Exhibit 4(r)
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PAYING AGENT AGREEMENT
This Paying Agent Agreement ("Agreement") is entered into as of
December 11, 2002 between Registrar and Transfer Company, as Paying Agent (the
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"Paying Agent"), Royal Palm Beach Colony, Limited Partnership, a limited
partnership organized under the laws of the State of Delaware (the
"Partnership"), Xxxxx Management Company, Inc., the managing general partner of
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the Partnership ("Steinco") and Steinco LLC ("SLLC") a New Jersey limited
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liability company and a subsidiary of Steinco.
A. The Partnership was organized in 1985 for the express purpose of disposing of
certain assets distributed to it by a predecessor corporation, and thereafter
distributing the net proceeds thereof to the partners of the Partnership. The
Partnership has been operated pursuant to an Agreement of Limited Partnership
dated as of May 22, 1985 (the "Partnership Agreement").
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B. (1) In connection with the formation of the Partnership, holders of the
common stock of the predecessor corporation were entitled to receive
certificates for a number of Partnership Units exactly equal to the number of
shares of common stock held by them. Certain shareholders, however, did not
exchange their stock certificates for Partnership Unit certificates. The stock
certificates that have not been exchanged are referred to hereafter as
"Unexchanged Certificates." For convenience,
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(a) the terms "Partner" and "Partners" mean, collectively, the holder or
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holders of certificated Units and holders of Unexchanged Shares, unless the
context otherwise requires; and
(b) the term "Unit" or "Partnership Unit" or the plural of either terms
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means a unit or units of interest in the Partnership, whether such Unit is owned
by a holder of Certificated Units or is represented by Unexchanged Shares.
C. A subsidiary of Predecessor Company which owned and operated a water utility
("Utility") in the Village of Royal Palm Beach, Florida (the "Village"),
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executed an Agreement of Purchase and Sale dated March 30, 1983 (the "Utility
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Agreement"), pursuant to which, among other matters, the Village purchased the
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Utility and agreed, in addition to a cash payment at closing, to make additional
annual payments (the "Contingent Payments) based on the number of new
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residential and other water hookups taking place in the Village during future
annual periods. Three annual Contingent Payments remain to be made by the
Village in respect of the fiscal years of the Utility ending August 31 of each
of 2002, 2003 and 2004, with the payments to be made on January 15 of 2003, 2004
and 2005, respectively. The Contingent Payment due in January 2003 will be
approximately $650,000. The Partnership cannot predict the amount of the
Contingent Payments due in 2004 and 2005.
D. The only remaining assets of the Partnership are (1) cash and (2) the right
to receive the Contingent Payments. The Board of Directors of SLLC has therefore
caused the Partnership to adopt a Plan of Liquidation ("Liquidation Plan ")
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under which the Partnership will be liquidated and dissolved, and its assets
distributed pro rata to the Partners in accordance with their
Percentage Interests in the Partnership, all as originally contemplated in the
Partnership Agreement (hereafter the "Liquidation"). A copy of the Liquidation
Plan is appended as an Exhibit to this Agreement. Pursuant to the Liquidation
Plan, the liquidation date (hereafter the "Liquidation Date" shall occur on or
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before December 30, 2002 but may be deferred by Steinco under certain
circumstances.
E. On or shortly prior to the Liquidation Date, the Partnership will distribute
substantially all of its remaining cash (other than cash to be held in the
Reserve Account (as defined in the Liquidation Plan)) to Notice Record Holders
(as defined in Section 1(b) of the Liquidation Plan - (said distribution being
hereafter referred to as the "Pre-Liquidation Distribution").
F. SLLC, following the Liquidation Date, will act as Liquidating Agent for the
dissolved Partnership. Steinco is the Managing member of SLLC. The Liquidation
Plan provides that in order to facilitate the eventual distribution to the
partners of any amounts collected in respect of the Contingent Payments, the
Partnership shall assign, as of the Liquidation Date, undivided,
non-transferable interests in the Contingent Payments to the Partners pro rata
in accordance with their respective Percentage Interests. In order to create a
mechanism to accomplish the foregoing, the legal rights of the Partnership to
receive such Contingent Payments will be assigned to SLLC acting solely as
Liquidating Agent for the dissolved Partnership, and solely to enable SLLC to
have the right to enforce payment of the Contingent Payments on behalf of the
Record Holders should the necessity for such enforcement arise. The Partnership
has entered into an Addendum to the Utility Agreement with the Village
(hereafter the "Utility Addendum") pursuant to which the Village will directly
transfer to the Paying Agent such amounts, if any, as become due in respect of
the Contingent Payments, for further distribution by the Paying Agent to the
Partners of record as of the Liquidation Date.
G. The Paying Agent has heretofore served as the transfer agent for the
Partnership's Units and performed distribution and certain tax-related services
for the Partnership, and shall continue to serve in such capacity through the
Liquidation Date. Steinco, SLLC and the Partnership desire to retain the Paying
Agent to provide paying agency services with respect to the collection of
Contingent Payments when, as and if the Contingent Payments are transmitted to
the Paying Agent pursuant to the Utility Addendum, and to distribute the net
amount thereof to the Record Holders. SLLC and the Partnership also desire the
Paying Agent to continue to perform certain other services relating to the
Partnership's final tax return and the distribution of tax information to former
Partners.
H. Wherever capitalized terms are used herein and not otherwise defined they
shall have the meanings ascribed to them in the Liquidation Plan.
NOW THEREFORE, the parties agree as follows:
1. Delivery of Documents (a) The Partnership has delivered to the Paying Agent
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the following documents in connection with its appointment:
(i) The Liquidation Plan;
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(ii) The Utility Addendum;
(iii) The Partnership's report on Form 10-K to the Securities and Exchange
Commission for the Partnership's fiscal year ended September 30, 2002, in the
form to be filed with the Commission; (provided, however, that the Partnership
may make miscellaneous changes to such report which do not substantively or
procedurally disclose any matter which Paying Agent reasonably deems to be
prejudicial or adverse to the Paying Agent);
(iv) A draft of the Liquidation Notice contemplated under Section 1(c) of
the Liquidation Plan;
(v) A draft of the assignment to be made of the Contingent Payments
contemplated under Section 3(a) of the Liquidation Plan. The amount of such
undivided interest assigned to each Record Holder shall be equal to such
Partner's Percentage Interest (as defined in the Liquidation Plan) of each such
Contingent Payment.
(b) Steinco may make miscellaneous changes to any of the foregoing
documents which do not substantively or procedurally disclose any matter which
Paying Agent reasonably deems to be prejudicial or adverse to the Paying Agent).
(c) Promptly after the execution and effectiveness and/or filing of any
documents delivered in draft form, the Partnership shall deliver to the Paying
Agent true copies of such documents as the same have been executed and/or filed.
2. Establishment of Record Holders, Mailing of Notices
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(a) Notice Record Date
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(i) The Paying Agent will cause a record ("Record List") to be made of
all Record Holders of the Partnership as of the Notice Record Date, as described
in Section 1(b) of the Plan. Partners listed on the First Record List are
hereafter referred to as the "Notice Record Holders."
(ii) The Partnership shall prepare and deliver to the Paying Agent a
notice ("Liquidation Notice") to each Unit Holder of record on the Preliminary
Record List, advising of the forthcoming liquidation of the Partnership. The
Preliminary Liquidation Notice shall
(A) establish a future record date ("Pre-Liquidation Distribution
Record Date") and payment date for determination of Partners entitled to the
Pre-Liquidation Distribution.; and
(B) state the intended Liquidation Date of the Partnership.
(iii) The Paying Agent shall thereafter deliver the Liquidation Notice
to the Notice Record Holders by first class mail, together with a copy of the
Liquidation Plan and a copy of the Partnership's Report on Form 10-K for the
year ended September 30, 2002.
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(b) Pre-Liquidation Record Date and Pre-Liquidation Distribution The
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Paying Agent will take its customary steps to take a record of all record
holders as of the Pre-Liquidation Distribution Record Date. At least seven (7)
days prior to the Pre-Liquidation Distribution Date the Partnership will pay
over to the Paying Agent the amount of the Pre-Liquidation Distribution. The
Paying Agent shall thereafter, on the Pre-Liquidation Distribution Date,
distribute such amount to the record holders as of the Pre-Liquidation
Distribution Record Date, pro rata in accordance with their respective
Percentage Interests.
(c) Final Record Date
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(i) The Paying Agent shall cause to be prepared, as of the Liquidation
Date, a final record of each of the Partners who are holders of record of
Partnership Units (the "Final Record List"). Such Partners are hereafter
referred to as "Record Holders." The Final Record List shall set forth the full
name, address, taxpayer identification number (if known), number of Units held
and Percentage Interest of each Record Holder as of the Liquidation Date. A copy
of the Record list shall be maintained by SLLC as Liquidating Agent.
(ii) The Final Record List shall not be changed other than for the
correction of ministerial errors, including errors in ascribing interests to
Record Holders or holders of Unexchanged Shares, or errors in the computation of
Percentage Interests. For such purposes, SLLC is authorized to deliver
supplements or amendments of the Final Record List to the Paying Agent.
Notwithstanding the foregoing, both R&T and SLLC shall abide by any order issued
by a court of competent jurisdiction, including court orders pertaining to the
transfer of Contingent Payment Interests for any reason including by testate or
intestate succession.
(d) Final Beneficial Owner List
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(i) The Paying Agent shall, as of the Liquidation Date, prepare the
Final Beneficial Owner List. As used herein "Final Beneficial Owner List" means
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a list, prepared substantially in accordance with the Partnership's annual
practice, containing the names of all of the beneficial owners of the
Partnership's partnership Units to the extent such beneficial owners can be
ascertained without undue expense, for the sole purpose of (i) determining the
names, addresses, beneficial ownership of Units and to the extent obtainable
taxpayer identifying information of beneficial owners (ii) distributing to such
beneficial owners with final Forms K-1 reflecting their respective shares of
items of income and deductions of the Partnership for its tax year ending
December 31, 2002 and (iii) distributing to such beneficial owners forms
1099-Misc with respect to each Contingent Payment distribution.
(ii) The Partnership shall, prior to the Liquidation Date, retain the
services of Wall Street Concepts, Inc. to perform the services it has performed
in prior years for the purposes obtaining up-to-date information from brokers
and other institutional Record Holders of the Partnership's Units concerning
persons or entities for whom such Record Holders hold Units in "street" name. To
the extent that the number of Units identified by a Record Holder to named
beneficial owners is exceeded by the number of Units attributed to such Record
Holder on the Final Record List, such excess shall be attributed to the Record
Holder.
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3. Authorization of Actions by Paying Agent
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The Paying Agent is authorized and hereby agrees to act as follows:
(a) to act as Transfer Agent for the Partnership through the
Liquidation Date and to perform its customary services at its customary fees
through the Liquidation Date;
(b) to receive all Contingent Payments made by the Village pursuant to
the Utility Addendum and deposit the same in an account or otherwise segregate
such funds for the benefit of Record Holders;
(c) promptly to notify SLLC of any Incremental R&T Costs ;
(d) to follow instructions of SLLC with respect to the waiver of any
irregularities or deficiencies associated with any list or Record Holders and/or
beneficial owners;
(e) promptly following the receipt of Contingent Payments, to
(i) determine whether any Incremental R&T Costs (as defined in Section
6(b) below) have not been reimbursed and, if not so reimbursed, to promptly
request SLLC to effect reimbursement thereof from the Reserve Account and, if
such reimbursement is not made with 15 days after delivery of such request, to
deduct the same and pay the amount thereof to itself prior to determining the
net amount of the Contingent Payment distributable to Record Holders ("Net
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Contingent Payment");
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(ii) to receive and carry out instructions from SLLC to add funds to
the Reserve Account out of the Contingent Payments upon the certification from
SLLC that such additions are required or permitted pursuant to the Liquidation
Plan;
(iii) determine to portion each Net Contingent Payment to be
distributed to each Record Holder based upon the Percentage Interest
attributable to each Record Holder;
(iv) mail to each Record Holder at the address specified in the Final
Record List, by first class mail, postage prepaid, a check representing the
amount of their Percentage Interest in the Net Contingent Payment; and
(v) to render a prompt written report to SLLC listing the payments made
to each Record Holder.
4. Preparation and Mailing of Tax Information
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(a) Forms K-1 Promptly following the end of each calendar year in which
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Contingent Payments are distributed to Record Holders, the Paying Agent will
issue to each Beneficial Owner a Form 1099-Misc indicated the amount so
distributed.
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(b) Forms 1099 Misc The Paying Agent shall distribute to each Record
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Holder as Form 1099-Misc with respect to each distribution of a Contingent
Payment. Pursuant to the Utility Addendum, such Forms shall be issued in the
name of and carry the taxpayer Identification Number of the Village.
5. Limitations of Paying Agent Obligations
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The Paying Agent shall:
(a) have no duties or obligations other than those specifically set
forth herein;
(b) not be required to and shall make no representations and have no
responsibilities as to the validity, accuracy, value or genuineness of any
signatures or endorsements, other than its own;
(c) not be obligated to take any legal action hereunder that might, in
its judgment, involve any expense or liability, unless it has been furnished
with reasonable indemnity by a party having, it the Paying Agent's reasonable
judgment, sufficient capability of making good on any such indemnity;
(d) have the right to rely on and shall be protected in acting on the
written or oral instructions with respect to any matter relating to its actions
as Paying Agent shall receive from any person it reasonably believes to be an
executive officer of Steinco (prior to the Liquidation Date) or an executive
officer of or managing member or manager of SLLC (from and after the Liquidation
Date) which are not inconsistent with the provisions of this Agreement;
(e) be able to rely on and shall be protected in acting upon any
certificate, instrument, opinion, notice, letter, telegram or any other document
or security delivered to it and believed by it reasonably and in good faith to
be genuine and to have been signed by the proper party or parties;
(f) not be responsible for or liable in any respect on account of the
identity, authority or rights of any person executing or delivering or
purporting to execute or deliver any document or funds under this Agreement and
shall have no responsibility with respect to the use or application of any funds
delivered by it pursuant to the provisions hereof;
(g) be entitled to consult with counsel satisfactory to it (including
counsel for the Partnership or the Liquidating Agent) and the advice or opinion
of such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in accordance with advise or opinion of such counsel;
(h) not liable for anything which it may do or refrain from doing in
connection with this Agreement except for its own gross negligence, willful
misconduct or bad faith;
(i) not be bound by any notice or demand, or any waiver or modification
of this Agreement or any of the terms hereof, unless evidenced by a writing
delivered to the Paying
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Agent signed by any person it reasonably believes to be an executive officer of
Steinco (prior to the Liquidation Date) or an executive officer of or managing
member or manager of SLLC (from and after the Liquidation Date) and, if the
Paying Agent's duties or rights are affected, unless the Paying Agent shall give
its prior written consent thereto;
(j) have no duty to enforce any obligation of any person to make
delivery, or to direct or cause any delivery to be made, or to enforce any
obligation of any person to perform any other act; and
(k) have the right to assume, in the absence of written notice to the
contrary from the proper person or persons, that a fact or an event by reason of
which an action would or might be taken by the Paying Agent does not exist or
has not occurred without incurring liability for any action taken or omitted, or
any action suffered by the Paying Agent to be taken or omitted, in good faith or
in the exercise of the Paying Agent's best judgment, in reliance upon such
assumption.
6. Compensation to Paying Agent
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(a)The Paying Agent shall be entitled to compensation as set forth in
Exhibit A attached hereto, to be paid as set forth therein. Such fees shall be
paid to the Paying Agent prior to the Liquidation Date.
(b) If, due to circumstances arising following the Liquidation Date
which are not foreseen in this Agreement the Paying Agent incurs additional
expenses or renders services in excess of those services contemplated in this
Agreement ("Incremental Paying Agent Costs"), SLLC shall pay such additional
Incremental Paying Agent Costs from the Reserve Account. If SLLC does not cause
such payments to be made, then the Paying Agent shall be entitled to deduct the
amount of such Incremental Paying Agent Costs from the any Contingent Payment
prior to the distribution thereof to the Record Holders.
7. Indemnification of Paying Agent The Partnership (and, following the
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Liquidation Date, SLLC to the extent of the Reserve Account) covenants and
agrees to reimburse the Paying Agent for, indemnify it against, and hold it
harmless from any and all reasonable costs and expenses (including reasonable
fees and expenses of counsel) that may be paid or incurred or suffered by it or
to which it may become subject without gross negligence, willful misconduct or
bad faith on it part by reason of or as a result of its compliance with the
instructions set forth herein or with any additional or supplemental written or
oral instructions delivered to it pursuant hereto, or which may arise out of or
in connection with the administration and performance of its duties under this
Agreement.
8. Governing Law This Agreement shall be construed and enforced in
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accordance with the laws of the State of New Jersey and shall inure to the
benefit of, and the obligations created hereby shall be binding upon, the
successors and assigns of the parties hereto.
9. Notices. All notices, requests and demands to or upon a party hereto
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shall be in writing and shall be delivered by hand against written receipt, sent
by certified or registered mail, return receipt requested, by confirmed
facsimile transmission or by courier service which
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guarantees next business day delivery, and shall be deemed to have been validly
served, given or delivered on the date delivered by hand against receipt, in the
case of telecopy notice when received at the office of the noticed party, or if
by mail or by such courier service when actually delivered to the parties hereto
at the addresses set forth below, or to such other addresses as to which any
party has delivered notice as required in this subsection:
If to the Paying Agent, to: Registrar and Transfer Company
00 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx Xxxxx
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c/o Xxxxx X. Xxxxxxx
If to the Partnership, Steinco, or -------------------------------
SLLC, to the relevant party at: 0 Xxxxxxxxxx Xxxxx
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Xxxxxxxxxx, XX 00000
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10. Amendments This Agreement may be amended by consent of SLLC and the
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Paying Agent if (a) such amendment would, in the reasonable discretion of the
parties, facilitate the distribution of funds to Record Holders and tax
information to Beneficial Owners or otherwise be in the best interests of Record
Holders or Beneficial Owners; or (b) unanticipated events occurring subsequent
to the Liquidation Date render such changes necessary or advisable in order to
protect or enable the parties to protect the best interests of the Record
Holders, as reasonably determined by the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Paying Agent
Agreement to be executed on their behalf by their officers thereunto duly
authorized, all as of the day and year first above written.
Registrar and Transfer Company: For the Partnership:
By: ________________________ Xxxxx Management Company, Inc.
President and Chief Executive Officer as Managing Partner
By: ________________________
Attest: ______________________ President
Xxxxx Management Company, Inc.
By: ________________________
Xxxxxx Xxxxx, President
Steinco LLC
by: Xxxxx Management Company, Inc.,
Managing Member
By: ________________________
Xxxxx X. Xxxxxxx, Vice President
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Registrar and Transfer Company
Royal Palm Beach Colony Liquidation
Paying Agent Service Fees for 2003, 2004 and 2005
December 11, 2002
1. Service Fee: $18,000
Services & Costs Included:
o Maintenance of All Account Records for at least 5 years
o Calculation and Production of 3 Post-Liquidation Distributions to
Holders of Record [Only]
o Mailing Forms 1099MISC to Holders of Record for each Distribution
and Submitting Electronically 1099MISC Information to the IRS
o Out-of-Pocket Expenses Relating to these Mailings including
checks, envelopes, 1099 forms and postage
o Replacement and Reconciliation of Distribution Checks for these
distributions
o Coding Accounts as lost and performing electronic lost investor
searches in accordance with SEC Regulations
o Reporting of Abandoned Property in Accordance with applicable
state laws.
Services Not Included:
Form K-1 production to registered and beneficial shareholders for the current
year and going forward. Based upon last year's K-1 production costs, the total
cost for 2002 K-1 production is estimated to be about $5,000 including
calculation, mailing and postage, but not including any printing costs. R&T will
accept such amount this as a fixed fee for 2002 K-1 production, excluding
printing costs.
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