COMMITMENTS AND CONTINGENCIES | 3 Months Ended |
Mar. 31, 2014 |
COMMITMENTS AND CONTINGENCIES: | ' |
Commitments and Contingencies | ' |
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13. COMMITMENTS AND CONTINGENCIES |
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CONTINGENCIES/LEGAL MATTERS: |
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Amincor and its subsidiaries are, from time to time, involved in ordinary and |
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routine litigation. Management presently believes that the ultimate outcome of |
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these proceedings individually or in the aggregate, will not have a material |
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adverse effect on the Company's financial position, results of operations or |
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cash flows. Nevertheless, litigation is subject to inherent uncertainties and |
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unfavorable rulings could occur. An unfavorable ruling could include monetary |
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damages and, in such event, could result in a material adverse impact on the |
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Company's financial position, results of operations or cash flows for the period |
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in which the ruling occurs. |
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AMINCOR |
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On July 6, 2012, SFR Holdings, Ltd., Eden Rock Finance Master Limited, Eden Rock |
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Asset Based Lending Master Ltd., Eden Rock Unleveraged Finance Master Limited, |
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SHK Asset Backed Finance Limited, Cannonball Plus Fund Limited and Cannonball |
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Stability Fund, LP (collectively, the "Plaintiffs") commenced an action in the |
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Supreme Court of the State of New York County of New York against Amincor, Inc., |
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Amincor Other Assets, Inc., their officers and directors, John R. Rice III, |
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Joseph F. Ingrassia and Robert L. Olson and various other entities affiliated |
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with or controlled directly or indirectly by John R. Rice III and Joseph F. |
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Ingrassia (collectively the "Defendants"). Plaintiffs allege that Defendants |
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engaged in wrongful acts, including fraudulent inducement, fraud, breach of |
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fiduciary duty, unjust enrichment, fraudulent conveyance and breach of contract. |
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Plaintiffs are seeking compensatory damages in an amount in excess of $150,000 |
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to be determined at trial. Litigation is pending. Management believes that this |
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lawsuit has no merit or basis and is vigorously defending it. |
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BPI |
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In connection with a United States Department of Agriculture ("USDA") loan |
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application, BPI had Environmental Site Assessments performed on the property |
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where its Mt. Pleasant Street Bakery, Inc. operates, as required by the |
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prospective lender. A Phase II Environmental Site Assessment was completed on |
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October 31, 2011 and was submitted to the Iowa Department of Natural Resources |
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("IDNR") for their review. IDNR requested that a Tier Two Site Cleanup Report |
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("Tier Two") be issued and completed in order to better understand what |
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environmental hazards exist on the property. The Tier Two was completed on |
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February 3, 2012 and was submitted to IDNR for further review. Management's |
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latest correspondence with IDNR, dated March 21, 2012, required additional |
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environmental remediation in order to be in compliance with IDNR's regulations. |
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Management has retained the necessary environmental consultants to become |
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compliant with IDNR's request. Due to the nature of the liability, the |
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remediation work is 100% eligible for refund from IDNR's Innocent Landowner |
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Fund. As such, there is no direct liability related to the cleanup of the |
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hazard. |
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TYREE |
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On December 5, 2011, Tyree's largest customer, Getty Petroleum Marketing, Inc. |
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("GPMI") filed for Chapter 11 bankruptcy protection. As of that date, Tyree had |
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a pre-petition receivable of $1,515,401, which was subsequently written-off due |
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to the uncertainty of collection. Additionally, Tyree has a post-petition |
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administrative claim for $593,709. A Proof of Claim was filed with the |
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Bankruptcy court on Tuesday, April 10, 2012. On August 27, 2012, the United |
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States Bankruptcy Court for the Southern District of New York confirmed GPMI's |
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Chapter 11 plan of liquidation offered by its unsecured creditors committee. The |
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plan provides for all of the debtors' property to be liquidated over time and |
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for the proceeds to be allocated to creditors. Any assets not distributed by the |
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effective date will be held by a liquidating trust and administered by a |
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liquidation trustee, who will be responsible for liquidating assets, resolving |
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disputed claims, making distributions, pursuing reserved causes of action and |
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winding up GPMI's affairs. As an unsecured creditor, Tyree may never collect or |
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may only collect a small percentage of the pre and post-petition amounts owed. |
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To date, Tyree has not been notified of any intent by the United States |
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Bankruptcy Court for the Southern District of New York to clawback any amounts |
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paid to Tyree pre-petition. On April 4, 2014, Tyree sold its general and |
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administrative claims to a third party for the aggregate sum of $553,662. |
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In December 2013, Tyree Environmental Corp. and Tyree Service Corp. ("Tyree |
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entities") were sued by the liquidating trustee of GPMI for recovery of |
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preferential transfers in the respective amounts of $1,147,154 and $2,479,755. |
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On March 27, 2014, the bankruptcy liquidating trustee entered into forbearance |
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agreements with the Tyree entities with respect to the preference actions until |
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June 2014, with the understanding that the forbearance periods will be extended |
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and the actions will ultimately be dismissed if the Tyree entities continue to |
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not voluntarily assist Getty Realty in litigation against GPMI. Management |
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believes that this recovery of preferential transfers has no merit or basis. |
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Tyree currently has 110 full-time employees and 3 part time employees, some of |
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whom are represented by six different collective bargaining agreements. Tyree |
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has unpaid obligations for union dues of approximately $1.2 million. Tyree |
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management does not dispute that benefits are due and owing to the respective |
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unions. Labor contracts expired on December 31, 2012 for five of the six |
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bargaining units. Local 355 has entered into a 36 month payment agreement with |
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Tyree Services, Inc., to settle Tyree's obligation. The monthly payment is |
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$20,000 per month until paid in full. Local 200 has agreed to settle its claim |
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for a $25,000 down payment and monthly payments of $5,000 per month for 28 |
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months. Tyree Services, Inc. will sign the settlement and Tyree Holdings, Inc. |
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will act as a guarantor. Local 99 has entered into a verbal settlement agreement |
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with Tyree Services, Inc. calling for monthly payments of $4,000 per month of |
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which 24 payments remain. Local 138 has entered into a verbal settlement |
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agreement with Tyree Services, Inc. which calls for monthly payments of $10,000 |
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per month for 18 months. Local 25 has agreed to a continuance of its action |
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against Tyree while Tyree's counsel and Local 25 counsel draft a settlement |
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agreement. Management anticipates that the agreement will call for payments of |
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$5,000 per month for 24 months. |
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A variety of unsecured vendors have filed suit for non-payment of outstanding |
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invoices totaling approximately $2.7 million as of March 31, 2014, which are |
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reflected as liabilities on the Company's consolidated balance sheet. Each of |
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these actions is handled on a case by case basis, with settlement and payment |
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plans ranging from a few months for smaller claims to up to five years for |
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larger claims. |
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Tyree's services are regulated by federal, state and local laws enacted to |
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regulate discharge of materials into the environment, remediation of |
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contaminated soil and groundwater or otherwise protect the environment. The |
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regulations put Tyree or Tyree's predecessor companies at risk for becoming a |
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party to legal proceedings involving customers or other interested parties. The |
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issues involved in such proceedings generally relate to alleged responsibility |
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arising under federal or state laws to remediate contamination at properties |
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owned or operated either by current or former customers or by other parties who |
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allege damages. To limit its exposure to such proceedings, Tyree purchases, for |
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itself and Tyree's predecessor companies, site pollution and professional |
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liability insurance. Aggregate limits, per occurrence limits and deductibles for |
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this policy are $10,000,000, $5,000,000 and $50,000, respectively. |
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EPIC SPORTS INTERNATIONAL, INC. ("ESI") |
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The Company discontinued the operations of ESI, a former subsidiary in 2011. |
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Concurrently, a license agreement along with a Strategic Alliance Agreement with |
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Samsung America CT, Inc. ("Samsung") was terminated. The licensor, Volkl, is |
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seeking a $400,000 royalty payment. ESI has initiated counterclaims against the |
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various parties, including but not limited to Samsung, seeking damages for, |
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including but not limited to infringement, improper use of company assets and |
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breach of fiduciary duty. Volkl was successful in obtaining a judgment against |
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ESI and a confirmation of the Arbitration is presently pending in Federal Court. |
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Management believes that this matter and the Frost matter below will eventually |
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be settled out of court for less than the royalty and damages amounts sought. |
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On September 28, 2012, Sean Frost ("Frost"), the former President of Epic Sports |
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International, Inc., filed a complaint to compel arbitration regarding breach of |
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employment contract and related breach of labor code claims and for an award of |
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compensatory damages in the Superior Court of the State of California, County of |
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San Diego against Epic Sports International Inc., Amincor, Inc. and Joseph |
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Ingrassia (collectively, the "Defendants"). The first cause of action of the |
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complaint is a petition to compel arbitration for unpaid compensation and |
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benefits pursuant to Frost's employment agreement. The second cause of action of |
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the complaint is for breach of contract for alleged non-payment of expenses, |
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vacation days and assumption of certain debts. The third cause of action of the |
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complaint is for violation of the California Labor Code for failure to pay wages |
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due and owing. Frost is seeking among other things, damages, attorneys' fees and |
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costs and expenses. As of March 31, 2014, the Defendants have answered the |
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complaint and the lawsuit has been dismissed pending parties' agreement to |
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arbitrate the matter. Frost initiated arbitration proceedings in April 2014. |
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Defendants believe that this arbitration has no merit or basis and intend to |
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vigorously defend. |
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IMSC/OTHER ASSETS |
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Capstone Business Credit, LLC, a related party, was the plaintiff (on behalf of |
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Amincor Other Assets, Inc.) in a foreclosure action against Imperia Family |
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Realty, LLC ("IFR"). IFR is related to the former owners of a business whose |
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operations were discontinued in 2011. As of December 31, 2009, a mortgage |
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related to an IFR property was assigned to Amincor, Inc. and thereafter to |
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Amincor Other Assets, Inc. In November 2011, a Judgment of Foreclosure was |
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granted by the court ordering that the property (the "Property") be sold at |
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public auction. |
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In accordance with the Judgment of Foreclosure a public auction sale of the |
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Property was held on January 10, 2012. Capstone Business Credit, LLC, on behalf |
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of Amincor Other Assets, Inc., bid the amount of their lien and was the |
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successful bidder and title to the property was transferred to Amincor Other |
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Assets, Inc. |
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TULARE FROZEN FOODS, LLC ("TFF") |
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The City of Lindsay, California has invoiced TFF, a business whose operations |
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were discontinued in 2011, $533,571 for outstanding delinquent real estate |
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taxes, including a significant amount for penalties, interest and fees that have |
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accrued. A settlement proposal, whereby the City of Lindsay would retain TFF's |
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$206,666 deposit as settlement and release in full of all outstanding |
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obligations was sent to the City of Lindsay for review on March 29, 2012. As of |
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the date of this filing, no settlement has been reached. |
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