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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 2002
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Commission file number 000-24713
EBS PENSION, L.L.C.
(Exact name of registrant as specified in its charter)
Delaware 42-1466520
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
Sixth and Marquette; N9303-120
Minneapolis, Minnesota 55479
(Address of principal executive offices)
(612) 667-4803
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes [X] No [ ]
At November 1, 2002 there were 10,000,000 Class A Membership Units outstanding
and no Class B Membership Units outstanding.
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
EBS PENSION, L.L.C.
Statements of Operations
For the Three and Nine Month Periods
Ended September 30, 2002 and 2001
For the three months For the nine months
ended September 30, ended September 30,
2002 2001 2002 2001
(unaudited) (unaudited) (unaudited) (unaudited)
Income:
Settlement income $ - $ - $1,951,600 $ -
Interest 7,443 15,014 23,869 56,701
---------- ---------- ---------- ----------
Total income $ 7,443 $ 15,014 $1,975,469 $ 56,701
========== ========== ========== ==========
Expenses:
Manager fees $ 12,000 $ 12,604 $ 36,660 $ 37,400
Registrar, transfer agent and 58,547 4,600 77,747 28,800
paying agent fees
Legal fees - 5,000 17,036 11,389
Accounting fees 6,519 4,000 14,519 16,000
Other 17 1,259 3,673 2,359
---------- ---------- ---------- ----------
Total expenses 77,083 27,463 149,635 95,948
---------- ---------- ---------- ----------
Net (loss) income $ (69,640) $ (12,449) $1,825,834 $ (39,247)
========== ========== ========== ==========
Net (loss) income per unit - basic
and diluted $ (.007) $ (.001) $ 0.183 $ (.004)
========== ========== ========== ==========
The accompanying notes are an integral part of these financial statements.
2
EBS PENSION, L.L.C.
Balance Sheets
September 30, 2002 and December 31, 2001
September 30,
2002 December 31,
(unaudited) 2001
Assets
Cash and cash equivalents
Available for general operations $ 514,309 $ 136,847
Returned member distributions 262,057 262,057
Available for anticipated cost of legal
indemnification of officers 1,500,000 1,500,000
Interest receivable 2,380 3,278
Prepaid expenses 187 -
----------- -----------
Total assets $ 2,278,933 $ 1,902,182
=========== ===========
Liabilities
Accounts payable $ 6,610 $ -
Distribution payable 262,057 262,057
Accrued expenses 369,433 283,736
----------- -----------
Total liabilities 638,100 545,793
----------- -----------
Members' equity
Membership Units (Class A - 10,000,000 authorized,
issued and outstanding at September 30, 2002 and
December 31, 2001
Paid-in capital 1,667,492 1,667,492
Retained deficit (26,659) (311,103)
----------- -----------
Total members' equity 1,640,833 1,356,389
----------- -----------
Total liabilities and members' equity $ 2,278,933 $ 1,902,182
=========== ===========
The accompanying notes are an integral part of these financial statements.
3
EBS PENSION, L.L.C.
Statements of Changes in Members' Equity
For the Periods Ended
September 30, 2002 and December 31, 2001
Class A
Membership Paid in Retained
Units Capital Deficit Total
Balance, January 1, 2001 10,000,000 $ 1,667,492 $ (233,846) $ 1,433,646
Net loss - - (77,257) (77,257)
----------- ----------- ----------- -----------
Balance, December 31, 2001 10,000,000 1,667,492 (311,103) 1,356,389
Net income (unaudited) - - 1,825,834 1,825,834
Capital distribution (unaudited) - - (1,541,390) (1,541,390)
----------- ----------- ----------- -----------
Balance, September 30, 2002
(unaudited) 10,000,000 $ 1,667,492 $ (26,659) $ 1,640,833
=========== =========== =========== ===========
The accompanying notes are an integral part of these financial statements.
4
EBS PENSION, L.L.C.
Statements of Cash Flows
For the Nine Months Ended September 30, 2002 and 2001
For the nine months ended September 30,
2002 2001
(unaudited) (unaudited)
Cash flows from operating activities:
Net income (loss) $ 1,825,834 $ (39,247)
Reconciliation of net income (loss) to cash flows
provided by (used in) operating activities:
Increase in prepaid expenses (187) -
Decrease in interest receivable 898 4,636
Increase in accounts payable 6,610 -
Increase in accrued expenses 85,697 31,236
----------- -----------
Cash flows provided by (used in) operating activities 1,918,852 (3,375)
----------- -----------
Cash flows from financing activities:
Capital distributions (1,541,390) -
-----------
Cash flows used in financing activities (1,541,390) -
-----------
Net increase (decrease) in cash and cash equivalents 377,462 (3,375)
Cash and cash equivalents at beginning of period 1,898,904 1,907,334
----------- -----------
Cash and cash equivalents at end of period $ 2,276,366 $ 1,903,959
=========== ===========
The accompanying notes are an integral part of these financial statements.
5
EBS PENSION, L.L.C.
Notes to Financial Statements
September 30, 2002 and December 31, 2001
1. Description of Business
EBS Pension, L.L.C. (the "Company") is governed by a Members Agreement,
dated as of September 25, 1997 (the "Members Agreement"). Pursuant to the
Members Agreement, the Company is organized for the exclusive purposes of
(a) receiving and administering the cash proceeds (the "Pension Plan
Proceeds") to be received by Edison Brothers Stores, Inc. ("Edison") and
its affiliated debtors in possession (collectively with Edison, the
"Debtors") as a result of the termination of the Edison Brothers Stores,
Inc. Pension Plan (the "Pension Plan"), net of (i) the Pension Plan
assets transferred to qualified replacement pension plans, (ii) all
costs, fees and expenses relating to termination of the Pension Plan and
establishment of the replacement plans, and (iii) all applicable taxes
incurred or for which a reserve is established in connection with
termination of the Pension Plan, and (b) distributing such assets to
holders of Class A Membership Units (the "Members") in accordance with
the Members Agreement.
2. Summary of Significant Accounting Policies
This summary of significant accounting policies is presented to assist in
evaluating the Company's financial statements included in this report.
These policies conform to accounting principles generally accepted in the
United States of America. The preparation of financial statements in
conformity with accounting principles generally accepted in the United
States of America requires that management make estimates and assumptions
that impact the reported amounts of assets and liabilities at the date of
the financial statements and the reported amounts of revenues and
expenses during the reporting period. Adjustments are of a normal and
recurring nature. Actual results could differ from those estimates.
Basis of Presentation
These financial statements include the accounts of the Company for the
periods from January 1, 2001 through December 31, 2001, January 1, 2001
through September 30, 2001 (unaudited), January 1, 2002 through September
30, 2002 (unaudited), July 1, 2001 through September 30, 2001
(unaudited), and July 1, 2002 through September 30, 2002 (unaudited).
Cash and Cash Equivalents
Cash and cash equivalents consist of amounts held in an account in the
Company's name at a highly-rated financial institution, along with U.S.
Treasury Securities purchased and held in the Company's name.
The Company's cash and cash equivalents, excluding the $262,057 of
returned member distributions, plus any portion of proceeds
distributed under the Pension Plan Tax Reserve Settlement Agreement
(defined below) that may ultimately be received by the Company, will
be used for general operations and for the anticipated cost of legal
indemnification of the officers of Edison as contemplated by the
Members' Agreement and collecting any proceeds from the Pension Plan
Tax Reserve Settlement Agreement from Edison. Any amounts not used for
these purposes will be made available for future distributions to
Class A Membership Unit holders.
Accrued Expenses
Accrued expenses include amounts for unpaid legal, tax, accounting,
manager and transfer agent fees. Amounts are payable within one year.
Interest
Interest income is determined on the accrual basis. Interest receivable
is due to be received within one year.
Expenses
All expenses of the Company are recorded on the accrual basis of
accounting.
6
EBS PENSION, L.L.C.
Notes to Financial Statements
September 30, 2002 and December 31, 2001
Income Taxes
The Company is not subject to taxes. Instead, the Members report their
distributive share of the Company's profits and losses on their
respective income tax returns.
3. Distribution Payable
Through September 2002, a total of $262,057 of proceeds distributed to
Members in February 1998 were returned as the checks issued were not
claimed. The funds are held by the Company and are available for the
respective members to claim.
Any unclaimed funds will eventually escheat to the state in which they
were distributed according to that state's statutory period for unclaimed
property.
4. Members' Equity
On September 25, 1997, Edison transferred the right to receive the net
cash proceeds from the termination of the Pension Plan in exchange for
10,000,000 Class B Membership Units of the Company, which represented all
of the outstanding Membership Units of the Company. The Net Pension Plan
Proceeds (as defined by the plan) amounted to $43.9 million at December
31, 1997 and were due from Edison at that date. Pursuant to the Plan, an
additional amount of $5.7 million (the "Pension Plan Tax Reserve") was
being held by Edison to satisfy certain fees and tax liabilities of
Edison. The Plan of Reorganization further provided that upon receipt of
a private letter ruling (the "Tax Ruling") from the Internal Revenue
Service (the "IRS") indicating that no tax liability existed
necessitating release of funds from the Pension Plan Tax Reserve, that
Edison should remit such funds to the Company. On September 28, 1998, the
IRS issued the Tax Ruling.
On December 12, 1997, in accordance with the Members Agreement and the
Plan of Reorganization, Edison exchanged 9,058,041 Class B Membership
Units for 9,058,041 Class A Membership Units of the Company and
simultaneously distributed such Class A Membership Units to holders of
Allowed General Unsecured Claims.
During 1998, Edison paid $43.9 million to the Company in satisfaction of
the Company's receivable recorded at December 31, 1997. Of this amount,
$42.3 million was distributed to Class A Members during 1998, $1.5
million is retained for the anticipated cost of legal indemnification of
the officers of Edison, and the remaining amount is retained for other
anticipated expenses expected to be incurred by the Company.
During 1998, Edison exchanged 942,238 Class B Membership Units for
942,238 Class A Membership Units of the Company and simultaneously
distributed such units to holders of Allowed General Unsecured Claims.
Also during 1998, certain Class A Membership Unit holders returned 279
Class A Membership Units to Edison as such Membership Units had been
distributed in error. The distribution proceeds relating to these
returned Membership Units are included in paid in capital and were
available for future distributions to holders of Class A Membership
Units. Currently, Edison has no Class B Membership Units.
Proceeds of $262,057 (distributed to Members in February 1998) have been
returned, as the checks issued did not clear the bank. See Note 3 above
for further discussion.
On February 21, 2002, the parties executed a settlement agreement (the
"Pension Plan Tax Reserve Settlement Agreement") with regard to the
Pension Plan Tax Reserve, that was approved by the Court in March 14,
2002. Pursuant to the Pension Plan Tax Reserve Settlement Agreement,
Edison agreed to distribute to the Company cash equal to thirty-four
percent (34%) of its pre-petition claim of $5,740,000, which equals
$1,951,600, payable within three days after the order becomes final.
The Pension Plan Tax Reserve Settlement Agreement further provides
that additional distributions will be made to the Company at such
time, if ever, as the distributions to all holders of allowed general
unsecured claims against the Debtors exceed twenty-one
7
EBS PENSION, L.L.C.
Notes to Financial Statements
September 30, 2002 and December 31, 2001
percent (21%) of their allowed claims. Thereafter, the Company will
receive on account of its remaining claim, distributions equal to the
Company's pro rata share (based upon its remaining claim of $3,788,400)
of all distributions over twenty-one percent (21%) on a pro rata basis
with all general unsecured claims.
On April 17, 2002, the Company received the settlement cash of
$1,951,600, or thirty-four percent (34%), of its pre-petition claim. On
May 31, 2002, the Company distributed $1,541,390 to holders of Class A
Membership Units.
5. Related Parties
The Manager of the Company is the same financial institution that holds
the Company's cash and cash equivalents.
6. Commitments and Contingencies
On March 9, 1999, Edison filed for protection under Chapter 11 of the
Bankruptcy Code (the "Petition Date"). On April 23, 1999, the Company
filed a complaint (the "Complaint") against Edison seeking a declaration
that Edison was holding the Pension Plan Tax Reserve in constructive
trust for the Company and that it was not part of Edison's bankruptcy. On
June 16, 1999, the Company filed a motion for summary judgment with
respect to the Complaint. Edison filed a cross motion for summary
judgement on July 30, 1999. A hearing (the "Hearing") on the Company's
summary judgment motion was held on December 7, 1999 in the United States
Bankruptcy Court for the District of Delaware (the "Bankruptcy Court").
At the Hearing, the Bankruptcy judge denied both summary judgement
motions citing the existence of genuine issues of material fact, but, in
so holding, determined that Edison was holding the Pension Plan Tax
Reserve in constructive trust for the Company. After the Hearing, the
Company and Edison made several attempts to resolve this matter without
the need for trial, but were unsuccessful in these efforts. Both Edison
and the Company submitted pleadings in support of entry of judgment in
favor of their respective positions.
On or about April 28, 2000, the Debtors filed a Motion for an Order
Directing the Appointment of a Chapter 11 Trustee Pursuant to Section
1104 of the Bankruptcy Code. The Bankruptcy Court conducted a hearing on
this motion on May 16, 2000 and then entered an Order approving it
shortly thereafter. On May 30, 2000, the United States trustee for the
District of Delaware applied for an order appointing a Chapter 11 Trustee
in the Debtors' Chapter 11 cases. Bankruptcy Court granted the
application on the same day. Thereafter, on June 16, 2000, the Chapter 11
Trustee filed a Motion to Convert Case to Chapter 7 Pursuant to Sections
1112(a) and (b) of the Bankruptcy Code, which motion was approved by
order of the Bankruptcy Court dated July 5, 2000.
On October 17, 2000, the Debtors and the Company stipulated to a schedule
pursuant to which they would each submit to the Bankruptcy Court a motion
for entry of judgment with respect to the Complaint (the "Scheduling
Stipulation"). The Scheduling Stipulation also provided that each party
would be permitted to submit an answer brief and a subsequent reply
brief. Further, under the Scheduling Stipulation, the parties waived
their right to request an oral argument on their respective motions for
judgment. The parties filed and served the appropriate pleadings in
accordance with the Scheduling Stipulation. On October 11, 2001, the
Court concluded that the Company could not establish a nexus between the
alleged trust and the assets sought by the Company.
On February 21, 2002, the Company reached a settlement with regard to the
Pension Plan Tax Reserve as set forth in the Pension Plan Tax Reserve
Settlement Agreement as discussed above in Note 4. On April 17, 2002, the
Company received the settlement proceeds of the Pension Plan Tax Reserve.
On May 31, 2002, the Company distributed $1,541,390 to holders of Class A
Membership Units. The Company is currently awaiting the resolution of its
remaining claim to distributions equal to the Company's pro rata share
(based upon its remaining claim of $3,788,400) of all distributions over
twenty-one percent (21%) on a pro rata basis with all general unsecured
claims.
On May 29, 2002, the Chapter 7 Trustee of Edison Brothers Stores, Inc.
(the "Trustee") filed a Motion in the Bankruptcy Court for an Order
Approving, among other things, the sale of shares of Principal Financial
Group, Inc. Stock (the "Principal Stock"), free and clear of all liens,
claims and encumbrances (the "Motion"). On June 11,
8
EBS PENSION, L.L.C.
Notes to Financial Statements
September 30, 2002 and December 31, 2001
2002, the Company filed a limited objection (the "Limited Objection") to
the Motion. In the Limited Objection, the Company sought to preserve its
rights, if any, with respect to the Principal Stock or the proceeds
thereof. On June 18, 2002, the Court granted the Motion as provided in
the Order subject to the Company's Limited Objection. The Court indicated
that the proceeds of the sale of the Principal Stock were to be held by
the Trustee in a segregated account subject to further order of the Court
and the Company's right to assert an interest in said proceeds.
9
Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The following is a discussion and analysis of the financial condition and
results of operations of the Company as of and for the years ended December 31,
2001, 2000, 1999 and 1998 and as of and for the periods ended December 31, 1997,
January 1, 2001 through September 30, 2001 (unaudited), January 1, 2002 through
September 30, 2002 (unaudited), July 1, 2001 through September 30, 2001
(unaudited), and July 1, 2002 through September 30, 2002 (unaudited), and of
certain factors that may affect the Company's prospective financial condition
and results of operations. The following should be read in conjunction with the
Company's Financial Statements and Notes thereto included elsewhere herein and
included in the Company's Annual Report and Form 10-K for the year ended
December 31, 2001. This discussion contains certain forward-looking statements
that involve risks and uncertainties. The Company's actual results could differ
materially from the results expressed in, or implied by, such statements.
Results of Operations/Overview
The Company, which was formed pursuant to the Amended Joint Plan of
Reorganization Under Chapter 11 of the U.S. Bankruptcy Code filed by the Debtors
(the "Plan") and the Members Agreement, is a limited purpose entity which was
organized for the exclusive purposes of (a) receiving and administering the
Company Assets, and (b) distributing the Company Assets to holders of the
Company's Class A Membership Units pursuant to the terms of the Members
Agreement.
On January 23, 1998, the Company received from Edison, Pension Plan
Proceeds totaling approximately $43.9 million. The Company recognizes income
from interest earned on its funds. The Company invests such funds in a money
market fund investing solely in direct obligations of the United States
Government. The Members Agreement permits all funds received by the Company to
be temporarily invested in United States treasury bills and notes with
maturities of 12 months or less, institutional money market funds and demand or
time deposits and certificates of deposit with U.S. federal or state commercial
banks having primary capital of not less than $500 million. During the years
ended December 31, 2001, 2000, 1999 and 1998, the Company recognized $67,172,
$80,314 and $321,488 of interest income, respectively. During the period ended
December 31, 1997, the Company did not recognize any interest income because it
did not receive the Pension Plan Proceeds until January 1998. During the nine
month periods ended September 30, 2002 and 2001, the Company recognized $23,869
and $56,701 of interest income, respectively. The amount of interest income
recognized by the Company in future periods will be dependent on, among other
things, (1) fluctuations in interest rates, (2) the amounts and timing of any
amounts received in the future from the Pension Plan Tax Reserve, (3) the amount
and timing of distributions, if any, to holders of Class A Membership Units, and
(4) the amount and timing of the Company's expenses.
The Company's general and administrative expenses consist primarily of
fees payable to the Manager, the Registar, Transfer Agent and Paying Agent, and
the Company's lawyers, accountants, and auditors. The Company had expenses of
$144,429, $212,141, $219,450, $256,064 and $51,910 for the years ended December
31, 2001, 2000, 1999 and 1998 and for the period ended December 31, 1997,
respectively. During the nine month periods ended September 30, 2002 and 2001,
the Company had expenses of $149,635 and $95,948, respectively. These expenses
are expected to fluctuate in future periods primarily based on the volume of any
future disbursements on account of Class A Membership Units and any actions the
Company takes in attempting to collect the Pension Plan Tax Reserve from Edison.
The Company and EBS Litigation, L.L.C. (another limited liability company
formed pursuant to the Plan) have agreed to indemnify the Debtors and their
present or former officers, directors and employees from and against any losses,
claims, damages or liabilities by reason of any actions arising from or relating
to the Company and any actions taken or proceeding commenced by EBS Litigation,
L.L.C. (other than with respect to any Unresolved Avoidance Claims (as defined
in the Plan) that EBS Litigation, L.L.C. may have against such persons other
than in their capacities as officers, directors or employees of the Debtors.
Pursuant to the Plan, the Company established the Indemnification Reserve ($1.5
million) from the Pension Plan Proceeds for the benefit of these indemnified
persons, to pay their costs and expenses incurred in defending the LLC Related
Claims (as defined in the Plan). Payment of such cost and expenses must first be
sought from any applicable officers' and directors' insurance policy and then
from the Indemnification Reserve. The Company's indemnification liability is
limited to the amount of the Indemnification Reserve, i.e. an aggregate of $1.5
million. Although to date there has not been any indemnification claim, there
can be no assurance such a claim will not be made in the future.
10
All liabilities of the Company, including the foregoing indemnification
obligations, will be satisfied from the Company Assets.
At December 31, 2001, 2000 and 1999, the Company had cash and cash
equivalents of approximately $1.9 million. At December 31, 1998, the Company had
cash and cash equivalents of approximately $1.8 million, after approximately
$42.3 million was distributed to holders of Class A Membership Units in 1998. At
December 31, 1997, the Company had no cash or cash equivalents. At September 30,
2002, the Company had cash and cash equivalents of approximately $2.3 million,
including the unclaimed funds discussed in Note 3 to the financial statements.
When determining the amount and timing of distributions, the Manager considered,
among other things, (1) the terms of the Members Agreement governing
distributions, and (2) the anticipated amount of necessary reserves and future
administrative expenses. The amount and timing of any future distributions of
Pension Plan Proceeds will be determined by the Manager in accordance with the
terms of the Members Agreement. There can be no assurance as to the amount (if
any) of any further distributions that will be made.
In September 2000, the Company filed a motion with the United States
Bankruptcy Court, District of Delaware (the "Bankruptcy Court") to reopen the
bankruptcy case of Edison Brothers Stores, Inc. for the limited purpose of
extending the term of the Company. Section 1.4 of the Company's Members
Agreement limits the Company's existence to three years subject to extension(s)
approved by the Bankruptcy Court for good cause shown. Therefore, the Company's
existence was set to expire on September 26, 2000 unless extended by the
Bankruptcy Court. In its motion, the Company argued that the Company's members
would be best served by permitting the Company to remain a going concern. The
Bankruptcy Court granted the Company's motion to extend the existence of the
Company for an additional two-year term.
On February 21, 2002, the parties executed a settlement agreement (the
"Pension Plan Tax Reserve Settlement Agreement"), that was approved by the Court
on March 14, 2002. Pursuant to the Pension Plan Tax Reserve Settlement
Agreement, Edison agreed to distribute to the Company cash equal to thirty-four
percent (34%) of its pre-petition claim of $5,740,000 which equals $1,951,600
payable within three days after the order becomes final. The Pension Plan Tax
Reserve Settlement Agreement further provides that additional distributions will
be made to the Company at such time, if ever, as the distributions to all
holders of allowed general unsecured claims against the Debtors exceed
twenty-one percent (21%) of their allowed claims. Thereafter, the Company will
receive on account of its remaining claim, distributions equal to the Company's
pro rata share (based upon its remaining claim of $3,788,400) of all
distributions over twenty-one percent (21%), on a pro rata basis with all
general unsecured claims.
On May 29, 2002, the Chapter 7 Trustee of Edison Brothers Stores, Inc.
(the "Trustee") filed a Motion in the Bankruptcy Court for an Order Approving,
among other things, the sale of shares of Principal Financial Group, Inc. Stock
(the "Principal Stock"), free and clear of all liens, claims and encumbrances
(the "Motion"). On June 11, 2002, the Company filed a limited objection (the
"Limited Objection") to the Motion. In the Limited Objection, the Company sought
to preserve its rights, if any, with respect to the Principal Stock or the
proceeds thereof. On June 18, 2002, the Court granted the Motion as provided in
the Order subject to the Company's Limited Objection. In addition, the Court
indicated that the proceeds of the sale of the Principal Stock were to be held
by the Trustee in a segregated account subject to further order of the Court and
the Company's right to assert an interest in said proceeds. The Company is
pursuing its potential interest in the Principal Stock with the Trustee.
Further, there can be no assurances as to the interest (if any) that the Company
has in said proceeds.
In September 2002, the Company filed a motion with the Bankruptcy Court
to reopen the bankruptcy case of Edison Brothers Stores, Inc. for the limited
purpose of extending the term of the Company. As mentioned above, Section 1.4 of
the Company's Members Agreement originally limited the Company's existence to
three years subject to extension(s) approved by the Bankruptcy Court for good
cause shown. In September 2000, the Bankruptcy Court granted the Company's
motion to extend the existence of the Company for an additional two-year term.
The Bankruptcy Court granted the Company's motion to extend the term of
existence for an additional two-year term.
Following satisfaction of administrative expenses, any funds remaining on
deposit will be made available for distribution to holders of Class A Membership
Units in the Company. In addition, any remaining balance of the $1.5 million
Indemnification Reserve, if any, ultimately would be available for such
distribution.
The Company is classified as a partnership for federal income tax
purposes and, therefore, does not pay any taxes. Instead, the Members pay taxes
on their proportionate share of the Company's income.
11
Quarterly Comparison
Nine Months ended September 30, 2002 Compared to Nine Months Ended September 30,
2001
Total income for the nine months ended September 30, 2002 was
$1,975,469 compared to $56,701 for the nine months ended September 30, 2001.
This increase is due to the cash received by the Company as a result of the
Pension Plan Tax Reserve Settlement Agreement.
Total expenses increased $53,687 due primarily to an increase in
registar, transfer agent and paying agent fees related to the negotiation and
resolution of the Pension Plan Tax Reserve Settlement Agreement.
Item 4. Controls and Procedures
The Company maintains a set of disclosure controls and procedures
designed to ensure that information required to be disclosed by the Company in
reports that it files or submits under the Securities and Exchange Act of 1934
is recorded, processed, summarized and reported with the time periods specified
in the Securities and Exchange Commission rules and forms. Within the 90-day
period prior to filing of this report, an evaluation was carried out under the
supervision and with the participation of the Company's management of the
effectiveness of the Company's disclosure controls and procedures. Based on that
evaluation, the Company's management has concluded that the Company's disclosure
controls and procedures are effective.
Subsequent to the date of their evaluation, there have been no
significant changes in the Company's internal controls or in other factors that
could significantly affect these controls.
12
PART II. OTHER INFORMATION
Item 1. Legal Proceedings.
Other than the matters discussed in Part I, Item 2 of this Quarterly
Report, the Company is not involved in any legal proceedings.
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits Description
-------- -----------
2.1* Amended Joint Plan of Reorganization of Edison
Brothers Stores, Inc.
3.1* EBS Pension, L.L.C. Certificate of Formation
3.2* EBS Pension, L.L.C. Membership Agreement
* Incorporated by reference to the same numbered exhibit filed with the
Registrant's Registration Statement on Form 10 originally filed with the
SEC on July 29, 1998 (SEC File No. 000-24713).
(b) Reports on Form 8-K
On August 14, 2002, the Company filed a current report on
Form 8-K under Item 9 (Regulation FD Disclosure) providing
for the Company's Manager's certification pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002.
13
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
EBS PENSION, L.L.C.
By: WELLS FARGO BANK MINNESOTA, N.A.,
in its capacity as Manager of EBS Pension, L.L.C.
By: /s/ Lon P. LeClair
---------------------------------------------
Lon P. LeClair
Vice President
Date: November 14, 2002
14
CERTIFICATIONS
On behalf of Wells Fargo Bank Minnesota, N.A., Manager of EBS Pension, L.L.C, I,
as Vice President of Wells Fargo Bank Minnesota, N.A., hereby certify that, :
1. I have reviewed this quarterly report on Form 10-Q of EBS Pension,
L.L.C.;
2. Based on my knowledge, this quarterly report does not contain any
untrue statement of a material fact or omit to state a material
fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not
misleading with respect to the period covered by this quarterly
report;
3. Based on my knowledge, the financial statements, and other
financial information included in this quarterly report, fairly
present in all material respects the financial condition, results
of operations and cash flows of the registrant as of, and for, the
periods presented in this quarterly report;
4. I am responsible for establishing and maintaining disclosure
controls and procedures (as defined in Exchange Act Rules 13a-14
and 15d-14) for the registrant and have:
a) designed such disclosure controls and procedures to ensure
that material information relating to the registrant,
including its consolidated subsidiaries, is made known to
us by others within those entities, particularly during the
period in which this quarterly report is being prepared;
b) evaluated the effectiveness of the registrant's disclosure
controls and procedures as of a date within 90 days prior
to the filing date of this quarterly report (the
"Evaluation Date"); and
c) presented in this quarterly report our conclusions about
the effectiveness of the disclosure controls and procedures
based on our evaluation as of the Evaluation Date;
5. I have disclosed, based on our most recent evaluation, to
the registrant's auditors and the audit committee of
registrant's board of directors (or persons performing the
equivalent functions):
a) all significant deficiencies in the design or operation of
internal controls which could adversely affect the
registrant's ability to record, process, summarize and
report financial data and have identified for the
registrant's auditors any material weaknesses in internal
controls; and
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b) any fraud, whether or not material, that involves
management or other employees who have a significant role
in the registrant's internal controls; and
6. I have indicated in this quarterly report whether there
were significant changes in internal controls or in other
factors that could significantly affect internal controls
subsequent to the date of our most recent evaluation,
including any corrective actions with regard to significant
deficiencies and material weaknesses.
Date: November 14, 2002
/s/ Lon P. LeClair
--------------------------------
Lon P. LeClair, Vice President
Wells Fargo Bank Minnesota, N.A.
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