1515 Arapahoe Street, Suite 900
Denver, CO 80202
Albuquerque Uranium Corporation
Three Park Central, Suite 900
1515 Arapahoe Street
Denver, CO 80202
Intercontinental Energy Corp.
Three Park Central, Suite 900
1515 Arapahoe Street
Denver, CO 80202
Energy Fuels Transportation Company
Three Park Central, Suite 900
1515 Arapahoe Street
Denver, CO 80202
Energy Fuels, Ltd.
Three Park Central, Suite 900
1515 Arapahoe Street
Denver, CO 80202
Energy Fuels Exploration Company
Three Park Central, Suite 900
1515 Arapahoe Street
Denver, CO 80202
Concord Resources CIS, Ltd.
Concord Employee Savings
c/o CSI Enterprises, Inc.
Three Park Central, Suite 900
1515 Arapahoe Street
Denver, CO 80202
-13-
<PAGE> 14
BENTON TRUST BENEFICIARIES
--------------------------------
Concord Resources, S.A. (ARG)
Three Park Central, Suite 900
1515 Arapahoe Street
Denver, CO 80202
Concord Resources PTY., Ltd. (AUS)
Three Park Central, Suite 900
1515 Arapahoe Street
Denver, CO 80202
Concord Resources, Ltd (U.K.)
Three Park Central, Suite 900
1515 Arapahoe Street
Denver, CO 80202
Concord Resources, Ltd. (H.K.)
Three Park Central, Suite 900
1515 Arapahoe Street
Denver, CO 80202
Nuexco, A Nevada Corporation
Three Park Central, Suite 900
1515 Arapahoe Street
Denver, CO 80202
Nuexco International Corporation
Three Park Central, Suite 900
1515 Arapahoe Street
Denver, CO 80202
Concord-Nuexco International Corp.
Three Park Central, Suite 900
1515 Arapahoe Street
Denver, CO 80202
Concord-Centurion Finance Ltd.
Three Park Central, Suite 900
1515 Arapahoe Street
Denver, CO 80202
Skyline Holdings, Inc.
Three Park Central, Suite 900
1515 Arapahoe Street
Denver, CO 80202
-14-
<PAGE> 15
BENTON TRUST BENEFICIARIES
--------------------------------
CSI Enterprises, Inc.
Three Park Central, Suite 900
1515 Arapahoe Street
Denver, CO 80202
Skyline Partners 1993, L.P.
Three Park Central, Suite 900
1515 Arapahoe Street
Denver, CO 80202
CLC Holdings Corp./fka First Concord
Acceptance Corp.
Three Park Central, Suite 900
1515 Arapahoe Street
Denver, CO 80202
Concord International Mining
& Mgmt. Corp.
Three Park Central, Suite 900
1515 Arapahoe Street
Denver, CO 80202
Nuclear Trading & Development, Inc.
Three Park Central, Suite 900
1515 Arapahoe Street
Denver, CO 80202
Bruce H. Butterwick
c/o Nancy D. Miller, P.C.
1600 Broadway, Suite 2312
Denver, CO 80202
Walbrook Trustees (Jersey) Ltd.
P.O. Box 248
Laco Coutanche House
66/68 Esplanade, St. Helier
Jersey, Channel Islands
AA0153A-339AA
Fredrick J. Boyne
1132 Sugarbush Lane
Waconia, MN 55387
-15-
<PAGE> 16
BENTON TRUST BENEFICIARIES
--------------------------------
Eugenia Turkuli
13907 E. Utah Circle
Aurora, CO 80012
McDermott, Will & Emery
Attn: Carl Lowry, Esq.
227 West Monroe
Chicago, IL 60606-5096
Salim Investments, Ltd.
c/o William G. Horlbeck, P.C.
518 17th Street, Suite 950
Denver, CO 80202
O.J.C. Runnalls
170 Lytton Blvd.
Toronto, Ontario M4R 1L4
Canada
LT Womack
[no address available]
PAMCO Ltd.
[no address available]
Albert Williamson
[no address available]
-16-
<PAGE> 1
Exhibit 99.3
BENTON LIQUIDATING TRUST AGREEMENT
This Benton Liquidating Trust Agreement ("Trust Agreement") is entered
into as of August 29, 1997, between Oren Lee Benton (the "Debtor") and David J.
Beckman, ("Liquidating Trustee").
RECITALS
a. On February 23, 1995, the Debtor filed a petition for reorganization
under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court
for the District of Colorado, which case is jointly administered under Case No.
95-11642-CEM.
b. On February 21, 1997, the Official Creditors' Committee of CSI
Enterprises, Inc. and Jointly-Administered Debtor (the "Committee") as
Proponent and Oren L. Benton, as Co-Proponent, filed a Modified First Amended
Plan of Reorganization for the Jointly Administered Debtor (the "Plan"). The
Bankruptcy Court entered its Confirmation Order confirming the Plan on August
18, 1997.
c. The Plan provides for the creation of a Liquidating Trust to hold the
Debtor's Assets (except as may otherwise be provided under the Plan), in trust
for the benefit of all Holders of Allowed Claims pursuant to the terms of the
Plan and this Trust Agreement. This Trust Agreement is executed in order to
establish the Liquidating Trust and to facilitate implementation of the Plan.
ARTICLE I.
DEFINITIONS
1.1 TERMS DEFINED HEREIN. As used in this Trust Agreement, all
capitalized terms defined herein shall have the meanings attributed to them as
set forth herein.
1.2 BENEFICIARIES shall mean all Holders of Allowed Claims.
1.3 OTHER DEFINED TERMS. Terms defined in the Plan, and not otherwise
specifically defined herein, shall, when used herein, have the meanings
attributed to them in the Plan. Terms defined in the Bankruptcy Code, and not
otherwise specifically defined in the Plan or herein, shall, when used herein,
have the meanings attributed to them in the Bankruptcy Code.
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ARTICLE II.
CREATION OF LIQUIDATING TRUST
2.1 DECLARATION OF TRUST. For good and valuable consideration, the
receipt whereof is hereby acknowledged by the undersigned, and pursuant to the
terms of the Plan, the Debtor executes this Trust Agreement and, subject to the
provisions of Section 2.2 below, irrevocably transfers, absolutely assigns,
conveys, sets over, and delivers to the Liquidating Trustee, and his successors
and assigns, all right, title and interest of the Debtor in and to the Assets
in trust to and for the benefit of the Beneficiaries for the uses and purposes
stated herein and in the Plan, except as may otherwise be specifically provided
by the Plan.
2.2 TRANSFER OF ASSETS. Transfer of the Debtor's Assets to the
Liquidating Trust pursuant to and in accordance with the Plan, shall be deemed
a transfer to and for the benefit of the Beneficiaries followed by a deemed
transfer by the Beneficiaries to the Liquidating Trust to hold in trust for the
benefit of the Beneficiaries, except as otherwise provided in the Plan or this
Trust Agreement. The Beneficiaries shall be treated as the grantors and deemed
owners of the Liquidating Trust. Except as otherwise provided by the Plan or
this Trust Agreement, upon the Effective Date of the Plan, title to the Assets
shall pass to the Liquidating Trust free and clear of all Claims and Interests,
in accordance with Section 1141 of the Bankruptcy Code, except for Liens on the
Assets held by Holders of Allowed Secured Claims (including Claims which become
Allowed Claims after the Effective Date). The Liquidating Trustee shall cause
a valuation to be made of the Assets and that valuation shall be used by the
Liquidating Trustee and the Beneficiaries for all federal income tax purposes
but shall not be binding on the Liquidating Trustee in regards to the
liquidation of the Assets. The Liquidating Trust shall not be permitted to
receive or retain cash or cash equivalents in excess of a reasonable amount to
meet Distributions and establish the reserves as provided herein and the Plan
or to maintain the value of the Assets during liquidation.
2.3 PURPOSE OF LIQUIDATING TRUST. The Liquidating Trust is created to
serve as a vehicle for the maintenance and preservation of the Assets for the
primary purpose of liquidating the Assets, with no objective to continue or
engage in the conduct of a trade or business, except to the extent reasonably
necessary to, and consistent with, the liquidating purpose of the Liquidating
Trust. In selling the Assets, or otherwise monetizing them, the Liquidating
Trustee shall use his best efforts, within a reasonable time frame, to maximize
the amount of Liquidation Proceeds derived therefrom.
2.4 OVERSIGHT COMMITTEE. As provided in the Plan, an Oversight Committee
shall be established and shall have the authority and responsibility to
supervise and review the activities and performance of the Liquidating
Trustee, and shall have the authority to remove and replace the Liquidating
Trustee pursuant to this Trust Agreement and the Plan. The Oversight Committee
shall have such further authority as may be specifically granted or necessarily
implied by the Plan. The Liquidating Trustee shall seek to accomplish the sale
or monetization of the Assets within a reasonable period of time to avoid undue
delay in Distribution to the Beneficiaries. The Liquidating Trustee shall
consult with the Oversight Committee on an ongoing basis to develop strategies
for Asset disposition.
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ARTICLE III.
LIQUIDATING TRUSTEE ACCEPTANCE
3.1 ACCEPTANCE OF LIQUIDATING TRUST. The Liquidating Trustee accepts the
Liquidating Trust imposed by this Trust Agreement and the Plan, and agrees to
perform upon and subject to the terms and conditions set forth herein and in
the Plan.
3.2 NAME OF TRUST. The Liquidating Trust established hereby shall bear
the name "Benton Liquidating Trust". In connection with the exercise of his
powers, authorities and duties as Liquidating Trustee, the Liquidating Trustee
may use such name or such variation thereon as he sees fit, or may use his own
name, as Liquidating Trustee.
ARTICLE IV.
RIGHTS, POWERS AND DUTIES OF LIQUIDATING TRUSTEE
4.1 STATUS OF LIQUIDATING TRUSTEE. On the Effective Date of the Plan, the
Liquidating Trustee shall be the representative of the Estates as that term is
used in 11 U.S.C. Section 1123(b)(3)(B) and shall have the rights and powers
provided for in the Bankruptcy Code in addition to any rights and powers
granted in this Trust Agreement and in the Plan. The Liquidating Trustee shall
be the successor-in-interest to the Debtor and the Committee with respect to
any Avoidance Action or any other Action commenced by the Debtor or the
Committee prior to the Confirmation Date and shall be deemed substituted for
the same as the party in such litigation. All such Avoidance Actions, Actions,
and other actions and any and all other claims, rights or interests
constituting Assets, shall be preserved, retained and enforced by the
Liquidating Trustee as the representative of the Estates pursuant to 11 U.S.C.
Section 1123(b)(3)(B). The Liquidating Trustee shall be a party-in-interest
as to all matters over which the Court has jurisdiction.
4.2 AUTHORITY. Subject to any limitations contained in, or as otherwise
provided by, this Trust Agreement or in the Plan, the Liquidating Trustee shall
have the following powers, authorities and duties, by way of the illustration
and not of limitation:
(a) Manage, sell and convert all or any portion of the Assets
to Cash and distribute the Net Distributable Proceeds as
specified in the Plan;
(b) Release, convey or assign any right, title or interest in
or about the Assets or any portion thereof;
(c) Pay and discharge any costs, expenses, professional fees
or obligations deemed necessary to preserve or enhance the value
of the Assets, discharge duties under the Plan or perform the
purpose of the Plan and this Trust Agreement;
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(d) Open and maintain bank accounts and deposit funds, draw
checks and make disbursements in accordance with the Plan and
this Trust Agreement;
(e) Except as otherwise provided in the Plan and this Trust
Agreement, engage and have such attorneys, accountants,
engineers, agents, tax specialists, financial advisors,
appraisers, investment bankers, other professionals, and
clerical and stenographic assistance as may, in the discretion
of the Liquidating Trustee, be deemed necessary;
(f) Sue and be sued and file or pursue objections to Claims;
(g) Enforce, waive or release rights, privileges or immunities
of any kind;
(h) Vote any share or shares of stock and otherwise exercise
the rights appurtenant to ownership of such stock;
(i) In general, without in any manner limiting any of the
foregoing, or the following, deal with the Assets or any part or
parts thereof in all other ways as would be lawful for any
person owning the same to deal therewith, provided, however,
that the investment powers of the Liquidating Trustee, other
than those reasonably necessary to maintain the value of the
assets of the Liquidating Trust and to further the liquidating
purpose of the trust, are limited to the power to invest in
demand and time deposits, such as short-term certificates of
deposit, in banks and other savings institutions, or other
temporary, liquid investments, such as United States Treasury
Bills;
(j) Institute or continue litigation, including Avoidance
Actions, which were or otherwise could have been brought by the
Debtor or Creditors' Committee on behalf of the Estate, and
prosecute or defend all litigation or appeals on behalf of the
Estate and, when appropriate, settle such actions and claims
with the approval of the Court after hearing on notice, provided
that without the prior consent of the Oversight Committee, the
Liquidating Trustee shall not enter into any settlement of any
Claim that results in an Allowed Claim of $100,000 or more;
(k) Obtain and pay for insurance coverage relative to the
proper performance of his duties under the Plan and this Trust
Agreement, and to indemnification for himself and others
provided for in the Plan, and this Trust Agreement;
(l) At the appropriate time, ask the Court to enter the Final
Decree; and
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(m) Without limitation, do any and all things necessary to
accomplish the purposes of the Plan and this Trust Agreement.
4.3 SEPARATE TRUST FUNDS. After giving effect to the provisions of
Section 6.1 of the Plan, the Assets for each Debtor Estate shall be held by the
Liquidating Trustee in separate and segregated Trust Funds for the benefit of
the Creditors of such Debtor, all of which in the aggregate constitute the
Liquidating Trust.
4.4 EXPENSES. The Liquidating Trustee is authorized to pay obligations or
expenses of, or relating to, the Assets, or to Claims against the Estate, only
when the Liquidating Trustee, in his reasonable discretion, deems it to be in
the best interests of the Holders of Allowed General Unsecured Claims or
necessary to effectuate the Plan. Expenses and Claims shall be paid only by
the Trust Fund which incurred the expense or liability. In the event the
expense or liability cannot be clearly allocated to one Trust Fund, the
Liquidating Trustee, in consultation with the Oversight Committee, shall make
an equitable allocation including such allocation to, or on behalf of the
Energy Fuels Trust Funds as is appropriate.
4.5 PAYMENT OF ENERGY FUELS SUBSIDIARY CREDITOR CLAIMS. Prior to making
any Distribution, or payments to Holders of Administrative Claims, the
Liquidating Trustee shall pay all Energy Fuels Subsidiary Creditor Claims,
unless such Claim was assumed by the Purchaser and/or constitutes a Permitted
Encumbrance under the Plan. In the exercise of reasonable business judgement,
the Liquidating Trustee may also establish the Energy Fuels Subsidiary Creditor
Reserve; provided, however, that nothing in the Plan or this Trust Agreement
shall prevent the Liquidating Trustee from seeking an order from the Court,
after Notice and Hearing, approving the amount of the Energy Fuels Subsidiary
Creditors Reserve after which all rights of Energy Fuels Subsidiary Creditors
shall be limited solely against such reserve in accordance with the Plan.
4.6 DISTRIBUTIONS. The Liquidating Trustee shall make Distributions
pursuant to and in accordance with the Plan. The Liquidating Trustee may
affect such Distributions by causing one or more of Debtor's Affiliates to make
such Distributions directly to the Beneficiaries, if the Liquidating Trustee
deems such approach to be in the best interest of Creditors.
4.7 STATEMENTS. The Liquidating Trustee shall deliver each member of the
Oversight Committee a statement within ten (10) Business Days after the end of
each calendar quarter showing (i) all receipts and disbursements of the
Liquidating Trust (including each of the Reserves) during such quarter, and
(ii) the amount of (A) Available Cash and (B) each of the Reserves, in each
case at the beginning and end of such quarter, such statement to be certified
by the Liquidating Trustee as being true and accurate in all material respects.
To the extent practical, the statements shall provide separate information for
each Trust Fund.
4.8 TAX RETURNS/TAX MATTERS.
(a) The Liquidating Trustee shall file all tax returns and
other filing with governmental authorities on behalf of the
Liquidating Trust and the assets
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it holds, including tax returns for the Liquidating Trust as a
grantor trust pursuant to Section 1.671-4(a) of the United
States Income Tax Regulations. The Liquidating Trustee shall
provide such information to the Beneficiaries as will enable
them to properly file their separate tax returns and withhold
and pay over any amounts required by tax law.
(b) The Liquidating Trustee is authorized to act as agent for
the Estate in withholding or paying over any amounts required by
law (including tax law) to be withheld or paid by the Estate in
connection with the transfer and assignment of the Assets to the
Liquidating Trust pursuant to the Plan.
(c) Except as otherwise set forth in this Trust Agreement or
the Plan, any items of income, deduction, credit, or loss of the
Trust shall be allocated for federal income tax purposes among
the Beneficiaries pro rata on the basis of their beneficial
interests; provided, however, that to the extent that any item
of income cannot be allocated in the taxable year in which it
arises, the Trust shall pay the federal, state and local taxes
attributable to such income (net of related deductions) and the
amount of such taxes shall be treated as having been received
by, and paid on behalf of the Beneficiaries when such
allocations are made.
4.9 ENGAGEMENT OF PROFESSIONALS. The Liquidating Trustee shall obtain the
approval of the Oversight Committee prior to retention and engagement of any
professional. Such approval shall not be unreasonably delayed or withheld.
The fees and expenses of such professionals shall be paid from the Operating
Reserve as provided in the Plan.
4.10 ESTABLISHMENT OF RESERVES. The Liquidating Trustee shall establish,
on the Effective Date of the Plan, or as soon thereafter as is practicable, out
of the Effective Date Cash, the Operating Reserve, the Professional Fee
Application Reserve, and the Disputed Senior Claims Reserve in accordance with
and pursuant to the terms of the Plan. The Liquidating Trustee may also
establish the Energy Fuels Subsidiary Creditor Reserve pursuant to and in
accordance with the Plan.
4.11 WITHHOLDING TAXES. The Liquidating Trustee shall be entitled to
deduct any federal or state withholding taxes from any payments made with
respect to Allowed Claims, as appropriate, and shall otherwise comply with
Section 346 of the Bankruptcy Code.
4.12 RESOLVING DISPUTED CLAIMS. After the Effective Date, objections
to Claims shall be made, and objections to Claims made previous thereto shall
be pursued, only by the Liquidating Trustee, in consultation with the Oversight
Committee in accordance with and pursuant to the terms of the Plan. Any
objections made by the Liquidating Trustee shall be served and filed not later
than 180 days after the Effective Date of the Plan; provided that, such period
may be extended by order of the Court for good cause shown. After the
Effective Date, the Liquidating Trustee, with the approval of the Oversight
Committee, may settle any Class 4 Claim where the proposed Allowed Amount is to
be less than $100,000 without Notice and a
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Hearing and without an order of the Court. All other settlements shall be
subject to Notice and a Hearing and a Final Order of the Court approving the
settlement. Ten days notice (plus three days if service is made by first class
mail) shall be adequate for any Claims settlement.
4.13 ABANDONMENT. With the prior consent of the Oversight Committee, and
pursuant to the Plan, the Liquidating Trustee may abandon, on notice to such
parties as are entitled to the same, any property which he determines in his
reasonable discretion to be of de minimis value to the Liquidating Trust,
including any pending adversary proceeding or other legal action commenced or
commenceable by the Liquidating Trust.
4.14 APPOINTMENT AS ATTORNEY-IN-FACT. To assure that all instruments of
transfer and other documents are duly executed on behalf of the Estate, in the
event the Debtor fails to cooperate, the Liquidating Trustee shall, on the
Effective Date of the Plan, be deemed by operation of law and the Confirmation
Order and without the need for any action by Benton or any other person
affiliated with the Debtor or any officer or director of such Persons or
Entities, to hold an irrevocable power-of-attorney on behalf of the Estate with
respect to the Estate and all Assets therein.
4.15 EXECUTORY CONTRACTS AND UNEXPIRED LEASES. The Liquidating Trustee
shall assume, assume and assign, or reject executory contracts and unexpired
leases, including but not limited to the Uranium Contracts, pursuant to and in
accordance with the Plan.
4.16 CORPORATE OFFICERS. For any Affiliate, other than an individual,
which is controlled by a Debtor and which is not a Debtor, the officers,
directors, or other persons with authority to act on behalf thereof shall,
pursuant to the Plan, continue on and after the Effective Date to hold such
office and to exercise such authority; provided that the Liquidating Trustee
may terminate such officers, directors, or other Persons with authority in his
sole discretion and may designate others to fill such positions and exercise
all authority on behalf of such Affiliate.
4.17 FURTHER AUTHORIZATION. The Liquidating Trustee and the Oversight
Committee shall be entitled to seek such orders, judgements, injunctions and
rulings as they deem necessary to carry out the intentions and purposes, and to
give full effect to the provisions, of the Plan and this Trust Agreement.
4.18 PREPARATION OF ESTATE RETURNS. Pursuant to and in accordance
with the Plan, the Liquidating Trustee shall be responsible for all tax matters
of the Estate, including, but not limited to, the filing of all tax returns and
other filing with governmental authorities on behalf of the Estate for time
periods ending on or before the Final Tax Day, the filing of determination
requests under Section 505(b) of the Bankruptcy Code, and responding to any tax
audits of the Estate.
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ARTICLE V.
THE LIQUIDATING TRUSTEE
5.1 GENERAL INDEMNIFICATION. The Liquidating Trust shall indemnify and
hold harmless any Person or Entity who was, or is, a party, or is threatened to
be made a party, to any pending or contemplated action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that such Person or Entity is or was the Liquidating Trustee or a member of the
Oversight Committee, or an agent, attorney, accountant or other professional
for the Liquidating Trustee or the Oversight Committee, against all costs,
expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by such entity in connection with such action, suit or
proceeding, or the defense or settlement of any claim, issue or matter therein,
to the fullest extent, except to the extent such liability is determined to be
the result of willful misconduct or gross negligence. Costs or expenses
incurred by any such entity in defending any such action, suit or proceeding
may be paid by the Liquidating Trust in advance of the institution or final
disposition of such action, suit or proceeding, if authorized by the
Liquidating Trustee and the Oversight Committee. The Liquidating Trustee may
in his discretion purchase and maintain insurance on behalf of any Person or
Entity who is or was a beneficiary of this provision.
5.2 NO RECOURSE. Except as provided in the Plan and this Trust Agreement,
no recourse shall ever be had, directly or indirectly, against the Liquidating
Trustee personally, or against any agent, attorney, accountant or other
professional for the Liquidating Trustee, by legal or equitable proceedings, or
by virtue of any statute or otherwise, nor upon any promise, contract,
instrument, undertaking, obligation, covenant or agreement whatsoever executed
by the Liquidating Trustee under the Plan, this Trust Agreement, or by reason
of the creation of any indebtedness by the Liquidating Trustee under the Plan
or this Trust Agreement for any purpose authorized by the Plan or this Trust
Agreement, it being expressly understood and agreed that all such liabilities,
covenants, and agreements shall be enforceable only against and be satisfied
only out of the Assets or such part thereof as shall under the terms of any
such agreement be liable therefor or shall be evidence only of a right of
payment out of the Assets.
5.3 LIMITED LIABILITY. The Liquidating Trustee shall not be liable for
any act he may do or omit to do while acting in good faith in the exercise of
his best judgment, and the fact that such act or omission was advised by an
authorized attorney for the Liquidating Trustee, shall be evidence of such good
faith and best judgment; nor shall the Liquidating Trustee be liable in any
event, except to the extent determined to be the result of his own gross
negligence or willful misconduct.
5.4 NO LIABILITY FOR ACTS OF PREDECESSOR. No successor Liquidating
Trustee shall be in any way responsible for the acts or omissions of any
Liquidating Trustee in office prior to the date on which such Person or Entity
becomes the Liquidating Trustee, nor shall he be obligated to inquire into the
validity or propriety of any such act or omission unless such successor
Liquidating Trustee expressly assumes such responsibility. Any successor
Liquidating Trustee shall be entitled to accept as conclusive any final
accounting and statement of Liquidating Trust Assets furnished to such
successor Liquidating Trustee by such predecessor Liquidating Trustee
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and shall further be responsible only for those Liquidating Trust Assets
included in such statement.
5.5 NO IMPLIED OBLIGATIONS. No other or further covenants or obligations
shall be implied into this Trust Agreement. The Liquidating Trustee shall not
be responsible in any manner whatsoever for the correctness of any recital,
statement, representation, or warranty herein, or in any documents or
instrument evidencing or otherwise constituting a part of the Liquidating Trust
Assets.
5.6 RESIGNATION OR REMOVAL. The Liquidating Trustee may resign at any
time by giving at least thirty (30) days' written notice to the members of the
Oversight Committee, provided that the Liquidating Trustee shall continue to
serve until the appointment of the successor Trustee is effective. If the
Oversight Committee at any time desires to terminate the appointment of the
Liquidating Trustee, the Oversight Committee may do so by written instrument
addressed to the Liquidating Trustee. In case of the resignation, removal or
death of the Liquidating Trustee, a successor shall thereupon be appointed by
the Oversight Committee pursuant to and in accordance with the provisions of
the Plan.
5.7 COMPENSATION. The Liquidating Trustee shall be compensated for
services in the administration of the Liquidating Trust in an amount and upon
any reasonable terms agreed upon between The Liquidating Trustee and the
Oversight Committee, without the approval of the Court. The compensation of
the Liquidating Trustee shall be equitably allocated by the Liquidating
Trustee, in consultation with the Oversight Committee, to the Trust Funds.
ARTICLE VI.
TERMINATION
The Liquidating Trust shall terminate at such time as the Assets have been
sold or distributed and claims pursued or abandoned pursuant to and in
accordance with the Plan and this Trust Agreement, but in any event, no later
than five (5) years from the date first written above, provided, that if
warranted by the facts and circumstances, and subject to the approval by the
Court upon a finding that the extension is necessary to the liquidating purpose
of the Liquidating Trust, the term may be extended for a finite term based on
the particular facts and circumstances. Each such extension must be approved
by the Court within six months of the beginning of the extended term.
ARTICLE VII.
MISCELLANEOUS
7.1 NOTICES. All notices, requests or other communications required or
permitted to be made in accordance with this Trust Agreement and the Plan,
shall be in writing and shall be delivered personally or by telex or other
telegraphic means or mailed by first class mail to the address set forth on the
signature line of such party with a copy to Carl A. Eklund and
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James L. Huemoeller, LeBoeuf, Lamb, Greene & MacRae, L.L.P., 633 Seventeenth
Street, Suite 2000, Denver, Colorado, 80202.
7.2 EFFECTIVENESS. This Trust Agreement shall become effective upon the
Effective Date of the Plan.
7.3 COUNTERPARTS. This Trust Agreement may be executed in one or more
counterparts, all of which shall be taken together to constitute one and the
same instrument.
7.4 GOVERNING LAW. Except to the extent the Bankruptcy Code or the
Bankruptcy Rules are applicable, this Trust Agreement shall be governed by,
construed under and interpreted in accordance with, the laws of the State of
Colorado.
7.5 HEADINGS. Sections, subheadings and other headings used in this Trust
Agreement are for convenience only and shall not limit or otherwise affect the
meaning and construction of this Trust Agreement.
7.6 SEVERABILITY. Any provision of this Trust Agreement which is
prohibited or unenforceable in any jurisdiction shall not invalidate the
remaining provisions hereof, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable any such
provision in any other jurisdiction.
7.7 ENTIRE AGREEMENT. This Trust Agreement (including the Recitals), the
Plan, and the Confirmation Order constitute the entire agreement by and among
the parties and there are no representations, warranties, covenants or
obligations except as set forth herein or therein. This Trust Agreement, the
Plan and the Confirmation Order supersede all prior and contemporaneous
agreements, understandings, negotiations, discussions, written or oral, of the
parties hereto, relating to any transaction contemplated hereunder. Except as
otherwise specifically provided herein, in the Plan or in the Confirmation
Order, nothing in this Trust Agreement is intended or shall be construed to
confer upon or to give any person other than the parties thereto and their
respective heirs, administrators, executors, successors, or assigns any right
to remedies under or by reason of this Trust Agreement.
7.8 EFFECT OF DEATH, INCAPACITY OR BANKRUPTCY OF BENEFICIARY. The Death,
incapacity or bankruptcy of a Beneficiary during the terms of this Trust
Agreement shall not operate to terminate the Trust Agreement, nor shall it
entitle the representatives or creditors of the deceased Beneficiary to an
accounting, or to take any action in the courts or elsewhere for the
distribution of the Assets or for a partition thereof, nor shall it otherwise
affect the rights and obligations of any Beneficiary.
7.9 EFFECT OF TRUST ON THIRD PARTIES. There is no obligation on the part
of any purchaser or purchasers from the Liquidating Trustee or any agent of the
Liquidating Trustee, or on the part of any other persons dealing with the
Liquidating Trustee or any agent of the Liquidating Trustee, to see to the
application of the purchase money or other consideration passing to the
Liquidating Trustee or any agent of the Liquidating Trustee, or to inquire into
the
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validity, expediency or propriety of any such transaction by the Liquidating
Trustee or any agent of the Liquidating Trustee.
7.10 WAIVER. No failure or delay of any party to exercise any right or
remedy pursuant to this Trust Agreement shall affect such right or remedy or
constitute a waiver by such party of any right or remedy pursuant thereto.
Resort to one form of remedy shall not constitute a waiver of alternative
remedies.
7.11 RELATIONSHIP CREATED. The only relationship created by this Trust
Agreement is the relationship between the Liquidating Trustee and the
Beneficiaries. No other relationship or liability is created. Nothing
contained in this Trust Agreement shall be construed so as to construe the
Beneficiaries or their successors-in-interest as creating an association,
partnership, or joint venture of any kind.
7.12 TAX IDENTIFICATION NUMBERS. The Liquidating Trustee may require any
Beneficiary to furnish to the Liquidating Trustee, its employer or tax payer
identification number as assigned by the Internal Revenue Service and the
Liquidating Trustee may condition any distribution to any Beneficiary upon
receipt of such identification number.
7.13 AMENDMENT OF TRUST AGREEMENT. This Trust Agreement may be amended,
modified or altered only upon approval of the Oversight Committee.
IN WITNESS WHEREOF, the parties hereto have executed this Trust Agreement
or caused this Trust Agreement to be duly executed by their respective officers
thereunto duly authorized as of the day and year first written above.
LIQUIDATING TRUSTEE:
By:
--------------------------------
David J. Beckman
--------------------------------
[Address]
--------------------------------
- -----------------------------------
Oren Lee Benton
- -----------------------------------
[Address]
- -----------------------------------
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