1997-07-31_GENERAL DOCUMENTS - C1981017

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4.3.5 Residual Funds.In the event that the Mine Site is fully reclaimed without expending all funds distributed to the MLRB under the Plan, the balance of such funds shall be used, first, to complete any distributions owed to Class 9 under the Plan; second, to supplement the funds reserved for Class 6 claims pursuant to Section 4.4 of the Plan; and third, to pay Sanwa on account of Sanwa's Class 4 claim. [Double underlining added.] 31. In connection with Coal Basin mine property reclamation,Creditors'Trustee has in cash or credits and for the use and benefit of DMG and/or its reclamation fund,paid or accrued an aggregate bonding equivalent to the sum of$2,384,112.81. 32. Defendants believe DMG has unspent monies on hand from property sales proceeds paid it by or on behalf of Defendants. 33. Defendants have requested DMG account for Creditors' Trust funds provided it,state the amount of Creditors'Trust monies on hand,and state what Creditors' Trust funded reclamation work, if any,remains to be done in Coal Basin. DMG refuses to either account for Creditors' Trust funds received,for such monies on hand, or state what such funded reclamation work,if any,remains to be done. 34. The bankruptcy liquidation PLAN mandates development of a"Reclamation Plan"and its"schedule"be negotiated among the"Debtor[MCR],the DMG,and the MLRB." (PLAN§4.3.4.)Despite repeated requests on behalf of MCR,DMG has neglected and refused to negotiate a "Reclamation Plan" and "schedule" to achieve "completion of principal reclamation activity at the Mine Site prior to December 1, 1996" as required by the bankruptcy liquidation PLAN,id. 35. In furtherance of the bankruptcy liquidation PLAN, several parcels of real property owned by MCR were sold. Parts of the proceeds from these sales have been paid to DMG, and parts of sale proceeds have been deposited in an escrow account agreed to between Plaintiffs and Defendants and held by Stewart Title of Aspen,Inc.,as escrow agent, in connection with parts of Plaintiffs' unpaid ad valorem taxes all as provided by an"Escrow Agreement", dated July 30, 1996 (Complaint Exhibit L), amended by an "Amendment to Escrow Agreement", dated April 29, 1997 (Answer Exhibit 6), and further amended by a "Second Amendment to Escrow Agreement", dated June 30, 1997 (Answer Exhibit 8). The principal sums of$462,634.98,$163,609.58 and$9,468.21,respectively,have been deposited with Stewart Title of Aspen, Inc. to be held in accordance with the terms of the "Escrow Agreement" and its two amendments. 36. Part of the relief sought by this action is a disposition of escrowed funds(see e.g.,amended answer,third counterclaim¶ 142). However,it is impossible for this Court to make a correct distribution of escrowed funds without an accounting by DMG. CIVIL No.97 cv 131-3 -7- THIRD-PARTY COMPLAINT