COMMITMENTS AND CONTINGENCIES | 12 Months Ended |
Dec. 31, 2013 |
COMMITMENTS AND CONTINGENCIES: | ' |
Commitments and Contingencies | ' |
20. Commitments and Contingencies |
WARRANTY: |
Tyree’s contracts with its customers usually contain a written or implied warranty on workmanship for one year. Subcontractors and parts suppliers used by Tyree generally warrant the parts they supply or services they perform for a similar period. At project or service completion, customers provide written or verbal acceptance of Tyree’s work. Warranty related costs experiences by Tyree typically consist of minor adjustments or calibration work. Tyree has accrued approximately $50,000 at December 31, 2013 and 2012 for estimated warranty costs related to completed contracts. |
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LEASE COMMITMENTS |
The Company leases office and warehouse space under non-cancelable operating leases that expire at various dates through 2015. Some of the leases carry renewal provisions and some require the Company to pay maintenance costs or a share of real estate taxes and other costs. Rental payments may be adjusted for increases in taxes and insurance. |
Rent expense on leases containing scheduled rent increases is recognized by amortizing the aggregate lease payments on a straight-line basis over the lease term. This has resulted in deferred rent liabilities of $6,104 and $13,429 as of December 31, 2013 and 2012, respectively, which are included in other liabilities on the consolidated balance sheet. |
Rent expense totaled $1,488,400, $2,113,872 and $1,802,985 for the years ended December 31, 2013, 2012 and 2011, respectively, which includes related party rent of $167,557, $1,257,368 and $1,073,317 for the years ended December 31, 2013, 2012 and 2011, respectively. |
At December 31, 2013, the future minimum lease commitments under non-cancelable operating leases, including leases with related parties, are as follows: |
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Years Ended | | Total | | | | | | | | | | | | | | | | | | | | | | | |
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2014 | | $ | 1,011,758 | | | | | | | | | | | | | | | | | | | | | | | |
2015 | | | 187,838 | | | | | | | | | | | | | | | | | | | | | | | |
2016 | | | 94,989 | | | | | | | | | | | | | | | | | | | | | | | |
2017 | | | 45,126 | | | | | | | | | | | | | | | | | | | | | | | |
2018 | | | — | | | | | | | | | | | | | | | | | | | | | | | |
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| | $ | 1,339,712 | | | | | | | | | | | | | | | | | | | | | | | |
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EMPLOYEE BENEFIT PLANS |
BPI |
BPI established a 401(k) retirement plan (the “BPI Plan”) effective January 1, 2009. The Plan covers employees of the Company who have completed three months (250 hours) of service and have attained the age of twenty-one. All employees hired prior to January 1, 2009 entered the Plan immediately. The BPI Plan permits participants to choose either a traditional pre-tax salary deferral plan or a Roth after-tax deferral plan. BPI does not make matching or discretionary contributions. |
Tyree |
Tyree has established the Tyree Holdings 401(k) Retirement Plan (the “Tyree Plan”), which covers all eligible non-union employees. The Tyree Plan provides for voluntary |
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contributions by eligible employees up to a maximum of 85% of their eligible compensation, subject to the applicable federal limitations. Tyree has the option to make a discretionary contribution each year, but did not make any contributions for the years ended December 31, 2013, 2012 and 2011. |
Tyree has collective bargaining agreements with labor unions. These agreements expired at varying dates through November 30, 2012. In accordance with its collective bargaining agreements, Tyree participates in four multi-employer pension plans and one defined contribution (401k) Plan. These plans provide benefits to substantially all union employees. Such plans are usually administered by a board of trustees comprised of the management of the participating companies and labor representatives. The net pension cost of the pension plans is equal to the annual contribution determined in accordance with the provisions of negotiated labor contracts. Assets contributed to such pension are not segregated or otherwise restricted to provide benefits only to the Tyree’s employees. The risks of participating in these multi-employer pension plans are different are different from single-employer plans in the following aspects: 1) assets contributed to the multi-employer pension plan by one employer may be used to provide benefits to employees of other participating employers; 2) if a participating employer stops contributing to the plan, the unfunded obligations of the plan may be borne by the remaining participant employers; and 3) if Tyree chooses to stop participating in some of its multi-employer pension plans, Tyree may be required to pay those plans an amount based on the underfunded status of the plan, which is referred to as a withdrawal liability. |
Tyree’s participation in these pension plans for the annual period ended December 31, 2013, 2012 and 2011 is outlined in the table below. The “EIN/Pension Plan Number” column provides the Employee Identification Number (“EIN”). And the three-digit plan number. Unless otherwise noted, the most recent Pension Protection Act (“PPA”) zone status available in 2013, 2012 and 2011 is for the plan’s year-end at December 31, 2013, 2012 and 2011, respectively. The zone status is based on information that Tyree received from the plan and is certified by the plan’s actuary. Among other factors, plans in the red zone are generally less than 65% funded, plans in the yellow zone are less than 80% funded. The “FIP/RP Status Pending/Implemented” column indicates plans for which a financial improvement plan (“FIP”) or a rehabilitation plan (“RP”) is either pending or has been implemented. The last column lists the expiration dates of the collective bargaining agreements to which the plans are subject. |
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Pension Fund | | EIN/PensionPlan Number | | | | FIP/RPStatusPending/Implemented | | | | | SurchargeImposed | | ExpirationDate ofCollective-BargainingAgreement |
Pension Protection | Tyree Contributions |
Act Zone Status | |
| | 2013 | | 2012 | | 2011 | | | 2013 | | | 2012 | | | 2011 | | | |
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Plumbers Local Union No.200 | | | | | | | | | | | | | | | | | | | | | | | | | | |
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Pension Fund | | 11-3125387/001 | | Yellow (1) | | Yellow (1) | | Yellow (1) | | Yes | | | 6,402 | | | | 29,915 | | | | 29,915 | | | No | | 4/30/12 |
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Local 99- National Electrical Benefit Fund | | 53-0181657/001 | | Green | | Green | | Green | | NA | | | 1,221 | | | | 26,602 | | | | 26,602 | | | No | | 11/30/12 |
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Local 1 National Pension Fund | | 11-25411118/001 | | Yellow (1) | | Yellow (1) | | Yellow (1) | | Yes | | | 2,272 | | | | 25,923 | | | | 25,923 | | | No | | 4/30/12 |
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Total contributions: | | | | | | | | | | | | | 9,895 | | | | 82,440 | | | | 82,440 | | | | | |
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CONTINGENCIES/LEGAL MATTERS: |
Amincor and its subsidiaries are, from time to time, involved in ordinary and routine litigation. Management presently believes that the ultimate outcome of these proceedings individually or in the aggregate, will not have a material adverse effect on the Company’s financial position, results of operations or cash flows. Nevertheless, litigation is subject to inherent uncertainties and unfavorable rulings could occur. An unfavorable ruling could include monetary damages and, in such event, could result in a material adverse impact on the Company’s financial position, results of operations or cash flows for the period in which the ruling occurs. |
AMINCOR |
On July 6, 2012, SFR Holdings, Ltd., Eden Rock Finance Master Limited, Eden Rock Asset Based Lending Master Ltd., Eden Rock Unleveraged Finance Master Limited, SHK Asset Backed Finance Limited, Cannonball Plus Fund Limited and Cannonball Stability Fund, LP (collectively, the “Plaintiffs”) commenced an action in the Supreme Court of the State of New York County of New York against Amincor, Inc., Amincor Other Assets, Inc., their officers and directors, John R. Rice III, Joseph F. Ingrassia and Robert L. Olson and various other entities affiliated with or controlled directly or indirectly by John R. Rice III and Joseph F. Ingrassia (collectively the “Defendants”). Plaintiffs allege that Defendants engaged in wrongful acts, including fraudulent inducement, fraud, breach of fiduciary duty, unjust enrichment, fraudulent conveyance and breach of contract. Plaintiffs are seeking compensatory damages in an amount in excess of $150,000 to be determined at trial. Litigation is pending. Management believes that this lawsuit has no merit or basis and intends to vigorously defend it. |
BPI |
In connection with Baker’s Pride’s USDA loan application, BPI had Environmental Site Assessments performed on the property where the Mt. Pleasant Street Bakery, Inc. resides, as required by BPI’s prospective lender. A Phase II Environmental Site Assessment was completed on October 31, 2011 and was submitted to the Iowa Department of Natural Resources (“IDNR”) for their review. IDNR requested that a Tier Two Site Cleanup Report (“Tier Two”) be issued and completed in order to better understand what environmental hazards exist on the property. The Tier Two was completed on February 3, 2012 and was submitted to IDNR for further review. Management’s latest correspondence with IDNR, dated March 21, 2012, required additional environmental remediation in order to be in compliance with IDNR’s regulations. Management has retained the necessary environmental consultants to become compliant with IDNR’s request. Due to the nature of the liability, the remediation work is 100% eligible for refund from IDNR’s Innocent Landowner Fund. As such, there is no direct liability related to the cleanup of the hazard. |
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TYREE |
One of Tyree’s largest customers, Getty Petroleum Marketing, Inc. (“GPMI”) filed for bankruptcy protection on December 5, 2011. As of that date, Tyree had a pre-petition receivable of $1,515,401, which was subsequently written-off due to the uncertainty of collection. Additionally, Tyree has a post-petition administrative claim for $593,709. A Proof of Claim was filed with the Bankruptcy court on Tuesday, April 10, 2012. On August 27, 2012, the United States Bankruptcy Court for the Southern District of New York confirmed GPMI’s Chapter 11 plan of liquidation offered by its unsecured creditors committee, overruling the remaining objections. The plan provides for all of the debtors’ property to be liquidated over time and for the proceeds to be allocated to creditors. Any assets not distributed by the effective date will be held by a liquidating trust and administered by a liquidation trustee, who will be responsible for liquidating assets, resolving disputed claims, making distributions, pursuing reserved causes of action and winding up GPMI’s affairs. As an unsecured creditor, Tyree may never collect or may only collect a small percentage of the pre and post-petition amounts owed. To date, Tyree has not been notified of any intent by the United States Bankruptcy Court for the Southern District of New York to clawback any amounts paid to Tyree pre-petition. On April 4, 2014, Tyree sold its general and administrative claims to a third party for the aggregate sum of $553,662. |
In December 2013, Tyree Environmental Corp. and Tyree Service Corp. (“Tyree entities”) were sued by liquidating trustee of GPMI for recovery of preferential transfers in the respective amounts of $1,147,154 and $2,479,755. On March 27, 2014, the bankruptcy liquidating trustee entered into forbearance agreements with the Tyree entities with respect to the preference actions until June 2014, with the understanding that the forbearance periods will be extended and the actions will ultimately be dismissed if the Tyree entities continue to not voluntarily assist Getty Realty in litigation against GPMI. Management believes that this recovery of preferential transfers has no merit or basis. |
Tyree currently has 110 full-time employees and 3 part time employees, some of whom are represented by six different collective bargaining agreements. Tyree has unpaid obligations for union dues of approximately $1.3 million. Tyree management does not dispute that benefits are due and owing to the respective unions. Labor contracts expired on December 31, 2012 for five of the six bargaining units. Local 355 has entered into a 36 month payment agreement with Tyree Services, Inc., to settle Tyree’s obligation. The monthly payment is $20,000 per month until paid in full. Local 200 has agreed to settlement its law suit for a $25,000 down payment and monthly payments of $5,000 per month for 28 months. Tyree Services, Inc. will sign the settlement and Tyree Holdings, Inc. will act as a guarantor. Local 99 has entered into a verbal settlement agreement with Tyree Services, Inc. calling for monthly payments of $4,000 per month. 24 payments remain. Local 138 has entered into a verbal settlement agreement with Tyree Services, Inc. Call for monthly payments of $10,000 per month for 18 months. Local 25 has agreed to a continuance of their lawsuit while Tyree’s counsel and Local 25 counsel draft a settlement agreement. Management anticipates that the agreement will call for payments of $5,000 per month for 24 months. |
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A variety of unsecured vendors have filed suit for non-payment of outstanding invoices totaling approximately $2.9 million as of December 31, 2013, which are reflected as liabilities on the Company’s consolidated balance sheet. Each of these actions is handled on a case by case basis, with settlement and payment plans ranging from a few months for smaller claims to up to five years for larger claims. |
Tyree’s services are regulated by federal, state and local laws enacted to regulate discharge of materials into the environment, remediation of contaminated soil and groundwater or otherwise protect the environment. The regulations put Tyree or Tyree’s predecessor companies at risk for becoming a party to legal proceedings involving customers or other interested parties. The issues involved in such proceedings generally relate to alleged responsibility arising under federal or state laws to remediate contamination at properties owned or operated either by current or former customers or by other parties who allege damages. To limit its exposure to such proceedings, Tyree purchases, for itself and Tyree’s predecessor companies, site pollution, pollution and professional liability insurance. Aggregate limits, per occurrence limits and deductibles for this policy are $10,000,000, $5,000,000 and $50,000, respectively. |
ESI |
The Volkl license agreement was terminated in September 2011 and concurrently the Strategic Alliance Agreement with Samsung America CT, Inc. (“Samsung”) was also terminated. Volkl is seeking a $400,000 royalty payment. Epic has initiated counterclaims against the various parties, including but not limited to Samsung, seeking damages for, including but not limited to infringement, improper use of company assets and breach of fiduciary duty. Volkl was successful in obtaining a judgment against Epic Sports International, Inc. and a confirmation of the Arbitration is presently pending in Federal Court. Management believes that this matter and the Frost matter below will eventually be settled out of court for less than the royalty and damages amounts sought. |
On September 28, 2012, Sean Frost (“Frost”), the former President of Epic Sports International, Inc., filed a complaint against Epic Sports International Inc., Amincor, Inc. and Joseph Ingrassia (collectively, the “Defendants”). The first cause of action of the complaint is a petition to compel arbitration for unpaid compensation and benefits pursuant to Frost’s employment agreement. The second cause of action of the complaint is for breach of contract for alleged non-payment of expenses, vacation days and assumption of certain debts. The third cause of action of the complaint is for violation of the California Labor Code for failure to pay wages. In addition, Frost is seeking among other things, damages, attorneys’ fees and costs and expenses. As of December 31, 2013, the Defendants have answered the complaint and the lawsuit has been dismissed pending parties’ agreement to arbitrate the matter. Frost has not yet requested arbitration or otherwise sought to initiate arbitration proceedings. The parties have been waiting since July 2013 for Frost to initiate arbitration. Defendants believe that this arbitration has no merit or basis and intend to vigorously defend. |
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IMSC/OTHER ASSETS |
Capstone Business Credit, LLC, a related party, is the plaintiff (on behalf of Amincor Other Assets, Inc.) in a foreclosure action against Imperia Family Realty, LLC (“IFR”). IFR is related to the former owners of Masonry’s business. In November 2011, a Judgment of Foreclosure was granted by the court ordering that the IMSC property in Pelham Manor, New York (the “Property”) be sold at public auction. As of the date of this filing, the deed to the Property has been recorded in the name of Amincor Other Assets, Inc. with the office of the Westchester County Clerk. |
A former principal of Imperia Bros., Inc. (a predecessor company of Masonry) filed a notice of appeal dated November 14, 2011 with the court contesting the Judgment of Foreclosure. On June 19, 2013, the parties in the above action agreed to a settlement in principle, which resolves the remaining causes of action and dismisses the third party complaint and the declaratory judgment complaint, with prejudice. |