COMMITMENTS AND CONTINGENCIES | 9 Months Ended |
Sep. 30, 2014 |
COMMITMENTS AND CONTINGENCIES: | ' |
Commitments and Contingencies | ' |
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12. COMMITMENTS AND CONTINGENCIES |
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Contingencies/Legal Matters: |
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The Company from time to time is involved in ordinary and routine litigation. |
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Management presently believes that the ultimate outcome of these proceedings |
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individually or in the aggregate, will not have a material adverse effect on the |
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Company's condensed consolidated 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 and has not accrued |
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for these compensatory damages. Defendants have filed a motion to dismiss the |
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complaint in this action. Further proceedings in this action are stayed pending |
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determination of Defendants motion. |
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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. BPI is monitoring and remediating the environmental hazard in accordance |
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with the remediation plan as outlined by external consultants and with IDNR's |
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approval. |
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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. On April 4, 2014, Tyree sold its |
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general and administrative claims to a third party for the aggregate sum of |
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$553,662.00 |
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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 with |
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the understanding that the forbearance periods will be extended and the actions |
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will ultimately be dismissed if the Tyree entities continue to not voluntarily |
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assist Getty Realty in litigation against GPMI. Management believes that this |
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lawsuit has no merit or basis and will adhere to the terms of the forbearance |
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agreements such that further litigation will not occur. |
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On March 22, 2013 Fleetmatics USA, Inc. brought an action in the Supreme Court |
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in the State of New York, County of Suffolk against Tyree Equipment Corp. and |
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Tyree Services Corp. seeking $313,176 plus interest and costs for services |
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rendered. On June 26, 2013 a default judgment was entered against Tyree |
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Equipment Corp. and Tyree Services Corp. in the amount of $328,083. On February |
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24, 2014, All Safe Protection, Inc. brought action against Tyree Holdings, Corp. |
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and other Tyree entities for services rendered to Tyree in the amount of |
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$236,818 plus interest and costs. On March 3, 2014, American Express Travel |
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related Services Company brought suit in the Supreme Court in the State of New |
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York, County of Nassau against Tyree Holdings Corp. seeking the sum of $142,235 |
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plus interest and cost for unpaid interest and charges. Management is attempting |
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to finalize settlement agreements for these obligations. Fleetmatics has agreed |
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to a five year payment plan based on a 60 month payment schedule with a balloon |
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payment at the end of the third year. American Express has not agreed to a |
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payment plan and negotiations are ongoing. Management has reached a settlement |
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agreement with All Safe which provides for monthly payments of less than $5,000 |
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which, in the event of default allows entry of judgment against all Defendants |
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except Tyree Environmental Services, which effectively releases Tyree |
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Environmental Services from the All Safe claim. All of the above amounts are |
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accrued as September 30, 2014. |
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On September 22, 2014, Westchester Fire Insurance Company commenced an action |
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against Tyree Service Corp., Tyree Environmental Corp., Tyree Holdings Corp., |
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Amincor, Inc. and Tyree Equipment Corp. to recover $310,312 in unpaid premiums |
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owed by Tyree and guaranteed by Amincor. The Company is negotiating a payment |
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plan to satisfy the obligation based on a five year amortization schedule with a |
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balloon payment after two years and anticipates that a payment plan will be |
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satisfactorily concluded. |
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Tyree has unpaid obligations for union dues of approximately $1.2 million |
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dollars which are included in accrued expenses at September 30, 2014. Tyree |
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management does not dispute that benefits are due and owing to the respective |
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unions and is negotiating payment plans with the various unions to satisfy these |
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obligations. |
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As of September 30, 2014 the Company owes approximately $2.9 million to |
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unsecured vendors which amount is reflected as liabilities on the Company's |
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condensed consolidated balance sheet. Although several of these unsecured |
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vendors have commenced actions to recover the outstanding monies due; the |
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majority of the unsecured creditors have not instituted suit. Each of these |
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outstanding obligations including the litigations is handled on a case by case |
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basis, with settlement and payment plans ranging from a few months for smaller |
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claims to up to five years for larger claims. |
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On September 9, 2014 a former employee of Tyree commenced a lawsuit in the |
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United States District Court for the Eastern District of New York against |
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Registrant its Tyree subsidiaries and their officers alleging various ERISA |
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violations and seeking class action certification. The alleged amounts in |
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controversy are not material and management believes that class action |
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certification will not be granted. |
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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. |
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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"). Frost is seeking among other things, |
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damages, attorneys' fees and costs and expenses. Frost initiated arbitration |
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proceedings in April 2014. As of September 30, 2014, the Defendants have |
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answered the complaint and the lawsuit has been dismissed pending parties' |
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agreement to arbitrate the matter. Defendants believe that this arbitration has |
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no merit or basis and intend to vigorously defend and therefore has not accrued |
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for a loss in relation to this matter. |
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TULARE FROZEN FOODS, LLC ("TFF") |
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The City of Lindsay, California had 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 had |
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accrued. A settlement pursuant to which the City of Lindsay would retain TFF's |
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$206,666 deposit as settlement and release in full of all of Tulare's |
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outstanding obligations to the City of Lindsay was executed on July 25, 2014. |
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Tulare had formerly written-off its $206,666 deposit and as such Tulare recorded |
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a gain of $497,331 as a result of this transaction during the three and nine |
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month period ended September 30, 2014. |