13. COMMITMENTS AND CONTINGENCIES | 6 Months Ended |
Jun. 30, 2014 |
Commitments and contingencies {1} | ' |
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 |
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. |
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AMINCOR |
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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 is vigorously defending it. |
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BPI |
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In connection with a United States Department of Agriculture ("USDA") loan |
application, BPI had Environmental Site Assessments performed on the property |
where its Mt. Pleasant Street Bakery, Inc. operates, as required by the |
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 |
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On December 5, 2011, Tyree's largest customer, Getty Petroleum Marketing, Inc. |
("GPMI") filed for Chapter 11 bankruptcy protection. 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. 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. |
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In December 2013, Tyree Environmental Corp. and Tyree Service Corp. ("Tyree |
entities") were sued by the 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 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. |
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On March 22, 2013 Fleetmatics USA, Inc. brought an action in the Supreme Court |
in the State of New York, County of Suffolk against Tyree Equipment Corp. and |
Tyree Services Corp. seeking $313,176 plus interest and costs for services |
rendered. In June 26, 2013 a default judgment was entered against Tyree |
Equipment Corp. and Tyree Services Corp. in the amount of $328,083. On February |
24, 2014 All Safe Protection, Inc. brought action against Tyree Holdings, Corp. |
and other Tyree entities for services rendered to Tyree in the amount of |
$236,818 plus interest and costs. On March 3, 2014 American Express Travel |
related Services Company brought suit in the Supreme Court in the State of New |
York, County of Nassau against Tyree Holdings Corp. seeking the sum of $142,235 |
plus interest and cost for unpaid interest and charges. Management is attempting |
to finalize settlement agreements for these obligations. Fleetmatics has agreed |
to a five year payment plan based on a 60 month payment schedule with a balloon |
payment at the end of the third year. American Express has not agreed to a |
payment plan and negotiations are ongoing. Management has reached a settlement |
agreement with All Safe which provides for monthly payments of less than $5,000 |
and which releases Tyree Environmental Services from the All Safe claim. |
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Tyree currently has 93 full-time employees and 3 part time employees, some of |
whom are represented by different collective bargaining agreements. Tyree has |
unpaid obligations for union dues of approximately $1.2 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 settle its claim |
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 of |
which 24 payments remain. Local 138 has entered into a verbal settlement |
agreement with Tyree Services, Inc. which calls for monthly payments of $10,000 |
per month for 18 months. Local 25 has agreed to a continuance of its action |
against Tyree while Tyree's counsel and Local 25 counsel draft a settlement |
agreement. |
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A variety of unsecured vendors have filed suit for non-payment of outstanding |
invoices totaling approximately $2.8 million as of June 30, 2014, 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. |
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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. |
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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. |
Concurrently, a license agreement along with a Strategic Alliance Agreement with |
Samsung America CT, Inc. ("Samsung") was terminated. The licensor, Volkl, is |
seeking a $400,000 royalty payment. ESI 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 |
ESI 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. |
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On September 28, 2012, Sean Frost ("Frost"), the former President of Epic Sports |
International, Inc., filed a complaint to compel arbitration regarding breach of |
employment contract and related breach of labor code claims and for an award of |
compensatory damages in the Superior Court of the State of California, County of |
San Diego 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 |
due and owing. Frost is seeking among other things, damages, attorneys' fees and |
costs and expenses. Frost initiated arbitration proceedings in April 2014. As of |
June 30, 2014, the Defendants have answered the complaint and the lawsuit has |
been dismissed pending parties' agreement to arbitrate the matter. Defendants |
believe that this arbitration has no merit or basis and intend to vigorously |
defend. |
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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 |
were discontinued in 2011, $533,571 for outstanding delinquent real estate |
taxes, including a significant amount for penalties, interest and fees that have |
accrued. A settlement proposal, whereby the City of Lindsay would retain TFF's |
$206,666 deposit as settlement and release in full of all outstanding |
obligations with the City of Lindsay. |