FORM 10-KSB
|X| Annual report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934. For the Fiscal Year ended December 31, 2003.
|_| Transition report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934. For the transition period from ______ to ________.
Commission file number: 0-26828
MORO CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Delaware 51-0338736 (State or other jurisdiction (I.R.S. Employer Identification No.) of organization) The Woods, Suite 1000 994 Old Eagle School Road Wayne, Pennsylvania 19087 (Address of principal executive offices and zip code) (484)367-0300 (Issuer's telephone number) |
Securities registered under Section 12(b) of the Act: None
Securities registered under Section 12(g) of the Act:
Common Stock, Par Value $.001 per share
(Title of each Class)
Check whether the issuer (1) has filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the past 12 months (or such
shorter period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days. YES [x] NO[ ]
Check if disclosure of delinquent filers in response to Item 405 of Regulation S-B is not contained in this form, and no disclosure will be contained, to the best of registrant's knowledge, in a definitive proxy or information statement incorporated by reference in Part III of this Form 10-K or amendment to this Form 10-K [x]
Issuer's revenues for its most recent fiscal year: $23,118,968.
As of April 13, 2004, the aggregate market value of the voting stock held by non-affiliates computed by reference to the price at which the stock was sold, or the average bid and asked prices of such stock was $888,203.
Check whether the issuer has filed all documents and reports to be filed by
Section 12, 13, or 15(d) of the Exchange Act after the distribution of
securities under a plan confirmed by the court. Yes [x] No[ ].
As of April 13, 2004, the number of shares outstanding of each class of common equity was 6,250,000 shares of Common Stock, par value $.001.
PART I
Item 1. Description of Business.
The Company was organized as a Delaware corporation on February 12, 1992 and on June 7, 1999, the Company changed its name from Food Court Entertainment Network, Inc. to Moro Corporation.
From May 1999 through March 31, 2000, the Company was an inactive public shell. As of April 1, 2000, the Company, through its newly formed subsidiary, Moro Acquisition Corp. ("MAC"), purchased substantially all of the operating assets and assumed certain liabilities of J.M. Ahle Co., Inc., a New Jersey corporation, for $1,406,212. At the time of the transaction, MAC changed its name from MAC to J.M Ahle Co., Inc. ("Ahle"). Ahle is a fabricator and distributor of reinforcing steel to contractors and subcontractors for use in the construction of highways, airports, bridges, treatment facilities, schools, public facilities, industrial and commercial buildings, and other structures.
On October 1, 2002, Moro/Rado Acquisition Corp. ("Moro/Rado"), a wholly-owned subsidiary of Moro Corporation (the "Company), purchased substantially all of the operating assets and assumed certain liabilities of Rado Enterprises, Inc. ("Rado"), pursuant to an Asset Purchase Agreement dated July 31, 2002 by and among Moro/Rado, Rado and Antonio D. Rado for $2,424,000. Rado is a mechanical contractor engaged in various plumbing, heating, ventilation and air conditioning projects for commercial, industrial and institutional buildings located in northeastern and central Pennsylvania. Moro/Rado intends to continue the business of Rado as conducted prior to the acquisition.
Competition
The Construction Materials and Mechanical Contracting business are highly competitive. The Company competes with numerous organizations of varying sizes. The Company competes primarily on the basis of price, location, quality, service and reputation.
Labor Contracts
Certain employees of Rado are represented by labor unions. As of December 31, 2003, the Company is not aware of any labor disputes.
Sources of Raw Materials
The Company has experienced no problems with the availability of raw materials and has various sources for supplies. During 2003, the Company had two vendors that accounted for approximately 25% of total purchases.
Areas of Sales
Sales from the Construction Materials segment are derived from customers located in New Jersey and southern New York. Sales from the Mechanical Contracting segment are derived from customers located in eastern and central Pennsylvania.
Employees
As of December 31, 2003, the Company had 67 employees, 21 of which were employed by Ahle on a full time basis and 46 of which were employed by Rado on a full time basis.
Item 2. Description of Properties.
The Company is headquartered at the offices of Colmen Menard Company, Inc. ("Colmen Menard") at 994 Old Eagle School Road, Suite 1000, Wayne, Pennsylvania 19087, telephone 484-367-0300, fax 484-367-0305. Colmen Menard, which is owned by David Menard, provides offices and facilities without cost to the Company.
Ahle operates from an approximately 21,700 square foot leased warehouse facility and contiguous 3.4 acre yard site located on Herman Street, South River, New Jersey. The lease provides for a rental payment of $3,953 per month plus utilities (real estate taxes and insurance are paid for by the landlord) and expires on April 30, 2006.
Rado operates from an approximately 33,160 square foot leased facility located at Columbia Industrial Park, 20 Industrial Drive, Bloomsburg, Pennsylvania 17815. The lease provides for a rental payment of $10,000 per month with taxes, utilities and insurance also being paid for by Rado, and expires on May 21, 2008. The owner of the premises is JAD Associates, LLC, a Pennsylvania limited liability company, owned by David Menard and his wife.
Item 3. Legal Proceedings.
The Company is not involved in any pending legal proceedings.
Item 4. Submission of Matters to a Vote of Security Holders.
There were no matters submitted to a vote of security holders.
PART II
Item 5. Market for Common Equity and Related Stockholder Matters.
The authorized capital stock of the Company consists of 25,000,000 shares of Common Stock, par value $.001 per share, and 5,000,000 shares of preferred stock, par value $.001 per share. The Company has not paid and does not contemplate the payment of any dividends in the foreseeable future. The Company's Common Stock is traded on the National Association of Securities Dealer's, Inc. OTC Bulletin Board under the symbol MRCR.OB. The high and low bid prices for the Common Stock during calendar year 2002 and 2003 were as follows:
2002 High Low ---- ---- --- First Quarter (through March 31, 2002) $.36 $.35 Second Quarter (through June 30, 2002) $.70 $.36 Third Quarter (through September 30, 2002) $1.01 $.41 Fourth Quarter (through December 31, 2002) $1.03 $.41 |
2003 ---- First Quarter (through March 31, 2003) $.55 $.35 Second Quarter (through June 30, 2003) $.75 $.34 Third Quarter (through September 30, 2003) $.51 $.30 Fourth Quarter (through December 31, 2003) $.55 $.26 |
These quotations reflect inter-dealer prices, without retail mark-up, mark down or commission, and may not reflect actual transactions.
On December 31, 2003, there were approximately 276 shareholders of record of the Common Stock.
Equity Compensation Plan Information as of December 31, 2003 ------------------------------------------------------------ Number of securities Weighted-average Number of securities to be issued upon exercise price of remaining available exercise of outstanding options, for future issuance outstanding options, warrants and rights under under equity Plan category warrants and rights compensation plans compensation plans ------------- ----------------------- --------------------------- --------------------- Equity Compensation plans approved by security holders 60,000 $0.75 240,000 Equity Compensation plans not approved by security holders - - - ------ ----- ------- Total 60,000 $0.75 240,000 ====== ===== ======= |
(1) In 2000, the Company established an incentive stock option plan (the Plan) and presently has reserved 300,000 shares of the Company's common stock for issuance under the Plan. Options granted pursuant to the Plan and contractual agreements at December 31, 2003 and 2002 were 60,000 and those options were granted to key employees. The exercise price is $.75 per common share, and are exercisable through July 31, 2005. All issuances were granted at the fair market value of the Company's common stock at time of grant.
For additional information, see Note 16 to consolidated financial statements.
On October 1, 2002, the Company issued $650,000 of 10% Convertible Debentures to 10 investors. The Debentures mature on September 30, 2007, and interest is payable semi-annually in arrears at the rate of ten percent per annum. The Debentures are convertible at any time prior to maturity into shares of Common Stock of the Company at the rate of $2.00 per share. The Debentures were offered and sold by the Company pursuant to the exemption from registration set forth in Rule 506 of Regulation D promulgated under the Securities Act of 1933, as amended ("Act"). All of the investors were accredited investors as defined in Rule 501 promulgated under the Act.
On October 1, 2002, the Company sold 600,000 shares of Common Stock at $.50 per share for aggregate gross proceeds of $300,000. Of such shares, 400,000 were purchased by David W. Menard and his wife, and the balance by another investor. The shares were offered and sold by the Company pursuant to the exemption from registration set forth in Rule 506 of Regulation D promulgated under the Act. All of the investors were accredited investors as defined in Rule 501 promulgated under the Act.
Item 6. Management's Discussion and Analysis or Plan of Operation.
Forward Looking Statements
This Form 10-KSB contains certain forward looking statements regarding, among other things, the anticipated financial and operating results of the Company. For this purpose, forward looking statements are any statements contained herein that are not statements of historical fact and include, but are not limited to, those preceded by or that include the words, "believes," "expects," "anticipates," or similar expressions. Those statements are subject to known and unknown risks, uncertainties and other factors that could cause the actual results to differ materially from those contemplated by the statements. Important factors that could cause the Company's actual results to differ materially from those projected include, for example (i) there is no assurance that the Company can locate and purchase businesses that meet its criteria for acquisition, (ii) there is no assurance that the Company will achieve high returns on capital because of, among other reasons, unanticipated fluctuations in costs such as material and labor, ineffective management of business operations, or adverse change in the demand in the marketplace for our products, or (iii) there may be unanticipated issues relating to the integration of new businesses into our existing management and corporate culture. Although the Company believes that the forward looking statements contained herein are reasonable, it can give no assurance that the Company's expectations will be met.
Critical Accounting Policies
Management's discussion and analysis of its financial condition and results of operations are based upon the Company's financial statements which have been prepared in accordance with accounting principles generally accepted in the United States of America. The preparation of these financial statements requires management to make estimates and judgments that affect the reported amounts of assets, liabilities, revenues and expenses, and related disclosure of contingent assets and liabilities. On an on-going basis, management evaluates its estimates, including those related to contract costs, allowance for doubtful accounts, deferred taxes and goodwill impairment. These policies, which may significantly affect the determination of financial position, results of operations and cash flows, are summarized in Note 2, Summary of Significant Accounting Policies, in the Notes to Financial Statements, included elsewhere in this report. Management bases its estimates on historical experience and on various other assumptions that are believed to be reasonable under the circumstances, the results of which form the basis for making judgments about the carrying value of assets and liabilities that are not readily apparent from other sources. Actual results may differ from these estimates under different assumptions or conditions.
Plan of Operations and Management Strategy
Prior to April 1, 2000, the Company was an inactive public shell. As of April 1, 2000, the Company acquired substantially all of the operating assets of J.M. Ahle Co., Inc. ("Ahle"), a fabricator and distributor of reinforcing steel to the construction industry. As of October 1, 2002, the Company acquired substantially all of the operating assets of Rado Enterprises, Inc. ("Rado"), a mechanical contractor engaged in various plumbing, heating, ventilation and air conditioning projects for commercial, industrial and institutional buildings located in northeastern and central Pennsylvania.
Moro is an acquisition oriented company focusing on acquiring and expanding what management believes are easy to understand, uncomplicated manufacturing, distribution and service businesses serving niche markets. By employing what management believes is a dedicated workforce, providing competitive products and services, having tight fiscal controls in the business, and maintaining a frugal, no-frills management style and cost structure, Moro seeks to achieve a high return on capital. Moro's culture revolves around "value investing."
Year Ended December 31, 2003 Compared to Year Ended December 31, 2002
Percentage of revenue and expenditures for the years ended December 31, 2003 and 2002 are as follows:
2003 2002 ------------ ------------ Construction materials sales 46.8% 75.8% Mechanical contracting sales 53.2% 24.2% ------------ ------------ Total 100.0% 100.0% ============ ============ Cost of goods sold 37.6% 59.8% Cost of construction contract revenue 48.2% 20.3% ------------ ------------ Total 85.8% 80.1% ------------ ------------ Gross profit 14.2% 19.9% Operating expenses 10.9% 14.7% ------------ ------------ Operating income 3.3% 5.2% Interest and other expenses, net 0.5% 0.6% ------------ ------------ Income before income taxes 2.8% 4.6% Income tax 1.2% 1.9% ------------ ------------ Net income 1.6% 2.7% ============ ============ |
Year Ended December 31, 2003
Total revenues for the year ended December 31, 2003 were $23,118,968 compared with $14,584,951 for the same period a year ago, an increase of $8,534,017 or 59%. Revenues for the Mechanical Contracting division were $12,290,472 for 2003 is significantly higher compared to 2002 revenues, which totaled $3,532,657, because this segment was not created until October 1, 2002 with the acquisition of Rado Enterprises, Inc. The Mechanical Contracting division accounted for 103% of the Company's overall increase in total revenue offset by a 2% decrease in revenues related to the Construction Materials division which experienced lower net selling prices for its products.
Net income was $378,439 for 2003 compared with $395,266 for 2002, a decrease of 4%. The decrease was attributable primarily to lower gross margins for the Construction Materials division and an increase in corporate expenses related to certain professional fees and corporate development costs.
Because we acquired Rado on October 1, 2002, under accounting principles generally accepted in the United States of America, the financial results of Rado are not included in our financial statements prior to October 1, 2002.
The results of operations for 2003 and 2002 in accordance with accounting principles generally accepted in the United States of America is discussed above. The pro forma information reflects the financial results of Rado for the entire 2002 year. Management believes that this information is useful because it indicates what revenues, gross profits, and net income would have been if Rado had been acquired on January 1, 2002.
On a pro forma basis, total annual revenues for 2003 was $23,118,968 compared to $24,227,000 for 2002, a 4.6% decrease. The decrease was attributed to lower revenues from construction materials due to a decline in the selling prices of the Company's products due to increased competition. Pro forma gross profit decreased from $3,636,000 for 2002 to $3,294,312 for 2003, a decrease of $341,688 or 9.4%, as a result of lower revenues from mechanical contracting services and lower gross profit for the construction materials division. Pro forma net income for the years ended December 31, 2003 and 2002 were $378,439 and $815,000, respectively, a decline of 53.7%. The decline in pro forma net income was due to several factors but primarily due to decreased sales.
Year Ended December 31, 2002
Net sales for the year ending December 31, 2002 were $14,584,951 compared with $10,923,365 for the prior year, an increase of 34%. About 96% of the sales increase is attributable to the Rado acquisition, a mechanical contracting business, which became effective October 1, 2002. Sales for 2002 for the Construction Materials division were 1% higher than for 2001, which represented an all time high for this segment.
Net income for the year ending December 31, 2002 was $395,266 compared with $491,665 for the prior year, a decrease of 20%. The net income margin for 2002 was 2.7% compared with 4.5% for the previous year, a decrease of 1.8 percentage points. The decline in profit margins is attributable to two factors. First, profits for the Construction Materials division declined due to lower unit selling prices caused by competitive pricing pressures along with higher general and administrative expenses, such as insurance costs. Second, the Mechanical Contracting division, which accounted for about 24% of 2002 revenue, reported a
margin of 2.4%, which was lower than the overall consolidated margin of 2.7%. Generally, the profits for the Mechanical Contracting division are expected to be lower than those realized by the Construction Materials division.
On a pro forma basis, annual revenues for the year ended December 31, 2002 were $24,227,000 compared to $26,516,000 for the year ended December 31, 2001, an 8.6% decrease. The decrease was attributed to lower revenues from mechanical contracting services. Pro forma gross profit decreased from $4,350,000 for 2001 to $3,637,000 for 2002, a decrease of $713,000 or 16.39%, as a result of lower revenues from mechanical contracting services and lower gross profit for the construction materials division. Pro forma net income for the years ended December 31, 2001 and 2002 were $864,000 and $816,000, respectively, a decline of 5.6%. The decline in pro forma net income was due to several factors but primarily due to decreased sales.
Liquidity and Capital Resources
For the year ended December 31, 2003, there was a net decrease of cash of $539,483. Cash flows from operating activities of $54,303 were offset primarily by cash flows used in financing activities of $201,267 (mainly repayments of bank debt) and investing activities of $392,519.
As of December 31, 2003, cash on hand was $436,756 and working capital was $2,456,791. The Company believes that its financial resources are adequate to fund the level of operations expected in 2004.
The Company through its subsidiaries maintains lines of credit facilities totaling $4,150,000, which are collateralized by the Company's assets. The credit facilities require the Company to maintain certain financial covenants, which the Company was in compliance with at December 31, 2003. At December 31, 2003, the borrowings under the line of credit were $862,399 and the availability of additional borrowings was $2,525,699.
Item 7. Financial Statements. (a) The following audited financial statements and related documents are set forth in this Form 10-KSB on the following pages: Page(s) ------- Report of Independent Auditor's 21-22 Consolidated Balance Sheets 24 Consolidated Statements of Operations 25 Consolidated Statements of Shareholders' Equity 26 Consolidated Statements of Cash Flows 28 Notes to Consolidated Financial Statements 29 |
Item 8. Changes In and Disagreements With Accountants on Accounting and Financial Disclosure.
On June 6, 2003, Parente Randolph, LLC ("Parente") resigned as the independent accountants for the Company. Because Parente resigned, the decision to change accountants was not recommended or approved by the Board of Directors or an audit or similar committee of the Board of Directors.
The report of Parente on the Company's financial statements for the year ended December 31, 2002 did not contain an adverse opinion or disclaimer of opinion, nor was the audit opinion qualified or modified as to uncertainty, audit scope or accounting principles.
In connection with the audit for the year ended December 31, 2002 and through June 6, 2003, there were no disagreements (as defined in Item 304(a)(1)(iv) of Commission Regulation S-K) with Parente on any matter of accounting principles or practices, financial statement disclosure, or auditing scope or procedure, which disagreements if not resolved to Parente's satisfaction, would have caused Parente to make reference to the subject matter of the disagreement in connection with their reports for such periods; and there have been no reportable events (as defined in Regulation S-K Item 304(a)(1)(v)).
The Company provided Parente with a copy of this disclosure and requested that Parente review such disclosure and provide a letter addressed to the Securities and Exchange Commission as specified by Item 304(a)(3) of Regulation S-K. Such letter was filed as Exhibit 16.1 to the Company's Current Report on Form 8-K dated June 26, 2003.
On August 13, 2003, the Company appointed McGladrey and Pullen, LLP ("McGladrey") as its new independent public accountants. The decision to retain McGladrey was approved by the Company's Board of Directors on August 13, 2003.
During the years ended December 31, 2002, and the subsequent interim period up to June 6, 2003, the Company did not consult with McGladrey regarding (i) the application of accounting principles to a specified transaction, either completed or proposed, (ii) the type of audit opinion that might be rendered on the Company's financial statements, or (iii) any other matters or reportable events set forth in Items 304(a)(1)(iv) and (a)(1)(v) of Regulation S-K.
Item 8A. Control and Procedures.
Evaluation of Disclosure Controls and Procedures
Based on his evaluation of the Company's disclosure controls and procedures (as defined in Rule 13a-15(e) under the Securities Exchange Act of 1934 (the "Exchange Act")), the principal executive officer and principal financial officer has concluded that as of the end of the period covered by this Form 10-KSB such disclosure controls and procedures are effective to ensure that information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the required time periods.
Changes in Internal Control Over Financial Reporting
During the fourth fiscal quarter, there were no significant changes in the Company's internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company's internal control over financial reporting.
PART III
Item 9. Directors, Executive Officers, Promoters and Control Persons.
The executive officers and Directors of the Company, as of December 31, 2003, together with their ages and business backgrounds are as follows:
Name Age Position ---- --- -------- David W. Menard 66 Chairman of the Board of Directors, Chief Executive Officer, Chief Financial Officer, President Lawrence J. Corr 60 Vice President, Director Phillip Naides 73 Director Douglas M. Lurio 47 Director George F. Sprenkle 49 Director |
Each Director holds office until the next annual meeting of shareholders or until his successor has been elected and qualified. Members of the Board of Directors do not currently receive any compensation for serving as a Director. The following is a summary of the business experience of each executive officer and Director.
David W. Menard has been the Chairman of the Board and Chief Executive Officer of the Company since May 1999. He is founder, principal shareholder, President and CEO of Colmen Menard Company, Inc., a private investment banking firm founded in 1993, that provides merger and acquisition, corporate finance and business advisory services. David W. Menard was co-founder, President and a fifty percent shareholder of a predecessor affiliate founded in 1983. During the past fifteen years, David W. Menard has managed and overseen, in the role of an intermediary, over one hundred merger and acquisition transactions.
Lawrence J. Corr has been Vice President and a Director of the Company since May 2000. He has been Managing Director of Colmen Menard Company, Inc. since 1993. Mr. Corr focuses on environmental companies such as those involved in hazardous and solid waste management, industrial and commercial cleaning and maintenance, pollution control equipment, asbestos, recycling, and related products and services as well as consulting engineering firms and industrial distribution companies.
Phillip Naides become a Director of the Company in May 2000. He is a private investor and retired President of T-Thermal Company, a manufacturer of industrial pollution control systems.
Douglas M. Lurio became a Director of the Company in May 2000. He is the founder and senior partner of the law firm of Lurio & Associates, P.C. Mr. Lurio focuses his legal practice in the area of corporate and securities law.
George F. Sprenkle joined the Board of Directors of the Company in November 2003 and is the sole member of the Audit Committee of the Board of Directors. He is the President and Chief Executive Officer of ezBackOffice, an application software and services company offering innovative web-based solutions to enable clients to realize improvements in their back office operations. Mr. Sprenkle co-founded ezBackOffice in May 2000.
Item 10. Executive Compensation.
During 2002 and 2003, David W. Menard, the Chief Executive Officer of the Company, did not receive any compensation directly from the Company for his services rendered to the Company.
Antonio D. Rado, the President of Rado, received a base salary of $175,001 during 2003 and $43,385 during the period October 1, 2002 through December 31, 2002, a profit-sharing contribution under the Rado profit sharing plan of $17,500 in 2003 and $2,500 for the period October 1, 2002 through December 31, 2002, and a contribution under the Rado defined contribution plan of $17,500 during 2003 and $4,000 for the period October 1, 2002 through December 31, 2002. When the Company purchased Rado effective October 1, 2002, Mr. Rado entered into an employment agreement that expires September 30, 2004. Among other things, the employment agreement provides that he shall receive a signing bonus of $600,000 paid in six equal annual payments of $100,000 commencing September 30, 2003. These six payments are to be made regardless of whether Mr. Rado remains an employee of Rado and the payment due in each of years three, four, five and six have been guaranteed by David W. Menard and his wife, principal shareholders.
John Ahle, President of Ahle, received a base salary of $123,440 during 2003 and $119,000 during 2002, a cash bonus of $22,000 during 2003 and $12,000 during 2002, and a contribution to the Ahle 401(k) plan of $2,600 during 2003 and $2,600 during 2002. During 2000, Mr. Ahle was granted incentive stock options to purchase up to 25,000 shares of Company Common Stock at $.75 per share exercisable at any time prior to July 31, 2005.
Item 11. Security Ownership of Certain Beneficial Owners and Management.
The following table sets forth information regarding beneficial ownership of Common Stock by all persons known to the Company to have owned more than 5% of the outstanding shares of Common Stock on December 31, 2003, and the Common Stock beneficially owned by the directors and officers of the Company as of such date.
Percentage of Name and Address Number of Shares(1) Outstanding Shares(2) ---------------- ---------------- ------------------ David W. & 4,631,429 (3) 69.8% Jacqueline J. Menard Suite 1000 994 Old Eagle School Road Wayne, PA 19087 Lawrence J. Corr 50,000 * Suite 1000 994 Old Eagle School Road Wayne, PA 19087 Phillip Naides 0 * 1750 Oakwood Road Penn Valley, PA 19072 Douglas M. Lurio 41,071 (4) * Suite 2340 2005 Market Street Philadelphia, PA 19103 |
Percentage of Name and Address Number of Shares(1) Outstanding Shares(2) ---------------- ---------------- ------------------ George F. Sprenkle 71,429 * 1914 Firethorn Lane Villanova, PA 19085 Antonio D. Rado 0 * 3707 State Road 487 Stillwater, PA 17878 John Ahle 25,000 (5) * Foot of Herman Street South River, NJ 08882 All Directors and Officers as a group (5 persons) 4,793,929 72.3% |
*Less than one percent.
(1) Beneficial ownership is determined in accordance with the rules of the Securities and Exchange Commission and derives from either voting or investment power with respect to securities.
(2) For purposes of this table, there were 6,635,000 shares of Common Stock deemed to be issued and outstanding reflecting the Common Stock outstanding as well as the Common Stock underlying the outstanding 60,000 options and $650,000 of 10% Convertible Debentures.
(3) Reflects 2,396,429 shares owned by Mr. Menard and 2,235,000 shares owned by Mrs. Menard.
(4) Reflects 12,500 shares underlying 10% Convertible Debenture.
(5) Reflects shares underlying incentive stock options.
Item 12. Certain Relationships and Related Transactions.
On March 31, 2000, and as part of the purchase of Ahle by the Company, David W. Menard and his wife loaned Ahle the sum of $300,000. The loan bears interest at nine percent per annum payable on a monthly basis, in arrears, with the principal payable in four equal consecutive annual installments of $75,000 with the first such installment due on April 1, 2002. The payment by Ahle of the principal and interest thereunder is subordinated to the payment of all indebtedness due by Ahle to Sovereign Bank. On March 31, 2000, the Menards borrowed the sum of $300,000 from Sovereign Bank on substantially the same terms and conditions as exist in connection with the loan made to Ahle by the Menards in the identical principal amount. The Company and Ahle have guaranteed repayment of the loan to the Menards from Sovereign Bank.
During 2002, Colmen Menard, a company owned by David W. Menard, received management services fees from the Company of $75,000.
During 2003, Lawrence Corr, a Director, received $50,000 from the Company for corporate development consulting services.
At the time the Company purchased Rado, the Company leased the Rado offices and facilities from a real estate partnership owned fifty percent by Antonio D. Rado, President of Rado for $120,000 per annum. The lease provided that the Company had the right to purchase the real estate for $1,150,000 by notice to the landlord at any time within 120 days following the Company's purchase of Rado. The Company timely notified the landlord of its election to purchase the real estate, and in May 2003, and as permitted in the lease, the Company assigned to JAD Associates, LLC, an entity owned by David W. Menard and his wife ("JAD"), all of its rights to purchase the real property. In May 2003, JAD purchased the real estate for $1,150,000 and entered into a five year lease with the Company for the real property. The lease provides for annual rental of $120,000 during the initial term, contains three five year renewal terms, and grants the Company the right of first refusal to purchase the real estate if JAD attempts to sell the real estate during the term of the lease or within two years thereafter. The Company believes the lease approximates the fair market value of lease payments for the property based upon advice from an independent professional real estate appraisal firm. The Company has not guaranteed the debt of the entity owed by the principal shareholder of the Company.
Item 13. Exhibits and Reports on Form 8-K. (a) Exhibits Number Title 2.1 First Modified Chapter 11 Plan of Reorganization (with attached Disclosure Statement and Supplemental Disclosure Statement) (incorporated by reference from Exhibit 2.1 to the Report on Form 8-K filed on June 16, 1999) 3.1 Amended And Restated Certificate of Incorporation of the Company (incorporated by reference from Exhibit 3.1 to Form 10-KSB for the year ended December 31, 1997) 3.1.1 Certificate of Amendment, filed June 7, 1999, to the Amended and Restated Certificate of Incorporation (incorporated by reference from Exhibit 3.1 of the Report on Form 8-K filed on June 16, 1999) 3.2 By-laws of the Company (incorporated by reference from Exhibit 3.2 to Amendment No. 1 to Registration Statement on Form SB-2 (File No. 33-91054)) 14 |
4.1 Form of 10% Convertible Debenture due September 30, 2007 (incorporated by reference from Exhibit 4.1 to Form 10-KSB for the year ended December 31, 2002). 4.2 Loan and Security Agreement dated September 30, 2002 among Sovereign Bank, Moro/Rado Acquisition Corp., and Moro Corporation (incorporated by reference from Exhibit 4.2 to Form 10-KSB for the year ended December 31, 2002). 4.3 $2,000,000 Line of Credit Note dated September 30, 2002 by Moro/Rado Acquisition Corp., as maker, in favor of Sovereign Bank, as payee (incorporated by reference from Exhibit 4.3 to Form 10-KSB for the year ended December 31, 2002). 4.4 $350,000 Acquisition Term Note dated September 30, 2002 by Moro/Rado Acquisition Corp., as maker, in favor of Sovereign Bank, as payee (incorporated by reference from Exhibit 4.4 to Form 10-KSB for the year ended December 31, 2002). 4.5 Surety Agreement dated September 30, 2002 by Moro Corporation in favor of Sovereign Bank (incorporated by reference from Exhibit 4.5 to Form 10-KSB for the year ended December 31, 2002). 4.6 Third Amendment to Loan and Security Agreement dated October 21, 2002 by and among Sovereign Bank, J.M. Ahle Co., Inc., David W. Menard, Jacqueline J. Menard, and Moro Corporation (incorporated by reference from Exhibit 4.6 to Form 10-KSB for the year ended December 31, 2002). 4.7 $300,000 Amended and Restated Acquisition Term Note dated September 30, 2002 by David W. and Jacqueline J. Menard, as makers, in favor of Sovereign Bank, as payee (incorporated by reference from Exhibit 4.7 to Form 10-KSB for the year ended December 31, 2002). 4.8 $125,000 Amended and Restated Term Note dated October 21, 2002 by J. M. Ahle Co., Inc., as maker, in favor of Sovereign Bank, as payee (incorporated by reference from Exhibit 4.8 to Form 10-KSB for the year ended December 31, 2002). 4.9 Second Amendment to Loan and Security Agreement dated August 28, 2002 by and among Sovereign Bank, J.M. Ahle Co., Inc., David W. Menard, Jacqueline J. Menard, and Moro Corporation (incorporated by reference from Exhibit 4.9 to Form 10-KSB for the year ended December 31, 2002). 15 |
10.1 Asset Purchase Agreement dated March 29, 2000 between Moro Acquisition Corp., David W. Menard and Jacqueline J. Menard, J.M. Ahle Co., Inc., James M. Ahle, Raymond J. Donovan, and Ronald A. Schiavone, as trustee of the Ronald A. Schiavone Living Trust u/t/a/d June 21, 1991, and Ronald A. Schiavone, individually (incorporated by reference to Exhibit 10.1 to the Company's Annual Report on Form 10-KSB for the fiscal year ended December 31, 1999) 10.2 Loan And Security Agreement dated March 31, 2000, by and between Sovereign Bank, Moro Acquisition Corp. and David W. and Jacqueline J. Menard (incorporated by reference to Exhibit 10.2 to the Company's Annual Report on Form 10-KSB for the fiscal year ended December 31, 1999) 10.3 First Amendment to Loan And Security Agreement dated August 30, 2001, by and between Sovereign Bank, J.M. Ahle Co., Inc., Moro Corporation, and David W. and Jacqueline J. Menard 10.4 Amended and Restated Line of Credit Note dated August 30, 2001 by J.M. Ahle Co., Inc., as maker, in favor of Sovereign Bank, as payee, in the principal amount of $1,500,000 10.5 Subordinated Term Note dated March 31, 2000 by Moro Acquisition Corp., as maker, in favor of David W. Menard and Jacqueline J. Menard, as payee, in the principal amount of $300,000 (incorporated by reference to Exhibit 10.3 to the Company's Annual Report on Form 10-KSB for the fiscal year ended December 31, 1999) 10.6 Surety Agreement dated March 31, 2000 by Moro Corporation in favor of Sovereign Bank (incorporated by reference to Exhibit 10.4 to the Company's Annual Report on Form 10-KSB for the fiscal year ended December 31, 1999) 10.7 Acquisition Term Note dated March 31, 2000 by David W. Menard and Jacqueline J. Menard, as maker, in favor of Sovereign Bank, as payee, in the principal amount of $300,000 (incorporated by reference to Exhibit 10.5 to the Company's Annual Report on Form 10-KSB for the fiscal year ended December 31, 1999) 10.8 2000 Stock Option Plan dated August 1, 2000 (Incorporated by reference from Exhibit 10.1 to the Company's Quarterly Report on Form 10-QSB for the quarter ended September 30, 2000) 16 |
10.9 Subscription Agreement between the Company and Greenwood Partners, LLC, dated August 1, 2000 (Incorporated by reference from Exhibit 10.2 to the Company's Quarterly Report on Form 10-QSB for the quarter ended September 30, 2000) 10.10 Greenwood Partners Warrant Certificate dated August 1, 2000 (Incorporated by reference from Exhibit 10.3 to the Company's Quarterly Report on Form 10-QSB for the quarter ended September 30, 2000) 10.11 Asset Purchase Agreement dated July 31, 2002 by and among Moro/Rado Acquisition Corp., Rado Enterprises, Inc., and Antonio D. Rado (incorporated by reference from Exhibit 2.1 to the Company's Current Report on Form 8-K filed October 15, 2002). **10.12 First Amendment to Loan and Security Agreement by and among Sovereign Bank, Rado Enterprises, Inc. and Moro Corporation dated August, 2003. **10.13 Fourth Amendment to Loan and Security Agreement by and among Sovereign Bank, J.M. Ahle Co., Inc., David W. and Jacqueline J. Menard and Moro Corporation dated August 31, 2003. **10.14 Term Note by J.M. Ahle Co., Inc., as Maker, in favor of Sovereign Bank, as payee, in the principal amount of $400,000, dated August 31, 2003. **10.15 Amended and Restated Line of Credit Note by J.M. Ahle Co., Inc, as maker, in favor of Sovereign Bank, as payee, in the principal amount of $2,000,000, dated August 14, 2003. **10.16 Equipment Line of Credit Note by J.M. Ahle Co., Inc, as maker, in favor of Sovereign Bank, as Payee, in the principal amount of $150,000, dated August 31, 2003. **10.17 Employment Agreement between Rado Enterprises, Inc. and Antonio D. Rado, dated September 30, 2002. **10.17.1 First Amendment to Employment Agreement between Rado Enterprises, Inc. and Antonio D. Rado, dated March 24, 2003. **10.18 Lease Agreement between JAD Associates, LLC and Rado Enterprises, Inc., dated May 22, 2003. **31 Statement of Chief Executive and Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. 17 |
**32 Certification pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. ** - Filed as Exhibits hereto. (b) Reports on Form 8-K None. |
Item 14. Principal Accountant Fees and Services.
Parente Randolph, LLC ("Parente") was the Company's principal accountant during 2002 and through June 2003, and McGladrey & Pullen, LLP ("McGladrey) was the Company`s principal accountant from and after August 2003 and for the remainder of 2003.
During 2003 and 2002, Parente and McGladrey were compensated by the Company for services provided to the Company in the following categories and amounts:
Parente Parente McGladrey 2002 2003 2003 -------- -------- ------------- Audit Fees * $ 42,259 $ 7,200 $ 54,937 Audited Related Fees 0 0 0 Tax Fees 0 0 0 All Other Fees ** 12,000 0 0 Out-of-Pocket Expenses 0 0 0 ------------- ----------- ------------- Total $ 54,259 $ 7,200 $ 54,937 ============= =========== ============= |
*"Audit Fees" include fees related to the audit of the Company's annual financial statements and reviews of the Company's quarterly financial statements.
**The Company was billed by Parente during 2002 for $10,000 for professional services rendered in connection with the Company's purchase of Rado, and during 2003 for $2,000 for professional services rendered by Parente relating to the transition of the audit function from Parente to McGladrey.
All services provided by the Company's principal accountants during 2002 and 2003 were approved in advance by the Chairman of the Board. In November 2003, the Board established an Audit Committee consisting of Mr. Sprenkle. The Audit Committee Charter provides that the Audit Committee has the authority to pre-approve all audit and non-audit services to be performed by the auditors, and has the responsibility to review and confirm the independence of the auditors.
SIGNATURES
In accordance with Section 13 or 15(d) of the Exchange Act, the registrant has caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
MORO CORPORATION
By: /s/ David W. Menard -------------------- David W. Menard, President |
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
Signatures Title Date ---------- ----- ---- /s/ David W. Menard President and Director April 13, 2004 ---------------------- David W. Menard (Principal Executive Officer and Principal Accounting Officer) /s/ Lawrence J. Corr Vice President, Director April 13, 2004 ---------------------- Lawrence J. Corr ______________________ Director April __, 2004 Philip Naides /s/ Douglas M. Lurio Director April 13, 2004 ---------------------- Douglas M. Lurio ______________________ Director April __, 2004 George F. Sprenkle |
MORO CORPORATION
TABLE OF CONTENTS
DECEMBER 31, 2003 AND 2002
Page Number(s) --------- INDEPENDENT AUDITORS' REPORT 21-22 CONSOLIDATED BALANCE SHEETS 24 CONSOLIDATED STATEMENTS OF OPERATIONS 25 CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY 26 CONSOLIDATED STATEMENTS OF CASH FLOWS 28 NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 29 |
INDEPENDENT AUDITOR'S REPORT
To the Board of Directors
Moro Corporation and Subsidiaries
Wayne, Pennsylvania
We have audited the accompanying consolidated balance sheet of Moro Corporation and subsidiaries as of December 31, 2003, and the related statements of operations, retained earnings and cash flows for the year then ended. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audit.
We conducted our audit in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of Moro Corporation and subsidiaries as of December 31, 2003, and the results of their operations and their cash flows for the year then ended in conformity with accounting principles generally accepted in the United States of America.
/s/ MCGLADREY & PULLEN, LLP Blue Bell, Pennsylvania March 12, 2004 except for note 24, as of which is dated April 13, 2004 |
INDEPENDENT AUDITORS' REPORT
Board of Directors and Stockholders
Moro Corporation
Bala Cynwyd, Pennsylvania
We have audited the accompanying consolidated balance sheet of Moro Corporation and subsidiaries (the "Company") as of December 31, 2002, and the related consolidated statements of operations, stockholders' equity and cash flows for the year then ended. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audit.
We conducted our audit in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of Moro Corporation as of December 31, 2002, and the results of their operations and their cash flows for the year then ended in conformity with accounting principles generally accepted in the United States of America.
/s/ PARENTE RANDOLPH, LLC Philadelphia, Pennsylvania March 25, 2003 |
MORO CORPORATION CONSOLIDATED BALANCE SHEETS DECEMBER 31, 2003 AND 2002 2003 2002 -------------- -------------- ASSETS CURRENT ASSETS Cash and Cash Equivalents .................................... $ 436,756 $ 976,239 Trade Accounts Receivable, Net ............................... 2,413,597 1,927,920 Accounts Receivable on Contracts (Including Retentions) ...... 1,718,852 2,567,006 Inventory .................................................... 708,046 598,030 Costs and Estimated Earnings in Excess of Billings on Uncompleted Contracts ................................... 362,745 732,300 Investment in Joint Venture .................................. 145,796 -- Prepaid Income Taxes ......................................... 40,013 -- Other Current Assets ......................................... 31,823 46,260 ------------ ------------ Total Current Assets ......................................... 5,857,628 6,847,755 PROPERTY AND EQUIPMENT, NET .................................. 1,167,787 1,157,915 OTHER INTANGIBLE ASSETS, NET ................................. 26,508 62,530 OTHER ASSETS ................................................. 7,718 5,593 GOODWILL ..................................................... 385,341 380,863 ------------ ------------ Total Assets ................................................. $ 7,444,982 $ 8,454,656 ============ ============ See accompanying Notes to Consolidated Financial Statements 23 |
MORO CORPORATION CONSOLIDATED BALANCE SHEETS DECEMBER 31, 2003 AND 2002 2003 2002 -------------- -------------- LIABILITIES AND STOCKHOLDERS' EQUITY CURRENT LIABILITIES Line of Credit ............................................... $ 862,399 $ 1,031,625 Current Portion of Long-Term Debt ............................ 437,941 409,828 Trade Accounts Payable ....................................... 1,405,901 1,188,491 Due to Former Owner .......................................... 431,322 967,155 Accrued Expenses ............................................. 222,864 488,673 Billings in Excess of Costs and Estimated Earnings on Uncompleted Contracts ................................... 40,410 610,742 Income Taxes Payable ......................................... -- 124,282 ------------ ------------ Total Current Liabilities .................................... 3,400,837 4,820,796 LONG-TERM LIABILITIES Long-Term Debt ............................................... 948,388 1,008,542 Convertible Debentures ....................................... 650,000 650,000 Deferred Tax Liability ....................................... 159,000 67,000 ------------ ------------ Total Long-Term Liabilities .................................. 1,757,388 1,725,542 ------------ ------------ STOCKHOLDERS' EQUITY Preferred Stock, $.001 Par Value, Authorized 5,000,000 Shares; None Issued or Outstanding ................................. -- -- Common Stock, $.001 Par Value, Authorized 25,000,000 Shares; Issued and Outstanding 6,250,000 Shares at December 31, 2003 and 2002 .............................................. 6,250 6,250 Additional Paid-In Capital ................................... 793,325 793,325 Retained Earnings ............................................ 1,487,182 1,108,743 ------------ ------------ Total Stockholders' Equity ................................... 2,286,757 1,908,318 ------------ ------------ Total Liabilities and Stockholders' Equity ................... $ 7,444,982 $ 8,454,656 ============ ============ |
See accompanying Notes to Consolidated Financial Statements
MORO CORPORATION CONSOLIDATED STATEMENTS OF OPERATIONS YEARS ENDED DECEMBER 31, 2003 AND 2002 2003 2002 -------------- -------------- REVENUES: Construction Material Sales, Net ............................. $ 10,828,496 $ 11,052,294 Mechanical Contracts Revenue Earned .......................... 12,290,472 3,532,657 ------------ ------------ Total Revenues ............................................... 23,118,968 14,584,951 COST OF REVENUES: Cost of Goods Sold ........................................... 8,692,861 8,716,900 Cost of Construction Contract Revenue Earned ................. 11,131,795 2,961,239 ------------ ------------ Total Cost of Revenues ....................................... 19,824,656 11,678,139 GROSS PROFIT ................................................. 3,294,312 2,906,812 OPERATING EXPENSES Selling, General and Administrative Expenses ................. 2,521,065 2,148,763 ------------ ------------ Total Operating Expenses ..................................... 2,521,065 2,148,763 ------------ ------------ OPERATING INCOME ............................................. 773,247 758,049 OTHER INCOME (EXPENSE) Other ........................................................ 23,025 4,765 Interest Income .............................................. 2,735 7,371 Interest Expense ............................................. (173,364) (99,919) Equity in Earnings of Joint Venture .......................... 20,796 -- ------------ ------------ INCOME BEFORE INCOME TAXES ................................... 646,439 670,266 PROVISION FOR INCOME TAXES ................................... 268,000 275,000 ------------ ------------ NET INCOME ................................................... $ 378,439 $ 395,266 ============ ============ EARNINGS PER SHARE - BASIC AND DILUTED ....................... $ 0.06 $ 0.07 ============ ============ WEIGHTED AVERAGE OUTSTANDING (BASIC AND DILUTED) ............. 6,250,000 5,770,788 ============ ============ |
See accompanying Notes to Consolidated Financial Statements
MORO CORPORATION CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY YEARS ENDED DECEMBER 31, 2003 AND 2002 Common Additional Retained Stock Paid-In Capital Earnings Total ----------- --------------- ----------- ----------- BALANCE, JANUARY 1, 2002 ..... $ 5,650 $ 493,925 $ 713,477 $1,213,052 Net Income ................... -- -- 395,266 395,266 Issuance of Common Stock ..... 600 299,400 -- 300,000 ---------- ---------- ----------- ---------- BALANCE, DECEMBER 31, 2002 ... 6,250 793,325 1,108,743 1,908,318 Net Income ................... -- -- 378,439 378,439 ---------- ---------- ---------- ---------- BALANCE, DECEMBER 31, 2003 ... $ 6,250 $ 793,325 $1,487,182 $2,286,757 =========== =========== =========== ========== |
See accompanying Notes to Consolidated Financial Statements
MORO CORPORATION CONSOLIDATED STATEMENTS OF CASH FLOWS YEARS ENDED DECEMBER 31, 2003 AND 2002 2003 2002 ----------- ----------- CASH FLOWS FROM OPERATING ACTIVITIES Net Income ................................................ $ 378,439 $ 395,266 Adjustments to Reconcile Net Income to Net Cash Provided by Operating Activities: Amortization .............................................. 36,022 9,018 Depreciation .............................................. 253,670 108,404 Equity in Earnings in Investment in Joint Venture ......... (20,796) -- Gain on Sale of Property and Equipment .................... (501) -- Deferred Income Taxes ..................................... 92,000 52,000 Changes in Assets and Liabilities, Net of Acquisitions: Trade Accounts Receivable ................................. (485,677) (63,063) Contract Accounts Receivable .............................. 848,154 73,102 Inventory ................................................. (110,016) 53,765 Costs in Excess of Billings ............................... 369,555 (512,279) Prepaid Income Taxes ...................................... (40,013) 59,000 Other Current Assets ...................................... 14,437 (29,584) Other Assets .............................................. (2,125) -- Trade Accounts Payable .................................... 217,410 (510,136) Due to Former Owner ....................................... (535,833) (55,322) Accrued Expenses .......................................... (265,809) 273,936 Billings in Excess of Costs ............................... (570,332) 215,857 Income Taxes Payable ...................................... (124,282) 124,282 ----------- ----------- Net Cash Provided by Operating Activities ................. 54,303 194,246 CASH FLOWS FROM INVESTING ACTIVITIES Purchase of Property and Equipment ........................ (266,541) (250,331) Sale of Property and Equipment ............................ 3,500 -- Investment in Joint Venture ............................... (125,000) -- Acquisition of Business, Net of Cash Acquired ............. (4,478) (693,197) ----------- ----------- Net Cash Used by Investing Activities ..................... (392,519) (943,528) CASH FLOWS FROM FINANCING ACTIVITIES Issuance of Common Stock .................................. -- 300,000 Proceeds from Issuance of Convertible Debentures .......... -- 650,000 Proceeds from Lines of Credit ............................. 1,368,100 555,150 Repayments of Lines of Credit ............................. (1,537,326) (710,000) Proceeds of Long-Term Debt ................................ 420,000 413,207 Principal Payments of Notes Payable ....................... (452,041) (128,550) ----------- ----------- Net Cash Provided by (Used in) Financing Activities ....... (201,267) 1,079,807 ----------- ----------- NET INCREASE (DECREASE) IN CASH ........................... (539,483) 330,525 CASH AND CASH EQUIVALENTS-BEGINNING OF YEAR ............... 976,239 645,714 ----------- ----------- CASH AND CASH EQUIVALENTS - END OF YEAR ................... $ 436,756 $ 976,239 =========== =========== See accompanying Notes to Consolidated Financial Statements 27 |
MORO CORPORATION CONSOLIDATED STATEMENTS OF CASH FLOWS YEARS ENDED DECEMBER 31, 2003 AND 2002 2003 2002 ----------- ----------- SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION Cash Paid for Interest .................................... $ 174,398 $ 82,486 Cash Paid for Taxes ....................................... $ 111,500 $ 40,000 Non-Cash Financing Activities Related to Acquisition Deferred Amount Payable to Former Owner ................... $ -- $ 507,600 Promissory Note Payable to Former Owner ................... -- 200,000 Retainage Payable to Former Owner ......................... -- 882,003 Amount Payable to Former Owner ............................ -- 140,474 ----------- ----------- $ -- $ 1,730,077 =========== =========== |
See accompanying Notes to Consolidated Financial Statements
MORO CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2003 AND 2002
NOTE 1 NATURE OF BUSINESS AND OPERATING CYCLE
Moro Corporation (the "Company") is engaged in two lines of business - Construction Materials and Mechanical Contracting.
The Construction Materials line of business commenced on March 31, 2000 when the Company purchased substantially all of the operating assets of J.M. Ahle Co., Inc., a New Jersey corporation ("Ahle") for cash and notes. Ahle is a fabricator of reinforcing steel and a distributor of construction accessories. The typical operating cycle for Ahle, from receipt of a purchase order to the delivery of goods, ranges from several days to several months.
The Mechanical Contractors line of business commenced on October 1, 2002 when Moro/Rado Acquisition Corporation purchased substantially all of the operating assets of the former Rado Enterprises, Inc., a Pennsylvania corporation for cash and amounts payable. Moro/Rado Acquisition Corporation subsequently changed its name to Rado Enterprises, Inc. ("Rado"). Rado fabricates sheet metal ductwork and process piping and provides mechanical contracting services. The typical operating cycle for Rado, from the award of a contract through the completion of the contract, ranges from several weeks up to a period of approximately two years.
The Company's products/services are used primarily in construction projects such as highways, bridges, industrial and commercial buildings, hospitals, schools, office buildings, and other kinds of structures. The Company's customers are mainly contractors and end users.
NOTE 2 SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
NOTE 2 SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
A trade accounts receivable and accounts receivable on contracts are considered to be past due if any portion of the receivable balance is outstanding for more than 90 days. Interest is not charged on past due trade receivables.
Years Machinery and Equipment 7 Vehicles 5 Office Equipment 5 |
Maintenance and repairs are charged to expense as incurred. Expenditures for major renewals and improvements that extend the useful lives of the assets are capitalized.
NOTE 2 SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
Prior to January 1, 2003, the excess of cost over the fair value of net assets acquired (goodwill) was amortized on a straight-line basis over periods ranging from 5 to 30 years. After January 1, 2002, no amortization is recorded for these assets.
Shipping and handling charges to customers are included in net sales and the related shipping and handling costs incurred by the Company are included in cost of goods sold.
Contract costs include all direct material, labor, subcontractor and those indirect costs that relate to contract performance. All other costs are expensed as incurred. Provisions for estimated losses on uncompleted contracts are made in the period in which such losses are first determined. Changes in job performance, job conditions and estimated profitability may result in revisions to costs and income and are recognized in the period in which the revisions are determined. The Company recognizes claim and contract modification costs as they are incurred and revenues when realization is probable and the amount can be reliably estimated, which is generally at the time a claim or contract modification is accepted by all parties. Because of the inherent uncertainties in estimating costs, it is at least reasonably possible that the estimates used will change in the near term.
The asset, "Costs and estimated earnings in excess of billings on uncompleted contracts," represents revenues recognized in excess of amounts billed. The liability, "Billings in excess of costs and estimated earnings on uncompleted contracts," represents billings in excess of revenues recognized.
NOTE 2 SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
Effective December 31, 2002, the Company adopted the disclosure provisions of SFAS No. 148, "Accounting for Stock-Based Compensation - Transition and Disclosure." At December 31, 2003 and 2002, the Company had one stock-based employee compensation plan, which is described more fully in Note 16. The Company accounts for this plan under the intrinsic value recognition and measurement principles of APB Opinion No. 25, "Accounting for Stock Issued to Employees," and related Interpretations.
If the Company had elected to recognize compensation cost based on the fair value of the options granted at grant date as prescribed by SFAS 123, net income and diluted income per common share would have been reduced to the pro forma amount as follows:
2003 2002 -------------- -------------- Net income, as reported $ 378,439 $ 395,266 Deduct: Total stock-based employee compensation expense determined under fair value based method for all awards, net of tax effects - - -------------- -------------- Pro-forma net income $ 378,439 $ 395,266 ============== ============== Earnings per share: Basic - as reported $ 0.06 $ 0.07 ============= ============== Basic - pro-forma $ 0.06 $ 0.07 ============= ============== Diluted - as reported $ 0.06 $ 0.07 ============= ============== Diluted - pro-forma $ 0.06 $ 0.07 ============= ============== |
The Company operates in two business segments: Construction Materials and Mechanical Contracting.
The operating segments are managed separately and maintain separate personnel due to the differing services offered by each segment. Management of each of the segments evaluates and monitors the performance of the segments based on the operating earnings or losses prior to income taxes. The significant accounting policies utilized by the operating segments are the same as those summarized in the footnote entitled "Summary of Significant Accounting Policies" of the notes to the consolidated financial statements. The financial information presented for each segment does not allocate corporate overhead costs. There are no intersegment sales. For financial information on reporting segments, see Note 13 to the consolidated financial statements.
NOTE 2 SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
In April 2003, the FASB issued SFAS No. 149, "Amendment of Statement 133 on Derivative Instruments and Hedging Activities" (SFAS 149). SFAS 149 amends and clarifies financial accounting and reporting for derivative instruments, including certain derivative instruments embedded in other contracts, and for hedging activities under SFAS No. 133, "Accounting for Derivative Instruments and Hedging Activities." This Statement amends SFAS No. 133 for decisions made as part of the Derivatives Implementation Group process and in connection with implementation issues raised in relation to the application of the definition of a derivative. SFAS 149 is effective for contracts entered into or modified after June 30, 2003. The Company does not expect the requirements of SFAS 149 to have a material impact on the results of operations, financial position or liquidity.
NOTE 3 ACQUISITION
Effective October 1, 2002, the Company purchased substantially all of the operating assets and assumed certain liabilities of former Rado Enterprises, Inc. Rado is a mechanical contractor engaged in various plumbing, heating, ventilating and air conditioning projects for commercial, industrial and institutional buildings. The work is subcontracted directly from private companies as well as federal and state agencies in northeastern and central Pennsylvania. Rado Enterprises, Inc. performs its own prefabrication of piping and sheet metal ductwork. As a result of the acquisition, the Company is expected to be a leading mechanical contractor in central Pennsylvania.
The aggregate adjusted purchase price of the acquisition was $2,424,000. The Company funded the acquisition through the (1) issuance of 600,000 shares of Moro Corporation common stock, par value $.001 per share; (2) issuance of $650,000 10% convertible debentures due September 30, 2007. These debentures are subordinated to senior debt. All or a portion of the principal amount can be converted into common stock at a conversion price of $2.00 per share; (3) issuance of $200,000 6% note payable, payable in four equal semi-annual installments, which shall be due on the six, twelve, eighteen and twenty four month anniversaries of the Closing Date (October 1, 2002); (4) issuance of a bank note payable of $350,000 due on October 1, 2007; (5) amount relating to retainage receivable; (6) deferred amount payable to former owner of $600,000 (non-interest bearing) due in $100,000 increments on each of the first, second, third, fourth, fifth and sixth anniversaries of the Closing Date (October 1, 2002). None of these amounts are contingent upon the former owner continuing employment.
The following table summarizes the estimated fair values of the assets acquired and liabilities assumed at the date of acquisition.
At October 1, 2002 Current Assets $ 2,996,000 Property, Plant and Equipment 708,000 Intangible Assets 72,000 Goodwill 381,000 ------------------ Total Assets Acquired 4,157,000 Total Liabilities Assumed 1,733,000 ------------------ Net Assets Acquired $ 2,424,000 ================== |
Of the $71,548 of acquired intangible assets, $46,548 was assigned to customer related contracts that are subject to amortization over the related contract term which is generally less than 2 years. The remaining $25,000 relates to covenant-not-to-compete agreements which have a useful life of 5 years.
In accordance with FAS 142, Goodwill and Other Intangible Assets, the goodwill of $385,341 is not amortized but is reviewed annually for impairment. The Company estimates fair value using the expected present value of future cash flows. For income tax purposes, all goodwill is expected to be amortized over 15 years.
NOTE 3 ACQUISITION (CONTINUED)
The following unaudited pro forma consolidated results of operations are presented as if the acquisition of Rado had been made at January 1, 2002. This unaudited pro forma information is being provided for informational purposes only. It is not necessarily indicative of the results of operations that would have occurred had the purchase been made at January 1, 2002 or the future results of the combined operations.
Year Ended December 31, 2002 ------------ Sales ............................................ $ 24,227,000 Cost of Sales .................................... 20,590,000 ------------ Gross Profit ..................................... 3,637,000 Operating Expenses ............................... 2,254,000 ------------ Operating Income ................................. 1,383,000 Other Income - Net ............................... (5,000) ------------ Income Before Income Taxes ...................... 1,378,000 Provision for Income Taxes ....................... 562,000 ------------ Net Income ....................................... $ 816,000 ============ Basic and Diluted Earnings per Common Share $ .14 ============ Weighted Average Shares .......................... 5,770,788 ============ |
NOTE 4 CONTRACT RECEIVABLES
Contract receivables consist of the following: 2003 2002 -------------- ------------- Completed Contract and Time and Material Jobs $ 269,989 $ 258,450 Contracts in Progress 981,304 1,477,406 Retainage (Due upon Completion of Contracts) 467,559 831,150 -------------- ------------- Total $ 1,718,852 $ 2,567,006 =============== ============ |
NOTE 5 PROPERTY AND EQUIPMENT
The following summarizes the principal components of property and
equipment:
2003 2002 -------------- -------------- Machinery and Equipment $ 1,173,169 $ 954,631 Vehicles 317,823 317,823 Office Equipment 116,348 72,199 -------------- -------------- Total 1,607,340 1,344,653 Less: Accumulated Depreciation 439,553 186,738 -------------- -------------- Total $ 1,167,787 $ 1,157,915 ============== ============== |
NOTE 5 PROPERTY AND EQUIPMENT (CONTINUED)
Depreciation expense was $253,670 and $108,404 for the years ending December 31, 2003 and December 31, 2002, respectively.
NOTE 6 INVESTMENT IN JOINT VENTURE
The Company has a fifty percent interest in a general partnership joint venture formed to act as a subcontractor on a certain mechanical contract. The contract is expected to be complete in the fourth quarter of 2004. Both the partners participate in the contract, which is under the general management of the Company. Summary information on the joint venture as of December 31, 2003 and for the year then ended is as follows:
Current Assets $ 440,331 Less Liabilities, Primarily Trade Accounts Payable 148,738 --------------- Net Assets $ 291,593 =============== Revenue 599,672 Net income 41,593 Company's Share of Net Income $ 20,796 Advances to Joint Venture 125,000 --------------- Total Advances and Equity $ 145,796 =============== |
The Company expects to receive payment of the advances it made to the joint venture at the time the joint venture is dissolved. Both the general partners in the joint venture are jointly and severally liable for the obligations of the joint venture. However, the Company does not expect to incur any loss from the obligations of the joint venture.
NOTE 7 OTHER INTANGIBLE ASSETS
As a result of the acquisition that is more fully described in Note 3, the following is a summary of the intangible assets acquired:
2003 2002 ---------------------------- ------------------------ Gross Gross Carrying Accumulated Carrying Accumulated Amount Amortization Amount Amortization ------ ------------ ------ ------------ Subject to Amortization: Covenant Not to Compete $ 25,000 $ (6,250) $ 25,000 $ (1,260) Customer Contracts 46,548 (38,790) 46,548 (7,758) -------- -------------- ---------- -------------- Total $ 71,548 $ (45,040) $ 71,548 $ (9,018) ======== ============== ========== ============== |
Amortization expense on the amortizable intangible assets totaled $36,022 and $9,018 in 2003 and 2002, respectively.
NOTE 7 OTHER INTANGIBLE ASSETS (CONTINUED)
Years Ending December 31, Amount ------------------------- ------------------ 2004 $ 12,758 2005 5,000 2006 5,000 2007 3,750 ------------------ Total $ 26,508 ================== NOTE 8 GOODWILL |
Changes in the carrying amount of goodwill for the years ended December 31, 2003 and 2002 are as follows:
2003 2002 -------------- -------------- Balance, Beginning $ 380,863 $ - Goodwill Acquired During the Year - 380,863 Adjustments to Previously Recorded Purchase Price 4,478 - -------------- -------------- Balance, Ending $ 385,341 $ 380,863 ============== ============== |
Management determined that goodwill was not impaired as of December 31, 2003 and 2002 and no impairment adjustment was deemed necessary.
NOTE 9 COSTS AND ESTIMATED EARNINGS ON UNCOMPLETED CONTRACTS
Information regarding uncompleted contracts as of December 31, 2003 and 2002 is as follows:
2003 2002 -------------- ------------- Total Amount of Contracts in Process $ 29,637,338 $ 26,777,969 ============== ============= Costs Incurred on Uncompleted Contracts $ 15,054,286 $ 16,751,398 Estimated Earnings 4,400,142 1,239,017 -------------- ------------- Total 19,454,428 17,990,415 Less: Billings to Date 19,132,093 17,868,857 -------------- ------------- $ 322,335 $ 121,558 ============== ============= |
Included in the accompanying balance sheet under the following captions:
2003 2002 ------------ ------------ Costs and Estimated Earnings in Excess of Billings on Uncompleted Contracts $ 362,745 $ 732,300 Billings in Excess of Costs and Estimated Earnings on Uncompleted Contracts (40,410) (610,742) ------------- ------------ $ 322,335 $ 121,558 ============ ============ |
NOTE 10 DUE TO FORMER OWNER
Under the terms of the asset purchase agreement dated October 1, 2002, the Company is required to make certain payments to the former owner of the business acquired.
The Company is required to share with the former owner profits in excess of defined amounts on a certain mechanical contract. As of December 31, 2003, this mechanical contract was substantially complete and management believes that it appears probable that an amount will be paid to the former owner under the terms defined in the asset purchase agreement. Accordingly, as of December 31, 2003, the Company has recorded $236,759 as an amount due to the former owner related to this contingency.
In addition, the Company is required to repay the former owner for retainage amounts collected by the Company upon completion of certain mechanical contracts defined in the asset purchase agreement. As of December 31, 2003 and 2002, $194,563 and $826,681 were included in due to former owner related to the retainage amounts payable.
NOTE 11 DEMAND NOTES PAYABLE, BANK
The Company through its subsidiaries maintains two separate credit facilities both of which are collateralized by substantially all of the Company's assets. The credit facilities also require the Company to maintain certain financial covenants.
J.M. Ahle Co. has an amended credit facility, which matures on June 30, 2004. The credit facility entitles the subsidiary to borrow an amount which, in the aggregate, shall not exceed the lesser of (i) the Borrowing Base as defined in the Loan Agreement, or (ii) $2,150,000, less the sum of the then unpaid principal amount of all previous advances. As of December 31, 2003 and 2002 borrowings on the line of credit were $862,399 and $1,031,625, respectively. At December 31, 2003, J.M. Ahle had unused and available borrowings of $1,151,560. Amounts borrowed under the credit facility bear interest payable monthly in arrears commencing on September 1, 2003 and on the first day of each month thereafter at a rate of prime plus one quarter percent (.25%). The Company can prepay amounts under the credit facility without penalty or premium but with accrued interest to the date of such prepayment on the amount prepaid.
Rado Enterprises, Inc. has a credit facility, which matures on June 30, 2004. The credit facility entitles the subsidiary to borrow an amount which, in the aggregate, shall not exceed the lesser of (i) the Borrowing Base as defined in the Loan Agreement, or (ii) $2,000,000, less the sum of the then unpaid principal amount of all previous advances. As of December 31, 2003 and 2002, there were no amounts outstanding and Rado had unused and available borrowings under the credit facility of $1,374,139 at December 31, 2003. Amounts borrowed under the credit facility bear interest payable monthly in arrears commencing on November 1, 2003 and on the first day of each month thereafter at a rate of prime plus one half percent (.50%). The Company can prepay amounts under the credit facility without penalty or premium but with accrued interest to the date of such prepayment on the amount prepaid.
NOTE 12 LONG-TERM DEBT
2003 2002 ------------- ----------- Term loan, bank, due September 2009, payable in equal monthly principal payments plus interest (4.5% per annum at December 31, 2003) $ 383,332 $ - Term loan, bank, due April 1, 2005, payable per annum in monthly installments with interest at prime plus .5% per annum. This loan was repaid in the current year. - 58,333 Term loan, bank, due October 1, 2007 payable in monthly installments with interest at prime plus 1.0% per annum (5.0% per annum at December 31, 2003). 262,500 332,500 Subordinated term loan, payable to the President of the Company, due April 1, 2005, payable in annual installments of $75,000 with interest at prime plus .5% per annum (4.5% per annum at December 31, 2003). 150,000 225,000 Term loan, former owner of business acquired, due April 1, 2004, payable in quarterly installments and bears no interest. This loan was repaid in the current year. - 31,730 Term loan, bank, due November 1, 2004 payable in monthly principal installments of $1,000 with interest at 4.25% per annum. 10,000 - Term loan to former owner of business acquired due September 30, 2004, payable in semi-annual installments with interest at 6% per annum. 100,000 200,000 Auto loans due December 2005, payable in 36 equal monthly principal payments. The loans bear no interest. 42,137 63,207 39 |
NOTE 12 LONG-TERM DEBT (CONTINUED) 2003 2002 ------------- ----------- Deferred signing bonus due to former owner of business acquired, due in six equal annual payments of $100,000 beginning September 30, 2003 through September 30, 2008, net of discount of $61,640 and $92,400 at December 31, 2003 and. 2002. Interest has been imputed at 5% per annum. David Menard and his wife guaranteed $400,000 of the $600,000 signing bonus. 438,360 507,600 ------------- ----------- 1,386,329 1,418,370 Less: current portion 437,941 409,828 ------------- ----------- $ 948,388 $ 1,008,542 ============= =========== |
Maturities of long-term debt are as follows:
Years Ending December 31, Amount ------------------------- ------------------ 2004 $ 437,941 2005 323,441 2006 223,072 2007 201,472 2008 150,432 Thereafter 49,971 ------------------ Total $ 1,386,329 ================== |
On March 31, 2000, the President of the Company borrowed $300,000 from a bank on substantially the same terms and conditions as exist in connection with the subordinated term loan made by the President to the Company. The Company and subsidiary guarantee the repayment of bank loan to the President.
NOTE 13 SEGMENT INFORMATION
The Company operates in two business segments: Construction Materials and Mechanical Contracting. The operating segments are managed separately and maintain separate personnel due to the differing services and products offered by each segment.
NOTE 13 SEGEMENT INFORMATION (CONTINUED)
Operating segment information for the years ended December 31, 2003 and 2002 is as follows:
Year Ended Construction Mechanical December 31, 2003 Materials Contracting Corporate Total ----------------- --------------- --------------- ------------ ---------------- Revenues $ 10,828,496 $ 12,290,472 $ - $ 23,118,968 Gross Profit $ 2,135,635 $ 1,158,677 $ - $ 3,294,312 Operating Segment Incom from Operations $ 482,940 $ 410,723 $ (120,416) $ 773,247 Total Segment Assets $ 3,646,971 $ 3,763,421 $ 34,590 $ 7,444,982 Depreciation and Amortization Expense $ 111,004 $ 178,688 $ - $ 289,692 Year Ended Construction Mechanical December 31, 2002 Materials Contracting Corporate Total ----------------- --------------- --------------- ------------ -------------- Revenues $ 11,052,294 $ 3,532,657 $ - $ 14,584,951 Gross profit $ 2,335,395 $ 571,417 $ - $ 2,906,812 perating segment income from operations $ 606,170 $ 150,674 $ 1,205 $ 758,049 Total segment assets $ 3,270,858 $ 4,997,995 $ 185,803 $ 8,454,656 Depreciation and amortization expense $ 75,031 $ 42,391 $ - $ 117,422 |
NOTE 14 COMMITMENTS AND CONTINGENCIES
As of December 31, 2003 and 2002, the Company was not a party to any pending legal proceedings.
NOTE 14 COMMITMENTS AND CONTINGENCIES (CONTINUED)
The Company, as a condition for entering into construction contracts, had outstanding surety bonds of $9,991,800 as of December 31, 2003. The President of the Company has personally guaranteed a maximum of $1,000,000 of the outstanding surety bonds.
NOTE 15 COMMON AND PREFERRED STOCK
The total number of shares of all classes of stock which the Company has authority to issue is 30,000,000 shares, consisting of (a) 25,000,000 shares of Common Stock, par value $.001 per share, and (b) 5,000,000 shares of Preferred Stock, par value $.001 per share. The preferred stock may be issued in one or more series, and may have special rights and qualifications, limitations, or restrictions as shall be stated in the resolution or resolutions providing for the issue thereof adopted by the Board of Directors of the Company, from time to time.
NOTE 16 INCENTIVE STOCK OPTION PLAN
In 2000, the Company established an incentive stock option plan (the Plan) and presently has reserved 300,000 shares of the Company's common stock for issuance under the Plan. Options granted pursuant to the Plan and contractual agreements at December 31, 2003 and 2002 were 60,000 and those options were granted to key employees. The exercise price is $.75 per common share, and are exercisable through July 31, 2005. All issuances were granted at the fair market value of the Company's common stock at time of grant.
Stock options may be granted as either incentive stock options intended to qualify under Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"), or as options not qualified under Section 422 of the Code. All options are issued with an exercise price at or above 100 percent of the fair market value of the common stock on the date of grant. Incentive stock option plan awards of restricted stock are intended to qualify as deductible performance-based compensation under Section 162(m) of the Code. Incentive stock option awards of unrestricted stock are not designed to be deductible to the Company under Section 162(m).
NOTE 16 INCENTIVE STOCK OPTION PLAN (CONTINUED)
Stock option transactions for employees during 2003 and 2002 are as follows:
Weighted Average Exercise Price Exercise Price Option Vested Per Vested Per Vested Shares Share Common Share Common Share ------ ----- ------------ ------------ Balance, January 1, 2002 60,000 60,000 $.75 $.75 Granted/vested during the year 0 0 Expired during the year 0 0 ---------- ---------- Balance, December 31, 2002 60,000 60,000 $.75 $.75 Granted/vested during the year 0 0 Expired during the year 0 0 ---------- ---------- Balance, December 31, 2003 60,000 60,000 $.75 $.75 ====== ====== |
Information with respect to employee stock options outstanding and employee stock options exercisable at December 31, 2003 is as follows:
Employee Options Outstanding ---------------------------- Number Weighted Average Exercise Outstanding Remaining Weighted Average Prices at 12/31/03 Contractual Life Exercise Price ---------- ------------- -------------------- ------------------- $.75 60,000 1.58 years $.75 Employee Options Exercisable ---------------------------------------------------------------------- Number Exercise Outstanding Weighted Average Prices at 12/31/03 Exercise Price $.75 60,000 $.75 |
NOTE 17 EARNINGS PER SHARE
The consolidated financial statements are presented in accordance with SFAS No. 128, "Earnings Per Share." Basic earnings per share are computed by dividing the net income by the weighted average number of shares issued and outstanding during the period.
Diluted earnings per share are based on the weighted average number of shares calculated for basic earnings per share purposes increased by (when dilutive) the number of shares that would be outstanding assuming the exercise of certain outstanding stock options or warrants. Stock options to purchase 325,000 shares of the Company's common stock under the convertible debentures and the 60,000 incentive stock options outstanding at December 31, 2003 were not included in the computation of diluted earnings per share because the conversion and exercise prices were greater than the average market price of the common shares and, therefore, the effect would be anti-dilutive.
NOTE 18 LEASES
A subsidiary of the Company leases its office, warehouse and shop facilities from a real estate partnership owned by the President of the Company who is the Company's principal shareholder. The lease is for an initial five year term with a five year renewal option, plus an option to purchase the property at fair market value exercisable at any time during the initial five year term. Annual payments under the lease are $120,000 which the Company believes approximates the fair market value lease payments for the property based upon advice from an independent professional real estate appraisal firm. The Company has not guaranteed the debt of the entity owned by the principal shareholder of the Company.
The Company is committed to various other noncancelable operating leases with remaining terms generally from two to five years.
The minimum commitments under noncancelable leases are:
Years Ending Third Party Related Party December 31 Amount Amount Total ------------------ --------------- --------------- ---------------- 2004 $ 47,436 $ 120,000 $ 167,436 2005 47,436 120,000 167,436 2006 15,812 120,000 135,812 2007 - 90,000 90,000 --------------- --------------- ---------------- Total $ 110,684 $ 450,000 $ 560,684 =============== =============== ================ Total rent expense was $173,351 and $78,131 for the years ended December 31, 2003 and 2002, respectively, including related party expense of $120,000 and $30,000 for the years ended December 31, 2003 and 2002, respectively. |
NOTE 19 RETIREMENT PLANS
The Company's sponsored retirement plans include a 401(k), a defined contribution money purchase plan and a discretionary retirement savings plan. Union employees are covered by various union multiemployer sponsored retirement plans. Vested benefits vary in accordance with years of credited service.
Expense related to the above referenced plans for the years ended December 31, 2003 and 2002 was $146,842 and $259,768, respectively.
NOTE 20 INCOME TAX PROVISION
The income tax provision consisted of the following:
2003 2002 ------------------ ------------------ Current: Federal $ 128,000 $ 170,000 State 48,000 53,000 ------------------ ------------------ 176,000 223,000 ------------------ ------------------ Deferred: Federal 74,000 44,000 State 18,000 8,000 ------------------ ------------------ 92,000 52,000 ------------------ ------------------ $ 268,000 $ 275,000 ================== ================== |
Deferred income taxes reflect the net tax effects of temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the amounts used for income tax purposes. Significant components of the Company's deferred tax liabilities are approximately as follows:
2003 2002 -------------- ------------ Gross deferred tax liabilities: Depreciation $ 159,000 $ 67,000 ============== ============ |
A reconciliation of income taxes computed at the United States federal statutory income tax rate of 34% to the provision for income taxes reflected in the Consolidated Statements of Income for the years ended December 31, 2003 and 2002 is as follows:
2003 2002 ------------------ ------------------ U.S. Federal income tax at Federal statutory rate $ 220,000 $ 227,000 State and local income taxes, net of Federal income tax benefit 43,000 44,000 Other 5,000 4,000 ------------------ ------------------ $ 268,000 $ 275,000 ================== ================== |
NOTE 21 FINANCIAL INSTRUMENTS
Financial instruments, which potentially subject the Company to concentration of credit risk, consist primarily of cash and cash equivalents and accounts receivables.
NOTE 21 FINANCIAL INSTRUMENTS (CONTINUED)
The Company has concentrated its credit risk for cash and cash equivalents by maintaining substantially all of its depository accounts in a single financial institution. Accounts in the bank are guaranteed by the Federal Depository Insurance Corporation (FDIC) up to $100,000. At various times throughout the year the Company had cash balances that exceeded FDIC limit. The financial institution has a strong credit rating, and management believes that the credit risk is minimal.
While the Company does not require collateral on its trade accounts receivable. The Company has not suffered significant losses with respect to trade accounts receivable.
The Company grants contract credit, generally without collateral, to its customers, which are concentrated private companies and state and federal agencies. Management believes that its contract acceptance, billing and collection policies are adequate to minimize potential credit risk.
The Company is exposed to credit loss in the event of nonperformance by its subcontractors. At December 31, 2003, management was not aware of any significant nonperforming subcontractors.
Cash and cash equivalents, trade accounts receivable, contract accounts receivable and accounts payable approximate their fair values due to the short maturity of these instruments.
The line of credit, which has a variable interest rate, and term loans approximate fair value based on their redemption value.
The fair value of the deferred signing bonus due to the former owner of the business acquired is estimated based on discounting the future payments using an interest rate which was the current interest rate for similar loans at the date of inception of this payable.
NOTE 22 SIGNIFICANT VENDORS
For the year ended December 31, 2003, the Company had two vendors who accounted for approximately 25% of total purchases. Accounts payable related to these vendors at December 31, 2003, amounted to 14% of total accounts payable.
NOTE 22 SIGNIFICANT VENDORS (CONTINUED)
For the year ended December 31, 2002, the Company had three vendors who accounted for approximately 56% of total purchases. Accounts payable related to these vendors at December 31, 2002 amounted to 54% of total accounts payables.
NOTE 23 RELATED PARTY TRANSACTIONS
As described in Note 18 of the consolidated financial statements, the Company has entered into a lease agreement with a real estate partnership owened by the President of the Company who is the principal shareholder.
The Company has an informal management agreement with an entity in which the majority shareholder has a material interest. Management fees were $0 and $75,000 for the years ended December 31, 2003 and 2002, respectively. Amounts owed to this entity were $0 and $11,288 for the years ended December 31, 2003 and 2002, respectively.
NOTE 24 SUBSEQUENT EVENT
On April 13, 2004, the Company acquired all of the operating assets of a fabricator and distributor of reinforcing, structural and miscellaneous steel sold to contractors, metalworking firms and end users. The purchase price was approximately $640,000 payable in cash and notes.
4
Exhibit 10.12
This First Amendment to Loan and Security Agreement ("First Amendment") is made effective the day of August, 2003, by and among SOVEREIGN BANK (the "Bank"), a federally-chartered, SAIF-insured savings institution with offices at 1130 Berkshire Boulevard, Wyomissing, Pennsylvania 19610; RADO ENTERPRISES, INC. (f/k/a Moro/Rado Acquisition Corp.), a Pennsylvania corporation ("Borrower"), with offices at 111 Presidential Boulevard, Suite 240, Bala Cynwyd, Pennsylvania 19004; and MORO CORPORATION, a Delaware corporation ("Guarantor").
A. Borrower and the Bank entered into a Loan and Security Agreement dated September 30, 2002 (the "Agreement").
B. Borrower has requested the Bank to extend the Line of Credit Facility and the Bank has agreed to extend the Line of Credit Facility, all as more particularly set forth in this First Amendment.
C. The Bank and Borrower desire to enter into this First Amendment to extend the Line of Credit Facility pursuant to the terms hereof.
D. The Agreement shall remain in full force and effect, without modification or amendment, except as specifically set forth below. All terms not otherwise defined herein shall have the meanings set forth in the Agreement.
NOW, THEREFORE, the parties hereto, intending to be legally bound hereby, and in consideration of the aforementioned Background which is incorporated herein by reference, and in consideration of the terms and conditions set forth herein, agree as follows:
1. Confirmation of Existing Loans. Borrower hereby ratifies, confirms and acknowledges that the statements contained in the foregoing Background are true, accurate and correct and that the Loan Documents, as that term is defined in the Agreement, are valid, binding and in full force and effect as of the date hereof. Borrower further acknowledges, confirms, represents and warrants that it has no defenses, set-offs, counterclaims, or challenges to or against the payment of any sums owing under the Loan Documents, or to the enforceability or validity of the terms thereof. Borrower further acknowledges, confirms, represents and warrants that it has no claims, suits or causes of action against the Bank and hereby remises, releases and forever discharges the Bank, its officers, directors, shareholders, representatives and their successors and assigns, and any of them, from any claims, causes of action, suits, or demands whatsoever in law and equity, which it has or may have from the beginning of the world to the date of this First Amendment. Neither this First Amendment nor any
of the documents executed in connection herewith, is in any way intended to constitute a novation of or to the Loan Documents.
2. Confirmation of Indebtedness. Borrower confirms and acknowledges that the outstanding principal balance of the indebtedness as evidenced by the Loan Documents was __________________________________ ($____________) as of July 31, 2003.
3. All references in the Agreement and/or any of the Loan Documents to "the Agreement" or "this Agreement" shall be understood to refer to the Loan and Security Agreement, as amended by this First Amendment, and as the same may hereafter be amended from time to time. All terms not defined herein shall have the meanings given to them in the Agreement.
4. All references in the Agreement and/or any of the Loan Documents to "Moro/Rado Acquisition Corp." shall be understood to refer to "Rado Enterprises, Inc."
5. Section 2.1 (a) of the Agreement is hereby amended to read in its entirety as follows:
(a) Subject to, and in accordance with, the terms and conditions of this Agreement, the Bank agrees to make advances in integral multiples of $1,000.00 (the "Advances") to Borrower upon request at any time and from time to time during the period commencing on the date hereof and ending on the earlier of (i) the occurrence of an Event of Default (as defined in Section 8.1 hereof), or (ii) June 30, 2004 (the "Loan Termination Date") unless extended in writing by the Bank in its sole discretion, in an amount which in the aggregate shall not exceed the lesser of (A) the Borrowing Base, or (B) $2,000,000.00, in all cases less the sum of the then unpaid principal amount of all previous Advances.
6. Representations and Warranties. Borrower hereby represents and warrants that, as of the date hereof:
(a) Borrower has the authority and has taken all action necessary to enter into this First Amendment;
(b) The representations and warranties of Borrower set forth in Article 4 of the Agreement are true and correct as of the date of this First Amendment as if made on the date hereof; and
(c) As of the date of this First Amendment there does not exist any Event of Default under the Agreement nor does there exist any event which with the passage of time, the giving of notice, or both, would constitute an Event of Default under the Agreement.
7. Certificate(s) of Insurance. Certificate(s) of insurance evidencing that Borrower is in compliance with Section 6.10 of the Agreement as of the date hereof shall be presented to the Bank prior to or concurrently with the signing of this First Amendment.
8. Expenses. Borrower agrees to reimburse the Bank for its
out-of-pocket expenses, including but not limited to attorney's fees and other
costs of preparation and filing concerning this First Amendment and other
documents as required by law or deemed necessary by Bank, including but not
limited to the cost of all lien searches deemed necessary by the Bank. Such
costs and expenses shall be paid simultaneously with the execution of this First
Amendment and all such expenses hereafter incurred shall be paid within fifteen
(15) days after notice by the Bank.
9. Additional Events of Default. Without limiting the generality of the terms and conditions of the Agreement or this First Amendment, the occurrence of any one or more of the following events shall constitute additional Events of Default under the Agreement:
(a) The failure of Borrower to duly perform or observe any obligation, covenant or agreement set forth in this First Amendment;
(b) Any representation or warranty of Borrower set forth herein is discovered to be materially untrue as of the date of this First Amendment, or any statement, certificate or data furnished by Borrower to the Bank heretofore is discovered to be materially untrue as of the date as of which the facts therein set forth were stated or certified to be true.
10. Inconsistencies and Integration. All of the terms, conditions and covenants, to the extent not expressly inconsistent with those set forth herein, of the Agreement or other Loan Documents are incorporated herein by reference and shall remain in full force and effect unaffected or unaltered by the terms of this First Amendment. To the extent there is any inconsistency with the terms of this First Amendment and any of the other Loan Documents, the terms of this First Amendment shall control.
11.Miscellaneous.
(a) Further Assurances. From time to time Borrower shall execute and deliver to the Bank such additional documents and will provide such additional information as the Bank may reasonably request to carry out the intent of this First Amendment.
(b) Governing Law. This First Amendment, and the rights and obligations of the parties under this First Amendment, shall be governed by, and construed and interpreted in accordance with, the domestic, internal laws, but not the law of conflicts of law, of the Commonwealth of Pennsylvania.
(c) Binding Effect and Assignment. This First Amendment shall inure to the benefit of, and shall be binding upon, the respective successors, heirs and assigns of the parties hereto. Borrower shall not assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the Bank.
(d) Severability. If any provision of this First Amendment shall be invalid under applicable laws, such invalidity shall not affect any other
provision of this First Amendment that can be given effect without the invalid provision, and to this end, the provisions hereof are severable.
(e) Counterparts and Headings. This First Amendment may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument. Section headings contained herein are for convenience of reference only and shall in no way affect or be used to construe or interpret this First Amendment.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Loan and Security Agreement as of the day and year first above written.
BORROWER:
RADO ENTERPRISES, INC. (F/K/A
MORO/RADO ACQUISITION CORP.)
By: /S/ David W. Menard --------------- David W. Menard, Chairman |
SOVEREIGN BANK
By: /S/ Michael J. Hassett ------------------ Michael J. Hassett, Vice President |
The undersigned, Moro Corporation, surety to the Bank with respect to all obligations of Borrower to the Bank, has read the above First Amendment to Loan and Security Agreement, understands the terms and conditions thereof and the effect of said First Amendment on Borrower and on itself as surety to the Bank and hereby consents to the execution and delivery of the foregoing First Amendment to Loan and Security Agreement by Borrower to the Bank and further agrees that its guaranty and suretyship of all obligations of Borrower to the Bank shall remain in full force and effect undiminished by the foregoing First Amendment to Loan and Security Agreement.
The undersigned further acknowledges, agrees, confirms and certifies that the Surety Agreement to which it is a party remains in full force and effect, enforceable in accordance with its terms and that it has no defenses, set-offs or counterclaims to the Bank's full enforcement of the terms of said agreement.
MORO CORPORATION
By:/S/ David W. Menard --------------- David W. Menard, President |
This Fourth Amendment to Loan and Security Agreement ("Third Amendment")is made effective the 31st day of August, 2003, by and among SOVEREIGN BANK (the "Bank"), a federally-chartered, SAIF-insured savings institution with offices at 1130 Berkshire Boulevard, Wyomissing, Pennsylvania 19610; J. M. AHLE CO., INC., a Delaware corporation ("J.M. Ahle Co."); DAVID W. and JACQUELINE J. MENARD ("Menards," together with J.M. Ahle Co. sometimes hereinafter referred to as "Borrowers"), with offices at 111 Presidential Boulevard, Suite 240, Bala Cynwyd, Pennsylvania 19004; and MORO CORPORATION, a Delaware corporation ("Guarantor").
A. Borrowers and the Bank entered into a Loan and Security Agreement dated March 31, 2000, as amended (the "Agreement").
B. Borrowers have requested the Bank to extend the Line of Credit Facility and to loan J. M. Ahle Co. (i) an additional $150,000 pursuant to an equipment line of credit facility (the "Equipment Line of Credit Loan") to permit J. M. Ahle Co. to finance ongoing equipment purchases, and (ii) an additional $400,000 pursuant to a term loan to permit J.M. Ahle Co. to refinance its existing term loan with the Bank (the "Additional Term Loan") and the Bank has agreed to extend the Line of Credit Facility, make the Equipment Line of Credit Loan and make the Additional Term Loan, all as more particularly set forth in this Fourth Amendment.
C. The Bank and Borrowers desire to enter into this Fourth Amendment to extend the Line of Credit Facility, make the Equipment Line of Credit Loan to J. M. Ahle Co. and make the Additional Term Loan to J. M. Ahle Co. pursuant to the terms hereof.
D. The Agreement shall remain in full force and effect, without modification or amendment, except as specifically set forth below. All terms not otherwise defined herein shall have the meanings set forth in the Agreement.
NOW, THEREFORE, the parties hereto, intending to be legally bound hereby, and in consideration of the aforementioned Background which is incorporated herein by reference, and in consideration of the terms and conditions set forth herein, agree as follows:
1. Confirmation of Existing Loans. Borrowers hereby ratify, confirm and acknowledge that the statements contained in the foregoing Background are true, accurate and correct and that the Loan Documents, as that term is defined in the Agreement, are valid, binding and in full force and effect as of the date hereof. Borrowers further acknowledge, confirm, represent and warrant that they
have no defenses, set-offs, counterclaims, or challenges to or against the payment of any sums owing under the Loan Documents, or to the enforceability or validity of the terms thereof. Borrowers further acknowledge, confirm, represent and warrant that they have no claims, suits or causes of action against the Bank and hereby remise, release and forever discharge the Bank, its officers, directors, shareholders, representatives and their successors and assigns, and any of them, from any claims, causes of action, suits, or demands whatsoever in law and equity, which they have or may have from the beginning of the world to the date of this Fourth Amendment. Neither this Fourth Amendment nor any of the documents executed in connection herewith, is in any way intended to constitute a novation of or to the Loan Documents.
2. Confirmation of Indebtedness. Borrowers confirm and acknowledge that the outstanding principal balance of the indebtedness as evidenced by the Loan Documents was ____________________________ Dollars ($_________) as of July 31, 2003.
3. All references in the Agreement and/or any of the Loan Documents to "the Agreement" or "this Agreement" shall be understood to refer to the Loan and Security Agreement, as amended by this Fourth Amendment, and as the same may hereafter be amended from time to time. All terms not defined herein shall have the meanings given to them in the Agreement.
4. The following definitions are hereby added to Section 1.1 of the Agreement:
Additional Term Loan. The meaning provided at Section 2.9 hereof.
Additional Term Note. The term note executed by J. M. Ahle Co. in the principal amount specified in Section 2.10 hereof and in the form of Exhibit "B" attached hereto and made a part hereof.
Equipment Line of Credit or Equipment Line of Credit Facility. The meaning provided at Section 2.7 hereof.
Equipment Line of Credit Note. The equipment line of credit note executed by J. M. Ahle Co. in the principal amount specified in Section 2.8 hereof and in the form of Exhibit "A" attached hereto and made a part hereof.
Equipment Line of Credit Loan Termination Date. The meaning provided at Section 2.7 hereof.
5. Section 2.1 (a) of the Agreement is hereby amended to read in its entirety as follows:
(a) Subject to, and in accordance with, the terms and conditions of this Agreement, the Bank agrees to make advances in integral multiples of $1,000.00 (the "Advances") to J.M. Ahle Co. upon request at any time and from time to time during the period commencing on the date hereof and ending on the earlier of (i) the occurrence of an Event of Default (as defined in Section 8.1 hereof), or (ii) June 30, 2004 (the "Loan Termination Date") unless extended in writing by the Bank in its sole discretion, in an amount which in the aggregate
shall not exceed the lesser of (A) the Borrowing Base, or (B) $2,000,000.00, in all cases less the sum of the then unpaid principal amount of all previous Advances.
6. A new Section 2.7 is added to the Agreement to read in its entirety as follows:
2.7 Equipment Line of Credit Facility.
(a) Subject to, and in accordance with, the terms and conditions of this Agreement, the Bank agrees to make advances in integral multiples of $1,000 (the "Advances") to J. M. Ahle Co. upon request at any time and from time to time during the period commencing on the date hereof and ending on the earlier of (i) the occurrence of an Event of Default (as defined in Section 8.1 hereof), or (ii) June 30, 2004 (the "Equipment Line of Credit Loan Termination Date") unless extended in writing by the Bank in its sole discretion, in an amount which, in each instance, shall not exceed eighty percent (80%) of the lesser of the net book value or the current market value of the specific equipment being purchased and, in the aggregate, shall not exceed $150,000 (the "Equipment Line of Credit" or the "Equipment Line of Credit Facility").
(b) J. M. Ahle Co. may request an Advance by notice to the Bank not later than 2:00 P.M., Philadelphia, Pennsylvania time, on the Business Day on which J. M. Ahle Co. wishes the Bank to make the Advance.
(c) J. M. Ahle Co., subject to the terms and conditions of this Agreement, may reborrow any amount repaid by J. M. Ahle Co. at any time and from
time to time on or before the termination of the Bank's commitment under this
Section 2.7.
(d) The term of this Equipment Line of Credit shall commence on the date hereof and, unless earlier terminated, shall terminate on the earlier to occur of (i) an Event of Default, or (ii) the Equipment Line of Credit Loan Termination Date, unless extended in writing by the Bank in its sole discretion.
7. A new Section 2.8 is added to the Agreement to read in its entirety as follows:
2.8 Equipment Line of Credit Note. The obligation of J. M. Ahle Co. to pay the principal of, and accrued interest on, the Line of Credit shall be evidenced by its promissory note dated this date (the "Equipment Line of Credit Note"):
(a) payable to the order of the Bank in the face amount of One Hundred Fifty Thousand Dollars ($150,000);
(b) bearing interest on its unpaid principal amount of all Advances at an annualrate equal to the Prime Rate plus one quarter percent (.25%). Interest shall fluctuate with changes in the Prime Rate, shall be computed on the actual number of days elapsed on the basis of a 360-day year and shall be payable monthly on the first day of each month;
(c) payable as to interest monthly in arrears on the first day of each calendarmonth commencing September 1, 2003 through and including the first day on which:
(i) the Equipment Line of Credit shall have been terminated, and
(ii) J. M. Ahle Co. shall have repaid in full the Line of Credit (it being understood that interest shall again accrue upon any subsequent borrowing under this Equipment Line of Credit);
(d) payable as to principal as follows:
(i) if the unpaid balance of the Line of Credit exceeds the
limitations set forth in Section 2.7(a) hereof, at any time, then within three
(3) Business Days after notification from the Bank, but only as to such excess;
or
(ii) in full on the earlier to occur of an Event of Default or the Equipment Line of Credit Loan Termination Date, unless extended in writing by the Bank in its sole discretion;
(e) secured by the Collateral and the Surety Agreement;
(f) prepayable by J. M. Ahle Co. without penalty or premium but with accrued interest to the date of such prepayment on the amount prepaid, at any time and from time to time, in whole or in part, upon notification to the Bank of such prepayment not later than 10:00 a.m. on the date of such prepayment; and
(g) substantially in the form of Exhibit "A" attached hereto and made a part hereof.
8. A new Section 2.9 is added to the Agreement to read in its entirety as follows:
2.9 Additional Term Loan. Subject to, and in accordance with, the terms and conditions of this Agreement, the Bank agrees to loan J. M. Ahle Co. the principal amount of Four Hundred Thousand Dollars ($400,000.00) (the "Additional Term Loan").
9. A new Section 2.10 is added to the Agreement to read in its entirety as follows:
2.10 Term Note. The obligation of J.M. Ahle Co. to pay the principal of, and accrued interest on, the Additional Term Loan shall be evidenced by its promissory note dated this date (the "Additional Term Note"):
(a) payable to order of the Bank in the face amount of Four Hundred Thousand Dollars ($400,000.00);
(b) bearing interest on the unpaid principal amount at an annual rate equal to the Prime Rate plus one-half percent (.50%);
(c) with interest payable on a monthly basis in arrears on the first day of each calendar month commencing September 1, 2003;
(d) with principal payable in seventy-one (71) equal, consecutive monthly installments in the amount of $5,556.00 each, plus interest thereon, commencing on September 1, 2003 and continuing on the first day of each month thereafter until August 1, 2009, at which time the remaining unpaid principal balance, plus all accrued interest thereon, shall be paid in full, or due in full upon the occurrence of an Event of Default;
(e) prepayable by J.M. Ahle Co. without penalty or premium but with accrued interest to the date of such prepayment on the amount prepaid, at any time and from time to time, in whole or in part, upon notification to the Bank of such prepayment not later than 10:00 a.m. on the date of such prepayment;
(f) secured by the Collateral and the Surety Agreement; and
(g) in the form of Exhibit "B" attached hereto and made a part hereof.
10. Sections 2.7, 2.8, 2.9 and 2.10 of the Agreement are hereby renumbered as Sections 2.11, 2.12, 2.13 and 2.14, respectively.
11. Representations and Warranties. Borrowers hereby represent and warrant that, as of the date hereof:
(a) Borrowers have the authority and have taken all action necessary to enter into this Fourth Amendment;
(b) The representations and warranties of Borrowers set forth in Article 4 of the Agreement are true and correct as of the date of this Fourth Amendment as if made on the date hereof; and
(c) As of the date of this Fourth Amendment there does not exist any Event of Default under the Agreement nor does there exist any event which with the passage of time, the giving of notice, or both, would constitute an Event of Default under the Agreement.
12. Certificate(s) of Insurance. Certificate(s) of insurance evidencing that Borrowers are in compliance with Section 6.10 of the Agreement as of the date hereof shall be presented to the Bank prior to or concurrently with the signing of this Fourth Amendment.
13. Expenses. Borrowers agrees to reimburse the Bank for its out-of-pocket expenses, including but not limited to attorney's fees and other costs of preparation and filing concerning this Fourth Amendment and other documents as required by law or deemed necessary by Bank, including, but not limited to, the cost of all lien searches deemed necessary by the Bank. Such costs and expenses shall be paid simultaneously with the execution of this Fourth Amendment and all such expenses hereafter incurred shall be paid within fifteen (15) days after notice by the Bank.
14. Additional Events of Default. Without limiting the generality of the terms and conditions of the Agreement or this Fourth Amendment, the occurrence of any one or more of the following events shall constitute additional Events of Default under the Agreement:
(a) The failure of either Borrower to duly perform or observe any obligation, covenant or agreement set forth in this Fourth Amendment;
(b) Any representation or warranty of either Borrower set forth herein is discovered to be materially untrue as of the date of this Fourth Amendment, or any statement, certificate or data furnished by Borrowers to the Bank heretofore is discovered to be materially untrue as of the date as of which the facts therein set forth were stated or certified to be true.
15. Inconsistencies and Integration. All of the terms, conditions and covenants, to the extent not expressly inconsistent with those set forth herein, of the Agreement or other Loan Documents are incorporated herein by reference and shall remain in full force and effect unaffected or unaltered by the terms of this Fourth Amendment. To the extent there is any inconsistency with the terms of this Fourth Amendment and any of the other Loan Documents, the terms of this Fourth Amendment shall control.
16 Miscellaneous.
(a) Further Assurances. From time to time Borrowers shall execute and deliver to the Bank such additional documents and will provide such additional information as the Bank may reasonably request to carry out the intent of this Fourth Amendment.
(b) Governing Law. This Fourth Amendment, and the rights and obligations of the parties under this Fourth Amendment, shall be governed by, and construed and interpreted in accordance with, the domestic, internal laws, but not the law of conflicts of law, of the Commonwealth of Pennsylvania.
(c) Binding Effect and Assignment. This Fourth Amendment shall inure to the benefit of, and shall be binding upon, the respective successors, heirs and assigns of the parties hereto. Neither Borrower shall assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the Bank.
(d) Severability. If any provision of this Fourth Amendment shall be invalid under applicable laws, such invalidity shall not affect any other provision of this Fourth Amendment that can be given effect without the invalid provision, and to this end, the provisions hereof are severable.
(e) Counterparts and Headings. This Fourth Amendment may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument. Section headings contained herein are for convenience of reference only and shall in no way affect or be used to construe or interpret this Fourth Amendment.
IN WITNESS WHEREOF, the parties hereto have executed this Fourth Amendment to Loan and Security Agreement as of the day and year first above written.
BORROWERS:
J. M. AHLE CO. INC.
By:/S/ David W. Menard ------------------- David W. Menard, President /S/ David W. Menard --- --------------- David W. Menard, individually, on a joint and several basis with Jacqueline J. Menard /S/ Jacqueline J. Menard ------------------------ Jacqueline J. Menard, individually, on a joint and several basis with David W. Menard |
SOVEREIGN BANK
By:/S/ Michael J. Hassett ------------------------- Michael J. Hassett, Vice President |
The undersigned, Moro Corporation, surety to the Bank with respect to all obligations of Borrowers to the Bank, has read the above Fourth Amendment to Loan and Security Agreement, understands the terms and conditions thereof and the effect of said Fourth Amendment on Borrowers and on itself as surety to the Bank. The undersigned hereby consents to the execution and delivery of the foregoing Fourth Amendment to Loan and Security Agreement by Borrowers to the Bank and further agrees that its guaranty and suretyship of all obligations of Borrowers to the Bank shall remain in full force and effect undiminished by the foregoing Fourth Amendment to Loan and Security Agreement.
The undersigned further acknowledges, agrees, confirms and certifies that the Surety Agreement to which it is a party remains in full force and effect, enforceable in accordance with its terms and that it has no defenses, set-offs or counterclaims to the Bank's full enforcement of the terms of said agreement.
MORO CORPORATION
By: /S/ David W. Menard --------------------- David W. Menard, President |
$400,000.00 Bala Cynwyd, Pennsylvania Date: August 31, 2003
FOR VALUE RECEIVED, without set-off or deduction, the undersigned, J. M. AHLE CO., INC., a Delaware corporation ("Maker"), in accordance with the terms and conditions set forth below, hereby promises to pay to the order of SOVEREIGN BANK (the "Bank"), the principal sum of up to Four Hundred Thousand Dollars ($400,000.00), in lawful money of the United States of America, together with interest thereon from the date hereof at an annual rate equal to the "Prime Rate" (as defined herein) plus one-half percent (.50%), and both payable as hereinafter provided; provided, however, that the amount advanced by the Bank in each instance shall not exceed eighty percent (80%) of the lesser of the net book value or the current market value of the specific equipment being purchased and, in the aggregate, shall not exceed $400,000.00.
(a) The "Prime Rate" is the floating annual rate of interest that is announced from time to time by the Bank as the Prime Rate and is used by the Bank as a reference base with respect to different rates charged to borrowers. The Prime Rate shall change simultaneously and automatically upon the Bank's designation of any change in such Prime Rate. The Bank's determination and designation from time to time of the referenced rate shall not in any way preclude the Bank from making loans to other borrowers at a rate which is higher or lower than or different from the Prime Rate.
(b) Interest on amounts advanced to Maker under this Note shall be payable monthly, in arrears, on the first day of each month commencing on September 1, 2003.
(c) The principal balance of this Note shall be payable in seventy-one (71) equal, consecutive monthly installments of $5,556.00 each, plus interest thereon, commencing on September 1, 2003, and continuing on the first day of each month thereafter until August 1, 2009, at which time the remaining unpaid principal, plus accrued interest thereon, shall be paid in full, or due in full upon the occurrence of an Event of Default (as defined in Article 8 of the Loan Agreement).
(d) Upon the occurrence of an Event of Default, the rate of interest shall be increased to a rate equal to two percent (2%) above the then current rate of interest specified herein (the "Default Rate"). Interest at the rate provided for herein, or the Default Rate, shall continue to accrue at such rate, and continue to be paid even after default, maturity, acceleration, recovery of judgment, bankruptcy or insolvency proceeding of any kind until such monetary default has been cured.
(e) If any of the aforesaid payments of principal and interest shall become overdue for a period in excess of ten (10) days, Maker shall pay the Bank a "late charge" of five percent (5%) of the monthly principal payment (plus the accrued interest thereon) then past due.
(f) This Note shall be prepayable by Maker at any time without penalty or premium.
(g) All payments of principal and interest with regard to this Note shall be made in lawful money of the United States of America in immediately available funds at the Bank's office at 1130 Berkshire Boulevard, Wyomissing, Pennsylvania 19610, or at such other place as the Bank shall designate in writing.
(h) Maker shall not be obligated to pay and the Bank shall not collect interest at a rate in excess of the maximum permitted by law or the maximum that will not subject the Bank to any civil or criminal penalties. If, because of the acceleration of maturity, the payment of interest in advance or any other reason, Maker is required, under the provisions of the Loan and Security Agreement, dated March 31, 2000, between Maker and the Bank, as amended (the "Loan Agreement"), to pay interest at a rate in excess of such maximum rate, the rate of interest under such provisions shall immediately and automatically be reduced to such maximum rate, and any payment made in excess of such maximum rate, together with interest thereon at a rate provided herein from the date of such payment, shall be immediately and automatically applied to the reduction of the unpaid principal balance of this Note as of the date on which such excess payment is made. If the amount to be so applied to reduction of the unpaid principal balance exceeds the unpaid principal balance, the amount of such excess shall be refunded by the Bank to Maker.
(i) This Note is the Note referred to in Section 2.8 of the Loan Agreement and is entitled to all the benefits of such Loan Agreement and all the security referred to therein. In the event of a conflict between the terms of this Note and the terms of the Loan Agreement, the terms of the Loan Agreement shall control.
(j) All of the agreements, conditions, covenants, provisions and stipulations contained in the Loan Agreement (as defined in said Loan Agreement), which are to be kept and performed by Maker are hereby made a part of this Note to the same extent and with the same force and effect as if they were fully set forth herein, and Maker covenants and agrees to keep and perform them, or cause them to be kept and performed, strictly in accordance with their terms.
(k) Upon the occurrence of an Event of Default, then, and in such event, the Bank may declare this Note to be due and payable, whereupon the entire unpaid balance of principal, together with all accrued interest thereon, shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, anything herein or in the Loan Agreement to the contrary notwithstanding.
(l) UPON THE OCCURRENCE OF AN EVENT OF DEFAULT, MAKER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS THE PROTHONOTARY OR ANY ATTORNEY OF ANY COURT OF THE COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE TO APPEAR AT ANY TIME FOR MAKER I N ANY ACTION BROUGHT AGAINST SUCH MAKER ON THIS NOTE AT THE SUIT OF THE BANK, WITH OR WITHOUT DECLARATION FILED, AS OF ANY TERM, AND THEREIN TO CONFESS OR ENTER JUDGMENT AGAINST MAKER FOR THE ENTIRE UNPAID PRINCIPAL OF THIS NOTE AND ALL OTHER SUMS PAYABLE BY OR ON BEHALF OF MAKER PURSUANT TO THE TERMS OF THIS NOTE OR THE LOAN AGREEMENT, AND ALL ARREARAGES OF INTEREST THEREON, TOGETHER WITH COSTS OF SUIT, ATTORNEY'S COMMISSION FOR COLLECTION OF FIVE PERCENT (5%) OF THE TOTAL AMOUNT THEN DUE BY MAKER TO THE BANK (BUT IN ANY EVENT NOT LESS THAN ONE THOUSAND DOLLARS ($1,000)), AND FOR SO DOING THIS NOTE OR A COPY HEREOF VERIFIED BY AFFIDAVIT SHALL BE A SUFFICIENT WARRANT. THE AUTHORITY GRANTED HEREIN TO CONFESS JUDGMENT SHALL NOT BE EXHAUSTED BY ANY EXERCISE THEREOF BUT SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL THE AMOUNTS DUE HEREUNDER.
(m) The remedies of the Bank as provided herein or in the Loan Agreement, and the warranties contained herein or in the Loan Agreement, shall be cumulative and concurrent, and may be pursued singly, successively, or
together at the sole discretion of the Bank, and may be exercised as often as occasion therefor shall occur; and the failure to exercise any such right or remedy shall in no event be construed as a waiver or release thereof.
(n) Maker hereby waives and releases all errors, defects and imperfections in any proceedings instituted by the Bank under the terms of this Note or of the Loan Agreement, as well as all benefit that might accrue to Maker by virtue of any present or future laws exempting any property, real or personal, or any part of the proceeds arising from any sale of any such property, from attachment, levy, or sale under execution, or providing for any stay of execution, exemption from civil process, or extension of time for payment; and Maker agrees that any real estate that may be levied upon pursuant to a judgment obtained by virtue hereof, on any writ of execution issued thereon, may be sold upon any such writ in whole or in part in any order desired by the Bank.
(o) Maker and all endorsers, sureties and guarantors hereby jointly and severally waive presentment for payment, demand, notice of demand, protest and notice of protest of this Note, and all other notices in connection with the delivery, acceptance, performance, default, or enforcement of the payment of this Note, and they agree that the liability of each of them shall be unconditional, without regard to the liability of any other party, and shall not be affected in any manner by any indulgence, extension of time, renewal, waiver or modification granted or consent to any and all extensions of time, renewals, waivers, or payment or other provisions of this Note, and to the release of the collateral or any part thereof, with or without substitution, and agree that additional makers, endorsers, guarantors, or sureties may become parties hereto without notice to them or affecting their liability hereunder.
(p) The Bank shall not be deemed, by any act of omission or commission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by the Bank, and then only to the extent specifically set forth in the writing. A waiver on one event shall not be construed as continuing or as a bar to or waiver of any right or remedy to a subsequent event.
(q) This instrument shall be governed by and construed according to the domestic, internal law (but not the law of conflict of laws) of the Commonwealth of Pennsylvania.
(r) Whenever used, the singular number shall include the plural, the plural the singular, the use of any gender shall be applicable to all genders, and the words "Bank" and "Maker" shall be deemed to include the respective successors and assigns of the Bank and Maker.
(s) Any provision contained in this Note which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability, without invalidating the remaining provisions hereof and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
IN WITNESS WHEREOF, Maker, intending to be legally bound hereby, has caused this Note to be duly executed by an authorized officer the day and year first above written.
J. M. AHLE CO., INC.
By: /s/ David W. Menard -------------------- David W. Menard, President |
Exhibit 10.15
THIS AMENDED AND RESTATED LINE OF CREDIT NOTE AMENDS AND RESTATES, BUT DOES NOT REPAY, EFFECTIVE AUGUST 14, 2003, THE AMENDED AND RESTATED LINE OF CREDIT NOTE DATED AUGUST , 2002 FROM J. M. AHLE CO., INC. TO SOVEREIGN BANK IN THE STATED PRINCIPAL AMOUNT OF $2,000,000.00
$2,000,000.00 Bala Cynwyd, Pennsylvania August 14, 2003
FOR VALUE RECEIVED, without defalcation, J. M. AHLE CO., INC., a Delaware corporation ("Maker"), in accordance with the terms and conditions set forth below, hereby promises to pay to the order of SOVEREIGN BANK (the "Bank"), the principal sum of Two Million Dollars ($2,000,000.00) or such lesser amount as may be advanced to Maker, in lawful money of the United States of America, together with interest thereon at an annual rate equal to the "Prime Rate" (as defined herein) plus one-quarter percent (.25%); provided, however, that the credit availability evidenced by this Note shall not exceed in the aggregate the Borrowing Base (as defined in the Loan Agreement [as defined herein]), less the sum of the then unpaid principal amount of all previous Advances (as defined in the Loan Agreement).
(a) The "Prime Rate" is the floating annual rate of interest that is announced from time to time by the Bank as the Prime Rate and is used by the Bank as a reference base with respect to different rates charged to borrowers. The Prime Rate shall change simultaneously and automatically upon the Bank's designation of any change in such Prime Rate. The Bank's determination and designation from time to time of the referenced rate shall not in any way preclude the Bank from making loans to other borrowers at a rate which is higher or lower than or different from the Prime Rate.
(b) Interest shall be due and payable monthly in arrears commencing September 1, 2003 and continuing on the first day of each month thereafter until the Bank's credit availability evidenced by this Note has expired or been terminated, and the principal amount of and all accrued interest with regard to this Note have been paid in full (it being understood that interest shall again accrue upon any subsequent borrowing under the Line of Credit).
(c) Interest shall be computed on the basis of a 360-day year for the actual number of days elapsed (365/360 or 366/360 as appropriate).
(d) Principal shall be due and payable as follows:
(i) if the unpaid balance of this Note exceeds the limitations set forth above, at any time, then within three (3) Business Days (as defined in the Loan Agreement) after notification from the Bank, but only as to such excess,
(ii) in full on the earlier to occur of an Event of Default or June 30, 2004.
(e) Upon the occurrence of a default hereunder, which default remains uncured after five (5) days notice to Maker from the Bank, the rate of interest shall be increased to a rate equal to two percent (2%) above the Prime Rate, payable on the date of default (the "Default Rate"). Interest at the rate provided for herein, or the Default Rate, shall continue to accrue at such rate, and continue to be paid even after default, maturity, acceleration, recovery of judgment, bankruptcy or insolvency proceeding of any kind.
(f) If any of the aforesaid payments of interest shall become overdue for a period in excess of ten (10) days, Maker shall pay the Bank a "late charge" of five percent (5%) of the monthly interest payment then past due.
(g) All payments of principal and interest with regard to this Note shall be made in lawful money of the United States of America in immediately available funds at the Bank's office at 1130 Berkshire Boulevard, Wyomissing, Pennsylvania 19610 or at such other place as the Bank shall designate in writing.
(h) Maker shall not be obligated to pay and the Bank shall not collect interest at a rate in excess of the maximum permitted by law or the maximum that will not subject the Bank to any civil or criminal penalties. If, because of the acceleration of maturity, the payment of interest in advance or any other reason, Maker is required, under the provisions of the Loan and Security Agreement dated March 31, 2000, as amended (the "Loan Agreement"), to pay interest at a rate in excess of such maximum rate, the rate of interest under such provisions shall immediately and automatically be reduced to such maximum rate, and any payment made in excess of such maximum rate, together with interest thereon at a rate provided herein from the date of such payment, shall be immediately and automatically applied to the reduction of the unpaid principal balance of this Note as of the date on which such excess payment is made. If the amount to be so applied to reduction of the unpaid principal balance exceeds the unpaid principal balance, the amount of such excess shall be refunded by the Bank to Maker.
(i) Notwithstanding the face amount of this Note, the liability of Maker under this Note shall be limited at all times to the unpaid principal amount of, all accrued unpaid interest on, all late charges with respect to, and all costs incurred in the collection of any sum due under and in connection with the Line of Credit Facility (as provided in Section 2.1 of the Loan Agreement) and as reflected on the records of the Bank.
(j) This Note is the Note referred to in Section 2.2 of the Loan Agreement and is entitled to all the benefits of such Loan Agreement and all the security referred to therein. In the event of a conflict between the terms of this Note and the terms of the Loan Agreement, the terms of the Loan Agreement shall control.
(k) All of the agreements, conditions, covenants, provisions and stipulations contained in the Loan Agreement which are to be kept and performed by Maker are hereby made a part of this Note to the same extent and with the same force and effect as if they were fully set forth herein, and Maker covenants and agrees to keep and perform them, or cause them to be kept and performed, strictly in accordance with their terms.
(l) Upon the occurrence of an Event of Default as that term is defined in Article 8 of the Loan Agreement, then, and in such event, the Bank may declare this Note to be due and payable, whereupon the entire unpaid balance of principal, together with all accrued interest thereon, shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, anything herein or in the Loan Agreement to the contrary notwithstanding.
(m) UPON THE OCCURRENCE OF AN EVENT OF DEFAULT AS THAT TERM IS DEFINED IN ARTICLE 8 OF THE LOAN AGREEMENT, MAKER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS THE PROTHONOTARY OR ANY ATTORNEY OF ANY COURT OF THE COMMONWEALTH OF PENNSYLVANIA TO APPEAR AT ANY TIME FOR MAKER IN ANY ACTION BROUGHT AGAINST MAKER ON THIS NOTE AT THE SUIT OF THE BANK, WITH OR WITHOUT DECLARATION FILED, AS OF ANY TERM, AND THEREIN TO CONFESS OR ENTER JUDGMENT AGAINST MAKER FOR THE ENTIRE UNPAID PRINCIPAL OF THIS NOTE AND ALL OTHER SUMS PAYABLE BY OR ON BEHALF OF MAKER PURSUANT TO THE TERMS OF THIS NOTE OR THE LOAN AGREEMENT, AND ALL ARREARAGES OF INTEREST THEREON, TOGETHER WITH COSTS OF SUIT, REASONABLE ATTORNEY'S COMMISSION FOR COLLECTION OF THE TOTAL AMOUNT THEN DUE BY MAKER TO THE BANK (BUT IN ANY EVENT NOT LESS THAN THREE THOUSAND DOLLARS ($3,000.00)), AND FOR SO DOING THIS NOTE OR A COPY HEREOF VERIFIED BY AFFIDAVIT SHALL BE A SUFFICIENT WARRANT. THE AUTHORITY GRANTED HEREIN TO CONFESS JUDGMENT SHALL NOT BE EXHAUSTED BY ANY EXERCISE THEREOF BUT SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE HEREUNDER.
(n) The remedies of the Bank as provided herein or in the Loan Agreement, and the warranties contained herein or in the Loan Agreement, shall be cumulative and concurrent, and may be pursued singly, successively, or together at the sole discretion of the Bank, and may be exercised as often as occasion therefor shall occur; and the failure to exercise any such right or remedy shall in no event be construed as a waiver or release thereof.
(o) Maker hereby waives and releases all errors, defects and imperfections in any proceedings instituted by the Bank under the terms of this Note or of the Loan Agreement, as well as all benefit that might accrue to Maker by virtue of any present or future laws exempting any property, real or personal, or any part of the proceeds arising from any sale of any such property, from attachment, levy, or sale under execution, or providing for any stay of execution, exemption from civil process, or extension of time for payment; and Maker agrees that any real estate that may be levied upon pursuant to a judgment obtained by virtue hereof, on any writ of execution issued thereon, may be sold upon any such writ
in whole or in part in any order desired by the Bank.
(p) Maker and all endorsers, sureties and guarantors hereby jointly and severally waive presentment for payment, demand, notice of demand, protest and notice of protest of this Note, and all other notices in connection with the delivery, acceptance, performance, default, or enforcement of the payment of this Note, and they agree that the liability of each of them shall be unconditional, without regard to the liability of any other party, and shall not be affected in any manner by any indulgence, extension of time, renewal, waiver or modification granted or consent to any and all extensions of time, renewals, waivers, or modifications that may be granted by the Bank with respect to the payment or other provisions of this Note, and to the release of the collateral or any part thereof, with or without substitution, and agree that additional makers, endorsers, guarantors, or sureties may become parties hereto without notice to them or affecting their liability hereunder.
(q) The Bank shall not be deemed, by any act of omission or commission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by the Bank, and then only to the extent specifically set forth in the writing. A waiver on one event shall not be construed as continuing or as a bar to or waiver of any right or remedy to a subsequent event.
(r) This instrument shall be governed by and construed according to the domestic internal laws (but not the law of conflict of laws) of the Commonwealth of Pennsylvania.
(s) Whenever used, the singular number shall include the plural, the plural the singular, the use of any gender shall be applicable to all genders, and the words the "Bank" and "Maker" shall be deemed to include the respective successors and assigns of the Bank and Maker.
(t) Any provision contained in this Note which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability, without invalidating the remaining provisions hereof and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
IN WITNESS WHEREOF, Maker, intending to be legally bound hereby, has caused this Note to be duly executed by an authorized officer, and its corporate seal to be affixed and attested, the day and year first above written.
J. M. AHLE CO., INC.
By: /S/ David W. Menard -------------------- David W. Menard, President |
$150,000.00 Bala Cynwyd, Pennsylvania August 31, 2002
FOR VALUE RECEIVED, without defalcation, J. M. AHLE CO., INC., a Delaware corporation ("Maker"), in accordance with the terms and conditions set forth below, hereby promises to pay to the order of SOVEREIGN BANK (the "Bank"), the principal sum of One Hundred Fifty Thousand Dollars ($150,000.00) or such lesser amount as may be advanced to Maker, in lawful money of the United States of America, together with interest thereon at an annual rate equal to the "Prime Rate" (as defined herein) plus one-quarter percent (.25%); provided, however, that the amount advanced by Bank in each instance shall not exceed eighty percent (80%) of the lesser of the net book value or the current market value of the specific equipment being purchased and, in the aggregate, shall not exceed $150,000.00.
(a) The "Prime Rate" is the floating annual rate of interest that is announced from time to time by the Bank as the Prime Rate and is used by the Bank as a reference base with respect to different rates charged to borrowers. The Prime Rate shall change simultaneously and automatically upon the Bank's designation of any change in such Prime Rate. The Bank's determination and designation from time to time of the referenced rate shall not in any way preclude the Bank from making loans to other borrowers at a rate which is higher or lower than or different from the Prime Rate.
(b) Interest shall be due and payable monthly in arrears commencing September 1, 2003 and continuing on the first day of each month thereafter until the Bank's credit availability evidenced by this Note has expired or been terminated, and the principal amount of and all accrued interest with regard to this Note have been paid in full (it being understood that interest shall again accrue upon any subsequent borrowing under the Equipment Line of Credit).
(c) Interest shall be computed on the basis of a 360-day year for the actual number of days elapsed (365/360 or 366/360 as appropriate).
(d) Principal shall be due and payable in full on the earlier to occur of an Event of Default or June 30, 2004.
(e) Upon the occurrence of a default hereunder, which default remains uncured after five (5) days notice to Maker from the Bank, the rate of interest shall be increased to a rate equal to two percent (2%) above the Prime Rate, payable on the date of default (the "Default Rate"). Interest at the rate provided for herein, or the Default Rate, shall continue to accrue at such rate, and continue to be paid even after default, maturity, acceleration, recovery of judgment, bankruptcy or insolvency proceeding of any kind.
(f) If any of the aforesaid payments of interest shall become overdue for a period in excess of ten (10) days, Maker shall pay the Bank a "late charge" of five percent (5%) of the monthly interest payment then past due.
(g) All payments of principal and interest with regard to this Note shall be made in lawful money of the United States of America in immediately available funds at the Bank's office at 1130 Berkshire Boulevard, Wyomissing, Pennsylvania 19610 or at such other place as the Bank shall designate in writing.
(h) Maker shall not be obligated to pay and the Bank shall not collect interest at a rate in excess of the maximum permitted by law or the maximum that will not subject the Bank to any civil or criminal penalties. If, because of the acceleration of maturity, the payment of interest in advance or any other reason, Maker is required, under the provisions of the Loan and Security Agreement dated March 31, 2000, as amended (the "Loan Agreement"), to pay interest at a rate in excess of such maximum rate, the rate of interest under such provisions shall immediately and automatically be reduced to such maximum rate, and any payment made in excess of such maximum rate, together with interest thereon at a rate provided herein from the date of such payment, shall be immediately and automatically applied to the reduction of the unpaid principal balance of this Note as of the date on which such excess payment is made. If the amount to be so applied to reduction of the unpaid principal balance exceeds the unpaid principal balance, the amount of such excess shall be refunded by the Bank to Maker.
(i) Notwithstanding the face amount of this Note, the liability of Maker under this Note shall be limited at all times to the unpaid principal amount of, all accrued unpaid interest on, all late charges with respect to, and all costs incurred in the collection of any sum due under and in connection with the Equipment Line of Credit Facility (as provided in Section 2.6 of the Loan Agreement) and as reflected on the records of the Bank.
(j) This Note is the Note referred to in Section 2.7 of the Loan Agreement and is entitled to all the benefits of such Loan Agreement and all the security referred to therein. In the event of a conflict between the terms of this Note and the terms of the Loan Agreement, the terms of the Loan Agreement shall control.
(k) All of the agreements, conditions, covenants, provisions and stipulations contained in the Loan Agreement which are to be kept and performed by Maker are hereby made a part of this Note to the same extent and with the same force and effect as if they were fully set forth herein, and Maker covenants and agrees to keep and perform them, or cause them to be kept and performed, strictly in accordance with their terms.
(l) Upon the occurrence of an Event of Default as that term is defined in Article 8 of the Loan Agreement, then, and in such event, the Bank may declare this Note to be due and payable, whereupon the entire unpaid balance of principal, together with all accrued interest thereon, shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, anything herein or in the Loan Agreement to the contrary notwithstanding.
(m) UPON THE OCCURRENCE OF AN EVENT OF DEFAULT AS THAT TERM IS DEFINED IN ARTICLE 8 OF THE LOAN AGREEMENT, MAKER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS THE PROTHONOTARY OR ANY ATTORNEY OF ANY COURT OF THE COMMONWEALTH OF PENNSYLVANIA TO APPEAR AT ANY TIME FOR MAKER IN ANY ACTION BROUGHT AGAINST MAKER ON THIS NOTE AT THE SUIT OF THE BANK, WITH OR WITHOUT DECLARATION FILED, AS OF ANY TERM, AND THEREIN TO CONFESS OR ENTER JUDGMENT AGAINST MAKER FOR THE ENTIRE UNPAID PRINCIPAL OF THIS NOTE AND ALL OTHER SUMS PAYABLE BY OR ON BEHALF OF MAKER PURSUANT TO THE TERMS OF THIS NOTE OR THE LOAN AGREEMENT, AND ALL ARREARAGES OF INTEREST THEREON, TOGETHER WITH COSTS OF SUIT, REASONABLE ATTORNEY'S COMMISSION FOR COLLECTION OF THE TOTAL AMOUNT THEN DUE BY MAKER TO THE BANK (BUT IN ANY EVENT NOT LESS THAN THREE THOUSAND DOLLARS ($3,000.00)), AND FOR SO DOING THIS NOTE OR A COPY HEREOF VERIFIED BY AFFIDAVIT SHALL BE A SUFFICIENT WARRANT. THE AUTHORITY GRANTED HEREIN TO CONFESS JUDGMENT SHALL NOT BE EXHAUSTED BY ANY EXERCISE THEREOF BUT SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE HEREUNDER.
(n) The remedies of the Bank as provided herein or in the Loan Agreement, and the warranties contained herein or in the Loan Agreement, shall be cumulative and concurrent, and may be pursued singly, successively, or together at the sole discretion of the Bank, and may be exercised as often as occasion therefor shall occur; and the failure to exercise any such right or remedy shall in no event be construed as a waiver or release thereof.
(o) Maker hereby waives and releases all errors, defects and imperfections in any proceedings instituted by the Bank under the terms of this Note or of the Loan Agreement, as well as all benefit that might accrue to Maker by virtue of any present or future laws exempting any property, real or personal, or any part of the proceeds arising from any sale of any such property, from attachment, levy, or sale under execution, or providing for any stay of execution, exemption from civil process, or extension of time for payment; and Maker agrees that any real estate that may be levied upon pursuant to a judgment obtained by virtue hereof, on any writ of execution issued thereon, may be sold upon any such writ in whole or in part in any order desired by the Bank.
(p) Maker and all endorsers, sureties and guarantors hereby jointly and severally waive presentment for payment, demand, notice of demand, protest and notice of protest of this Note, and all other notices in connection with the delivery, acceptance, performance, default, or enforcement of the payment of this Note, and they agree that the liability of each of them shall be unconditional, without regard to the liability of any other party, and shall not be affected in any manner by any indulgence, extension of time, renewal, waiver or modification granted or consent to any and all extensions of time, renewals, waivers, or modifications that may be granted by the Bank with respect to the payment or other provisions of this Note, and to the release of the collateral or any part thereof, with or without substitution, and agree that additional makers, endorsers, guarantors, or sureties may become parties hereto without notice to them or affecting their liability hereunder.
(q) The Bank shall not be deemed, by any act of omission or commission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by the Bank, and then only to the extent specifically set forth in the writing. A waiver on one event shall not be construed as continuing or as a bar to or waiver of any right or remedy to a subsequent event.
(r) This instrument shall be governed by and construed according to the domestic internal laws (but not the law of conflict of laws) of the Commonwealth of Pennsylvania.
(s) Whenever used, the singular number shall include the plural, the plural the singular, the use of any gender shall be applicable to all genders, and the words the "Bank" and "Maker" shall be deemed to include the respective successors and assigns of the Bank and Maker.
(t) Any provision contained in this Note which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability, without invalidating the remaining provisions hereof and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
IN WITNESS WHEREOF, Maker, intending to be legally bound hereby, has caused this Note to be duly executed by an authorized officer, and its corporate seal to be affixed and attested, the day and year first above written.
J. M. AHLE CO., INC.
By: /S/ David W. Menard ------------------- David W. Menard, President |
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made on the 30th day of September, 2002, by and between MORO/RADO ACQUISITION CORP., a Pennsylvania corporation (the "Company"), and ANTONIO D. RADO, an individual ("Rado").
Rado is the President and sole shareholder of Rado Enterprises, Inc., a Pennsylvania corporation ("Seller"), a mechanical contracting company which was engaged in various plumbing, heating, ventilation and air conditioning projects for commercial, industrial and institutional buildings located in northeastern and central Pennsylvania. Pursuant to an Asset Purchase Agreement dated July 31, 2002, by and between the Company, Seller, and Rado (the "Asset Purchase Agreement"), the Company acquired substantially all of the operating assets of Seller as of the date hereof (the "Sale"). The Company and Rado have agreed to execute and deliver this Agreement at the time of such Sale.
Under the Asset Purchase Agreement, the Company has agreed to assume any and all obligations of Seller under the Existing Nonassignable Construction Contracts and Existing Contract Bonds
(as such terms are defined in the Asset Purchase Agreement). Since Seller, of which Rado is the sole shareholder, remains obligated after the Sale under the Existing Nonassignable Construction Contracts and the Existing Contract Bonds, Rado has an interest in controlling the quality of the work performed by the Company under, and in the Company satisfactorily completing the Existing Nonassignable Construction Contracts in order to discharge Seller's obligations under the Existing Nonassignable Construction Contracts and the Existing Contract Bonds.
The Company may not be able to satisfactorily complete the Existing Nonassignable Construction Contracts unless the Company continues to operate as an ongoing enterprise and only enters into new construction contracts after the date hereof ("New Construction Contracts") under which it satisfactorily performs and does not incur significant losses. Therefore, Rado also has an interest in the Company's procurement (including without limitation the bidding on, review of and acceptance of such New Construction Contracts) and satisfactory performance of such New Construction Contracts until, at least, all of Seller's obligations are fulfilled under the Existing Nonassignable Construction Contracts. It is contemplated that the majority of Seller's obligations under the Existing Nonassignable
Construction Contracts will be fulfilled by the Final Date (hereinafter defined) of the Employment Period (hereinafter defined). Accordingly, Rado has a great interest in remaining employed by the Company (as described hereunder) and maintaining a significant role in the Company during the entire Employment Period.
The Company has an interest in employing Rado in the significant role contemplated hereunder during the entire Employment Period in order to (i) aid in the transition of the former business of Seller to the Company, (ii) assist in the training of any replacement for Rado, (iii) supervise and make decisions concerning the bidding on, review of and acceptance of New Construction Contracts by the Company, (iv) supervise performance of the work by the Company on New Construction Contracts, and (v) supervise the work by the Company on the Existing Nonassignable Construction Contracts and to ensure that the Existing Nonassignable Construction Contracts are satisfactorily completed since the Company has certain indemnification obligations to Seller and Rado with respect to the performance and completion of the Existing Nonassignable Construction Contracts.
Therefore, since each of the parties have a great interest in the employment of Rado by the Company for the entire
Employment Period, the parties hereto have agreed to execute and deliver this Agreement upon the terms and conditions hereinafter set forth, which includes the right of Rado and the Company to terminate Rado's employment during the Employment Period only for Good Reason (hereinafter defined) and Cause (hereinafter defined), respectively.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and in the Background to this Agreement, the parties hereto, intending to be legally bound hereby, agree as follows:
1. Employment. The Company hereby employs Rado as President and Chief Executive Officer of the Company and Rado hereby accepts such employment, all upon the terms and conditions hereinafter set forth.
2. Office and Duties. During the Employment Period (as defined in Section 4 herein), Rado shall devote his full business time and best working efforts to being the President and Chief Executive Officer of the Company, and shall perform such business related duties and services as shall be reasonably directed from time to time by the Board of Directors of the Company.
Rado agrees that during the Employment Period he will not be employed by, participate or engage in, or be a part of, in any manner, directly or indirectly, the affairs of any other business enterprise or occupation (other than in connection with his duties as an employee of the Company) without the Company's express prior written consent; provided, however, that the foregoing shall not be intended to preclude Rado from (i) participating in the winding up or dissolution of Seller; or (ii) participating in the completion by Seller of the Existing Nonassignable Construction Contracts; or (iii) the mere ownership by Rado, Seller or an entity affiliated with Seller or Rado, of less than 5% of the issued and outstanding securities of any entity if such securities are included in the National Market Securities list of the National Association of Securities Dealers, Inc. Automated Quotation System or listed on any national Securities exchange; or (iv) being an investor in connection with the ownership by Rado, Seller, or any entity affiliated with Seller or Rado, in real estate.
3. Compensation. For the services as described hereunder rendered by Rado to the Company, and in addition to the compensation and/or payments provided for in Sections 6 and 7, Rado shall receive the following compensation during the Employment Period (as defined below):
An annual base salary at the rate of One Hundred and Fifty Thousand Dollars ($150,000), payable at such time as the Company pays its other employees, but in no event less frequently than bi-weekly.
The Company will provide to Rado medical and health insurance coverage which shall be substantially equal to that furnished to him by Seller prior to the date hereof ("Health Insurance").
Rado will participate in the Company's defined contribution plan which shall be substantially equal to the Seller's defined contribution plan existing prior to the date hereof. Rado shall also participate in the Company's profit sharing plan (which shall be substantially equal to the Seller's profit sharing plan existing prior to the date hereof) during the calendar years 2002 and 2003, and during the four (4) month period ended April 30, 2004, and the Company's contribution thereunder shall be based upon Rado's base salary at the annualized rate of $150,000.
Rado shall be entitled to twenty (20) days of paid vacation time during each twelve (12) month period of the Employment Period.
e. Rado shall be entitled to be reimbursed by the Company for all reasonable expenses reasonably incurred by Rado in connection with Rado's employment responsibilities and duties, including but not limited to business related travel expenses and mileage. Rado shall reasonably document all requests for expense reimbursements.
4. Term of Employment. Subject to Section 5 hereof, the term of Rado's employment under this Agreement shall be for a period (the "Employment Period") of two (2) years commencing on September 30, 2002, and terminating on September 30, 2004 (the "Final Date"). Upon the expiration or earlier termination of the Employment Period (as provided herein), Rado shall no longer be an employee of the Company; provided, that the provisions of Sections 6 and 7 hereof shall continue in full force and effect.
5. Termination of Employment. Notwithstanding the provisions of Section 4 hereof, Rado's employment with the Company shall be terminated, and the Employment Period shall be terminated, upon the occurrence of any of the following events:
Rado may terminate Rado's employment during the Employment Period only for Good Reason (as defined below) upon sixty (60) days prior written notice to the Company. If any such notice is given, then the Employment Period shall terminate as of the end of the sixty day period, and thereafter Rado shall no longer be an employee of the Company; provided that: (i) the provisions of Sections 6 and 7 hereof shall continue in full force and effect; (ii) Rado shall receive any and all compensation, unreimbursed expenses and any and all employee benefits provided hereunder accrued through the date of termination; and (iii) the Company shall provide to Rado an amount equal to Rado's salary hereunder from the date of termination through the Final Date, which shall be payable on or before the date of termination; and (iv) the Company shall continue to pay for and provide Health Insurance for Rado through the Final Date.
For purposes of this Agreement, "Good Reason" shall mean, without Rado's
express written consent, the occurrence of any of the following circumstances:
(A) a Company Change in Control pursuant to which the buyer does not either
assume this Agreement or otherwise agree to employ Rado at or after the
acquisition date on terms substantially comparable in the aggregate to this
Agreement, or (B) unless such circumstances are fully corrected within 60 days
after written notice thereof (1) a permanent material diminution in Rado's
position, duties, responsibilities (including reporting responsibilities) or
authority (except during periods when Rado is unable to perform all or
substantially all of Rado's duties and/or responsibilities on account of Rado's
illness (either physical or mental) or other incapacity), or (2) a failure by
the Company to pay Rado's salary or any other amounts or benefits as provided
herein. For purposes of this Agreement, a "Company Change in Control" shall mean
a sale for cash or noncash consideration of all or substantially all of the
stock of the Company, or all or substantially all of the assets of the Company,
to the extent such sale occurs after the date of this Agreement.
The Company may terminate Rado's employment during the Employment
Period only for Cause, upon written notice to Rado. The term "Cause" shall mean any of the following: (i) the commitment of any criminal or fraudulent act by Rado against the Company or in connection with its business; (ii) the willful and continued (after notice and reasonable opportunity to cure) failure of Rado to perform his duties and responsibilities as an employee of the Company, including but not limited to, his insubordination or failure to follow the instructions of the Board of Directors of the Company which materially and adversely affects the Company; (iii) Rado engages in conduct which involves dishonesty or moral turpitude and which is materially injurious to the Company; or (iv) the material breach by Rado of any term or condition hereof, provided that the Company provide to Rado notice of such breach and the opportunity to cure such breach within 30 days of such notice. In such event, upon such termination of employment, other than in connection with any unpaid compensation, any unreimbursed expenses and any and all other employee benefits provided hereunder accrued through the date of such termination, the Company shall have no further obligations hereunder; provided that the provisions of Sections 6 and 7 hereof shall continue in full force and effect.
The death or disability of Rado. The term "disability" shall mean the reasonable determination by the Company, as provided herein, that Rado is incapacitated by a medical cause so as to render him mentally or physically incapable of performing all of his employment duties with the Company for a period of one hundred and eighty (180) consecutive days, provided that the Company notifies Rado of its determination of his disability within (10) days after such one hundred and eighty (180) day consecutive period. The Company shall be entitled to rely upon the advice and opinion of any qualified and licensed physician of its choosing in making any determination with respect to disability under this Agreement. Upon such death or disability, other than in
connection with any unpaid compensation, any unreimbursed expenses and any and all other employee benefits provided hereunder which have accrued through the date of such death or disability, the Company shall have no further obligations hereunder; provided that the provisions of Sections 6 and 7 hereof shall continue in full force and effect.
Upon the expiration or earlier termination of the Employment Period, or upon the request of the Company at any time, Rado shall immediately deliver to the Company any and all materials, equipment, products, documents, software, computer discs, manuals, records, drawings, or other items in Rado's possession or control, which concern or refer to the business or policies of the Company, and, except for such items which relate, in any way, to the Existing Nonassignable Construction Contracts, Rado shall not retain or use any copies or summaries thereof.
e. The Company and the shareholder of the Company, Moro Corporation, each covenant and agree that they each will not effect any Company Change in Control (as defined above) prior to the expiration or earlier termination of the Employment Period without the prior written consent of Rado.
f. The payment by the Company to Rado of any and all amounts due to Rado hereunder (including without limitation any such amounts under Sections 5, 6, and 7 hereof) have been guaranteed by Moro Corporation pursuant to the Guaranty Agreement entered into as of even date herewith.
6. Bonus Payments to Rado.
A. In addition to the compensation payable to Rado by the Company in
Sections 3, 6.B, and 7, the Company shall pay to Rado a signing bonus in the
amount of Three Hundred Thousand Dollars ($300,000) to be paid in three equal
installments of $100,000 on the following dates: September 30, 2003; September
30, 2004; and September 30, 2005. These three payments shall be made to Rado by
the Company whether or not the Employment Period or this Agreement has been
terminated and whether or not Rado is then an employee of the Company, and
subject to Section 6.C., the three payments shall be absolute and unconditional
obligations of the Company. The payment due by the Company on September 30, 2005
has been guaranteed by David W. Menard and Jacqueline J. Menard, jointly and
severally, pursuant to the Limited Guaranty dated of even date herewith. This
Section 6.A shall survive any termination of this Agreement, the death or
disability of Rado, or the employment of Rado hereunder.
B. In addition to the compensation payable to Rado by the Company in Sections 3, 6.A, and 7, the Company shall pay to Rado an additional signing bonus in the amount of Three Hundred Thousand Dollars ($300,000). The additional signing bonus shall be paid by the Company to Rado in three equal installments of $100,000 on the following dates: Septemebr 30, 2006; September 30, 2007; and September 30, 2008, and shall be evidenced by a non-interest bearing promissory
note of the Company in the form attached hereto as Exhibit "A". These three payments shall be made to Rado by the Company whether or not the Employment Period or this Agreement has been terminated and whether or not Rado is then an employee of the Company, and subject to Section 6.C., the three payments shall be absolute and unconditional obligations of the Company. The additional signing bonus payments and the promissory note have been guaranteed by David W. Menard and Jacqueline J. Menard, jointly and severally, pursuant to the Limited Guaranty dated of even date herewith. This Section 6.B shall survive any termination of this Agreement, the death or disability of Rado, or the employment of Rado hereunder.
C. Notwithstanding Section 6.A or 6.B, if on the due date of any bonus payment under subsection A. or B., any indemnification claims against Seller or Antonio D. Rado under Section XIX.A. of the Asset Purchase Agreement which have been finally judicially determined or settled and agreed upon by the parties thereto, or have been determined by the Independent Accounting Firm (as defined in the Asset Purchase Agreement) pursuant to Section VI.B of the Asset Purchase Agreement ("Company Finally Determined Claims"), then the Company shall (x) retain a portion of such bonus payment equal to the judicially determined,
Independent Accounting Firm determined, or agreed or settled amount, as applicable, of any such Company Finally Determined Claims until such time as the Company Finally Determined Claims are paid, and (y) pay the remainder of the bonus payment, if any, to Rado. Reference is made to the Asset Purchase Agreement for all of the terms, conditions, and covenants contained therein.
D. The bonus payments to be made to Rado by the Company referred to in
Section 6.A or 6.B shall be reduced by and subject to applicable payroll tax
withholding, and in addition, shall be further reduced in the amount of the
employer's portion of any payroll taxes required to paid by the Company.
7.Profit Participation Payments.
A. In addition to the compensation payable to Rado by the Company in
Sections 3 and 6, on or before 90 days following the end of each of the two
twelve month periods immediately following the date hereof, the Company shall
deliver to Rado a profit participation payment ("Profit Participation Payment")
equal to the sum of the following: (i) fifty percent (50%) of the amount, if
any, by which the net pre-tax earnings of the Company during each such twelve
month period equals or exceeds $725,000 and is less than $1,000,000; and
(ii)fifty-five percent (55%) of the amount, if any, by which the net pre-tax
earnings of the Company during each such twelve month period equals or exceeds $1,000,000 and is less than $1,250,000; and (iii) sixty percent (60%) of the amount, if any, by which the net pre-tax earnings of the Company during each such twelve month period equals or exceeds $1,250,000. Any such payment shall be paid in cash. The Profit Participation Payments shall be made to Rado by the Company whether or not the Employment Period or this Agreement has been terminated and whether or not Rado is then an employee of the Company, and subject to Section 7.F, the payments shall be absolute and unconditional obligations of the Company. Each Profit Participation Payment shall be reduced by and subject to any applicable payroll tax withholding and in addition, shall be further reduced in the amount of the employer's portion of any payroll taxes required to paid by the Company. This Section 7 shall survive any termination of this Agreement, the death or disability of Rado, or the employment of Rado hereunder.
B. As used in this Section 7, the term the Company shall include the Company (and its successors and assigns) as well as any business or businesses conducted by the Company, or by any subsidiary or affiliated corporations of the Company, which represent a succession to, a continuation of, or an expansion of the business conducted by Seller.
C. As used in this Section 7, the term "net pre-tax earnings" shall mean the net earnings, before all income taxes, of the Company computed on the accrual basis of accounting in accordance with generally accepted accounting principles consistently applied and consistent with the accounting practices applied by Seller prior to the date hereof, except that the following provisions shall govern the computation of the net pre-tax earnings of the Company for purposes of this Section 7:
1. Any extraordinary and nonrecurring items of income, gain, loss or expense shall be excluded from such computation.
2. Any loss, charge or expense not related to the ordinary business operations of the Company, or paid, incurred or charged in connection with the expansion of the business operations of the Company (as conducted by Seller prior to the Sale) as a result of the making of acquisitions or the opening and staffing of new offices, or any income or revenues directly derived therefrom, shall be excluded from such computation. During the two twelve month periods covered by this Section 7, neither the Company nor any of its affiliates shall
take any expansion action that effectively competes against or could take business away from the Company's business (as conducted by Seller prior to the Sale) without Rado's prior written consent.
3. Any payments, charges or expenses for the allocation of executive, general and administrative expenses or other payments, charges or expenses of the Company's sole shareholder, Moro Corporation, or David W. Menard, or his or its affiliates, shall be excluded from such computation; provided, however, that there shall be included for purposes of such computation (i.e., a deductible expense) an annual charge for management fees paid by the Company to Moro Corporation, David W. Menard or any affiliate(s) of the foregoing, in an amount not greater than $100,000.
4. Any interest expenses or charges shall be excluded from such computation.
5. Any amortization of any and all capitalized acquisition expenses associated with the transactions contemplated by this Agreement shall be excluded from such computation.
6. The six payments of $100,000 to be made to Rado under Sections 6.A
and 6.B hereof shall be excluded from such computation and the fifteen percent
(15%)
portion of the Additional Cumberland Project Excess Profits (as defined in the Asset Purchase Agreement) retained by the Company and not paid to Seller pursuant to Section VI.E. of the Asset Purchase Agreement shall be excluded from such computation.
7. Any and all Profit Participation Payments incurred or paid shall be excluded from such computation.
8. All cash out of pocket expenses reasonably incurred by the Company for consulting fees and new management costs shall be included in the calculation and be taken by the Company as a deductible expense, subject to the approval of Rado which approval shall not be unreasonably withheld or delayed.
9. Any depreciation expenses for the fixed assets of Seller acquired by the Company shall be based upon the book value assigned thereto pursuant to the Asset Purchase Agreement, which fixed assets shall be depreciated over periods and by methods consistent with generally accepted accounting principles and the practice of the Seller prior to the date hereof.
10. Except as otherwise expressly provided above, all amounts determined in accordance with subparagraphs 1 through 9 of this Section 7.C shall be determined in accordance with generally accepted accounting principles consistently applied.
D. Rado shall have reasonable access to the financial books and records of the Company in order to determine the amount of any Profit Participation Payment owed to him. Until all Profit Participation Payments have been made by the Company to Rado, the Company shall deliver to Rado the annual financial statements of the Company within 90-days following the close of each calendar year.
E. As soon as may be practicable after each such twelve month period covered by this Section 7, but not later than 90 days thereafter, the Company shall deliver to Rado a statement setting forth in reasonable detail its calculation of the net pre-tax earnings of the Company during such twelve month period and the amount of any Profit Participation Payment to be paid to Rado pursuant to this Section 7, which statement shall be accompanied by payment to Rado of the amount shown thereon (a "Profit Participation Statement"). If within 30 days after delivery of the Profit Participation Statement, Rado has not given written notice to the Company (a "Profit Participation Dispute Notice") disputing such Profit Participation Statement (a "Profit Participation Dispute") and indicating the basis of such Profit Participation Dispute and the amount of the Profit Participation Payment claimed to be due by the Company to Rado, the
Company shall thereafter have no liability to Rado under this Section 7 for such twelve month period except for the amount of the Profit Participation Payment listed in the Profit Participation Statement.
In the event that Rado delivers to the Company a Profit Participation Dispute Notice within such 30-day period, Rado and the Company shall use their best efforts to settle the Profit Participation Dispute within 30 days after the giving of such Profit Participation Notice. Any Profit Participation Dispute unresolved after such 30-day period may be submitted by the Company and Rado to an independent accounting firm acceptable to the parties (a "Profit Participation Independent Accounting Firm"), which firm shall use the methods and criteria and such procedures as it may deem necessary in its sole discretion to decide the Profit Participation Dispute, and the Profit Participation Independent Accounting Firm shall choose either the Profit Participation Payment set forth in the Profit Participation Statement or the Profit Participation Payment set forth in the Profit Participation Dispute Notice. The decision of the Profit Participation Independent Accounting Firm shall be final, conclusive and binding upon the parties and not subject to any appeal. The fees and expenses of the Profit Participation Independent Accounting Firm shall be paid
by the non-prevailing party, not the prevailing party.
If upon the determination of the Profit Participation Dispute, any amount is due to Rado, the amount shall be paid to Rado by the Company within five days thereafter. Any such amount due to Rado shall bear interest from and after the date of the Profit Participation Dispute Notice until paid at the rate of six percent (6%) per annum and shall be paid in immediately available funds.
F. If on the date of delivery of any Profit Participation Statement, any
indemnification claims against Seller or Rado under Section XIX.A. of the Asset
Purchase Agreement which have been finally judicially determined or settled and
agreed upon by the parties thereto, or have been determined by the Independent
Accounting Firm (as defined in the Asset Purchase Agreement) pursuant to Section
VI.B of the Asset Purchase Agreement ("Company Finally Determined Claims"), then
the Company shall (x) retain a portion of such Profit Participation Payment
equal to the equal to the judicially determined, Independent Accounting Firm
determined, or agreed or settled amount, as applicable, of any such Company
Finally Determined Claims until such time as the Company Finally Determined
Claims are paid, and (y) pay the remainder of the
Profit Participation Payment, if any, to Rado. Reference is made to the Asset Purchase Agreement for all of the terms, conditions, and covenants contained therein.
8. Termination of Employment Period. The Company and Rado have entered into a Non-Competition Agreement dated of even date herewith ("Non-Competition Agreement"). The expiration or termination for any reason whatsoever of the Employment Period or this Agreement, or termination of Rado's employment with the Company for any reason whatsoever, shall not affect, modify, limit or vary in any manner whatsoever any of the terms or conditions of the Non-Competition Agreement, and the Non-Competition Agreement shall nevertheless remain in full force and effect in accordance with its terms.
9. Notices. All notices required or permitted hereunder shall be in writing and shall be sent by personal delivery, recognized overnight delivery service, or certified or registered mail, return receipt requested, postage prepaid, as follows:
If to Rado:
Mr. Antonio D. Rado
3707 State Route 487
Stillwater, PA 17878
With copy to:
George J. Hartnett, Esquire White and Williams LLP
1800 One Liberty Place Philadelphia, PA 19103
If to the Company:
Moro/Rado Acquisition Corp.
111 Presidential Boulevard
Suite 240
Bala Cynwyd, Pennsylvania 19004
Attn: David W. Menard, Chairman
With copy to:
Douglas M. Lurio, Esquire
Lurio & Associates, P.C.
2005 Market Street; Suite 2340
Philadelphia, PA 19103
or to such other address as such parties may designate in a written notice served upon the other parties in the manner provided herein. All notices required or permitted hereunder shall be deemed duly given and received when delivered by personal delivery, on the next business day when sent by recognized overnight delivery service, and on the second day next succeeding the date of mailing when sent by certified or registered mail, return receipt requested.
10. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective permitted personal representatives, heirs, successors, and assigns. This Agreement may not be
assigned, in whole or in part, by Rado or the Company without the prior written consent of the other party.
11. Background; Entire Agreement. The parties hereto agree that the Background to this Agreement is incorporated herein by reference and is part of this Agreement. This Agreement embodies the entire understanding and agreement of the parties hereto relating to the subject matter hereof, supersedes all prior and contemporaneous agreements, understandings and negotiations, whether oral or written of the parties, and no promise, condition, representation or warranty, expressed or implied, not herein set forth, shall bind any party with respect to the subject matter hereof.
12. Choice of Law. This Agreement has been executed and delivered in the Commonwealth of Pennsylvania and shall be construed in accordance with and governed by the laws of the Commonwealth of Pennsylvania without regard to its conflicts of laws rules.
13. Jurisdiction. Except as provided otherwise herein, the Company and Rado irrevocably consent and agree that any legal action or proceeding whatsoever arising out of or in any way connected with this Agreement or the transactions contemplated hereby shall be solely and exclusively commenced, filed, instituted or brought in the state or federal courts of the Commonwealth of Pennsylvania,
and each irrevocably submits and accepts with regard to any such legal action or proceeding to the jurisdiction of such courts. Except as otherwise provided herein, the Company and Rado irrevocably consent to service of process out of any of the aforementioned courts in any such action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid, to the Company and Rado, such service to become effective upon mailing. Except as otherwise provided herein, the Company and Rado hereby irrevocably waive, to the fullest extent permitted by law, any objection which either of them may now or hereafter have to the laying of the venue of any such suit, action or proceeding arising out of or relating to this Agreement brought in such Pennsylvania courts, and hereby further irrevocably waive any claim, that any such suit, action or proceeding brought in such courts, has been brought in an inconvenient forum.
14. Waivers, Modifications, etc. Any party to this Agreement may waive any of the terms or conditions of this Agreement or agree to an amendment or modification to this Agreement by an agreement in writing executed in the same manner as this Agreement. No amendment or modification of this Agreement shall be binding unless executed in writing by all of the parties hereto. No waivers
shall be binding unless in writing executed by the party waiving such term or condition of this Agreement.
15. Invalid Provision. If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement or the application of any such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. If any of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to duration, scope, activity or subject, it shall be construed by limiting and reducing it, so as to be valid and enforceable to the extent compatible with the applicable law.
16. Understanding of Agreement. Rado hereby represents and warrants each of the following: (i) he has carefully read all of the terms and conditions of this Agreement; and (ii) he fully understands the meaning and effect of this Agreement; and (iii) the entry into and execution of this Agreement by him is his own free and voluntary act and deed; and (iv) he has received (or had the opportunity to receive) the advice of his own attorney, accountant, or other
advisors, concerning this Agreement and its meaning and legal effect, and has (or has had the opportunity to) fully and completely discuss and review the Agreement and its meaning and legal effect, with his own attorney, accountant or other advisors.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written.
MORO/RADO ACQUISITION CORP.
Attest:_____________________ By: /S/ David W. Menard ------------------- David W. Menard, Chairman Witness:____________________ /S/ Antonio D. Rado ------------------- ANTONIO D. RADO, Individually |
The undersigned, Moro Corporation, hereby joins in this Agreement solely for the purpose of agreeing to the terms and conditions of Section 5.e hereof.
MORO CORPORATION
Witness: By: /S/ David W. Menard --------------------- ------------------- David W. Menard, President |
This First Amendment is made as of the 24th day of March 2003, by and between RADO ENTERPRISES, INC., a Pennsylvania corporation (the "Company"), and ANTONIO D. RADO, an individual ("Rado").
The Company and Rado entered into an Employment Agreement dated September 30, 2002 (the "Agreement"). As more fully set forth herein, the parties to the Agreement desire to amend the Agreement in certain respects.
NOW, THEREFORE, in consideration of the covenants set forth herein, and intending to be legally bound hereby, the parties agree as follows:
1. Amendments. Subsections (i),(ii) and (iii) of Subparagraph A., Section
7. Profit Participation Payments. of the Agreement is hereby deleted and the
following new subsections (i), (ii) and (iii) are hereby substituted in their
place:
"(i) twenty-five percent (25%) of the amount, if any, by which the net pre-tax earnings of the Company during each such twelve month period
equals or exceeds $725,000 and is less than $1,000,000; and
(ii) twenty-seven and one-half percent (27 1/2%) of the amount, if any, by which the net pre-tax earnings of the Company during each such twelve month period equals or exceeds $1,000,000 and is less than $1,250,000; and
(iii) thirty percent (30%) of the amount, if any, by which the net pre-tax earnings of the Company during each such twelve month period equals or exceeds $1,250,000."
2. Modification. Except as otherwise specifically set forth in Paragraph 1, the Agreement shall not be amended or modified in any respect whatsoever and shall continue in full force and effect.
3. Capitalized Terms. Except as specifically provided otherwise herein, all capitalized terms used herein shall have the meanings ascribed to them in the Agreement.
4. Effective Time. The amendments to the Agreement made in Paragraph 1 hereof shall be effective from and after the date of the Agreement. IN WITNESS WHEREOF, the parties hereto have executed this First Amendment as of the day and year first above written.
RADO ENTERPRISES, INC.
Attest: __________________ By: /S/ David W. Menard ------------------------------------ David W. Menard, Chairman |
Witness: _________________ /S/ Antonio D. Rado ------------------- ANTONIO D. RADO, Individually |
THIS LEASE AGREEMENT (this "Lease") is made this 22nd day of May, 2003, by and between, JAD ASSOCIATES, LLC, a Pennsylvania limited liability company ("Landlord"), and RADO ENTERPRISES, INC., a Pennsylvania corporation ("Tenant").
As more fully set forth herein, Landlord desires to lease the Premises (as defined below) to Tenant, and Tenant desires to lease the Premises (as defined below) from Landlord.
Intending to be legally bound, Landlord and Tenant hereby agree as follows:
1. Premises; Term; Renewal
(a) Landlord hereby lets and demises to Tenant, and Tenant does hereby hire and lease from Landlord for the term and upon the terms, conditions and covenants set forth herein, all that certain piece or parcel of land and the buildings and other improvements thereon, known as Columbia County Industrial Park, 20 Industrial Drive, Bloomsburg, Pennsylvania 17815 (referred to hereinafter as the "Premises"), as more fully described in Exhibit "A" hereto.
(b) Subject to the Extension Options described in subsection (c) of this Section 1, the term of this Lease shall commence on the date hereof (the "Commencement Date") and expire at midnight on May 21, 2008 (the "Termination Date").
(c) Tenant shall have the option, in its sole discretion, to extend the term of this Lease for up to three additional terms of five (5) years each ("Extension Option"). The first Extension Option shall commence on May 22, 2008 and extend through May 21, 2013, the second Extension Option shall commence on May 22, 2013 and extend through May 21, 2018, and the third Extension Option shall commence on May 22, 2018 and extend through May 21, 2023. Tenant shall exercise any such Extension Option, in writing, no later than ninety (90) days
prior to the end of the initial term hereof or the end of any particular Extension Option hereof, as the case may be. If Tenant exercises any such Extension Option, then the Termination Date of this Lease shall be extended until the end of any such five year Extension Option. All of the terms, covenants and conditions of this Lease shall equally pertain in all respects to any extension or extensions of the term of this Lease.
(d) Subject to the representations, covenants and warranties of Landlord herein, Tenant is accepting the Premises in the condition as it exists on the date of this Lease.
2. Rent.
(a) The annual rent due hereunder shall be at the rate as described on Schedule 1 attached hereto. Commencing on the Commencement Date and on the first day of each month thereafter during the term hereof, Tenant shall pay to Landlord, in advance, monthly installments of the rent described on Schedule 1. Every installment of rent shall be payable at 111 Presidential Boulevard, Suite 240, Bala Cynwyd, PA 19004, or to any other party at such other address as Landlord shall specify.
(b) If the term does not begin on the first day and/or end on the last day of a month, the rent for that partial month shall be prorated by multiplying the monthly rent by a fraction, the numerator of which is the number of days of the partial month included in the term and the denominator of which is the total number of days in the month.
3. Real Estate Taxes/Utilities.
(a) Tenant shall remit prior to delinquency all real estate taxes assessed or levied against the Premises during the term of this Lease and shall promptly send landlord proof of payment thereof. Landlord shall provide Tenant with a statement of real estate taxes, notices and assessments with respect to the Premises.
(b) Tenant shall pay all charges for gas, electricity, water and sewer rents and service charges, telephone and communication services and other
utility services used, rendered or consumed by Tenant upon the Premises. All such utilities shall be in the name of Tenant.
4. Tenant's Use. The Premises may be used for operating a mechanical contracting business or for any other lawful business use.
5. Compliance with Laws; Governmental Regulations.
(a) As of the Commencement Date, Landlord has received no notice of violation any applicable laws, ordinances, rules and regulations of governmental authorities, or if any such notice has been delivered to Landlord, Landlord has corrected such violation.
(b) Tenant shall through-out the term of this Lease, at Tenan's sole cost and expense, promptly comply with all laws, ordinances, notices, orders, rules, regulations and requirements of all federal, state and municipal governments, and notices, orders, rules and regulations of the National Board of Fire Underwriters, or any other body now or hereafter constituted exercising similar functions, relating to all or any part of the Premises, or to the use or manner of use of the Premises or to the sidewalks, parking areas, curbs and access ways adjoining the Premises; provided, however, the Tenant's obligations hereunder shall be limited to those applicable to the manner in which it conducts its business on the Premises generally.
(c) Notwithstanding the provisions of Section 5.b above, Landlord, and not Tenant shall be responsible to make all repairs necessary to maintain the structural stability of the buildings on the Premises and to the roof of the buildings on the Premises, or which are required to effect compliance of the roof and structural portions of the buildings with any laws or ordinances, and any notices, orders, rules, regulations and requirements of all federal, state and municipal governments, and notices, orders, rules and regulations of the National Board of Fire Underwriters (or any other body now or hereafter constituted exercising similar functions).
(d) Unless such observance or compliance shall be an express obligation of Tenant hereunder, Landlord shall throughout the term of this Lease, at
Landlord's sole cost and expense, promptly observe and comply with all present and future laws, ordinances, requirements, orders, directions, rules and regulations of any federal, state, county and municipal government and of all other governmental authorities having or claiming jurisdiction over the Premises.
6. Insurance
(a) Tenant shall maintain at Tenant's own cost and expense throughout the term of this Lease insurance against claims for personal injury (including death) and property damage arising from occurrences on, in or about the Premises, with broad form contractual liability coverage, under a policy or policies of comprehensive liability coverage or commercial general liability insurance, with limits not less than $2,000,000 annual aggregate for the Premises.
(b) Landlord, at Landlord's sole cost and expense, shall maintain and keep in effect throughout the term of the Lease insurance against loss or damage to the buildings and all other improvements now or hereafter located in the Premises by fire and all other casualties as may be included in forms of all risk insurance from time to time commonly available in the Commonwealth of Pennsylvania, in an amount equal to the full insurance replacement value (without depreciation) of the Premises.
(c) Landlord and Tenant hereby release each other and the other's partners, agents, and employees, to the extent of each party's insurance coverage, from any and all liability or responsibility to the other or anyone claiming through or under it or them by way of subrogation or otherwise, for any loss or damage occasioned to the Landlord or the Tenant, as the case may be, or to their respective property, as a result of fire or other casualty, even if such loss or damage shall have been caused by default or negligence of the other party or anyone for whom such party may be responsible. The foregoing release shall be effective only with respect to loss or damage occurring during such time as the appropriate policy of insurance shall contain a clause to the effect that this release shall not affect said policy or the right of the insured to recover thereunder. If any policy does not permit such a waiver, and if the party to benefit therefrom requests that such a waiver be obtained, the other party agrees to obtain an endorsement to its insurance policies permitting such
waiver of subrogation if it is available. If an additional premium is charged for such waiver, the appropriate insured party obtaining such waiver agrees to pay the amount of such additional premium.
(d) Tenant may carry any insurance required by this Section 6 under a blanket policy applicable to the Premises for the risks and in the amounts required pursuant to this Section 6.
7. Environmental Warranties and Representations of Landlord.
(a) Representations as to Environmental Issues. Landlord represents and warrants to Tenant that at all times prior to and up to and including the date of execution of this Lease, that all activities of Landlord and, to Landlord's knowledge, all predecessors in interest, have occupied the Premises and conducted activities upon such Premises in compliance with federal, state and local statutes, ordinances, regulation and orders relating to the protection of the environment or public health and safety, including without limitation, those concerning (a) those activities, (b) operation, maintenance, report or construction of any improvements or equipment or other personal property, (c) discharges, emissions, releases or threatened releases of any kind to the air, soil, surface water, or groundwater, and (d) storage, transportation, treatment, disposal or handling of any materials, including waste water or Hazardous Substances (as hereinafter defined), at or connected with any activity at the Property ("Environmental Laws"). For purposes of this Lease, "Hazardous Substances" includes materials that are or contain "hazardous substances", "hazardous waste", "hazardous materials,", "toxic substances" or "regulated substances", as defined pursuant to any Environmental Law.
(b) Landlord represents and warrants that to the best of its knowledge, after due investigation, there is no asbestos in the Premises. If any asbestos shall be discovered or revealed at any time during the term, Landlord shall at its sole cost and expense either remove, safely encapsulate, or implement an operations and maintenance program for such asbestos, in compliance with (il) all applicable laws, and (ii) recommendations of an expert retained by Landlord
at its expense, reasonably acceptable to Tenant.
(c) Site Contamination. Neither Landlord nor, to Landlord's knowledge, any other party, has discharged, released, leaked, spilled, emitted or disposed of any Hazardous Substance in, or over, or under, the Premises. No Hazardous Substance is present on, in, over, or under, or is migrating from such real property in such a manner as may require remediation under any Environmental Law or, to Landlord's knowledge, is present on, over or under any premises adjacent to the Premises.
(d) NPL and CERCLIS. Neither the Premises nor, to Landlord's knowledge, any adjacent premises is listed or proposed for listing on the National Priorities List ("NPL") or the Comprehensive Environmental Response Compensation and Liability Information System ("CERCLIS") list established pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. S. 9601 et seq ("CERCLA"), or any other hazardous site list promulgated by any federal, state or local governmental authority.
(e) Liens. There is no lien imposed or, to Landlord's knowledge, any circumstance that is reasonably likely to lead to the imposition of a lien upon the Premises pursuant to any Environmental Law.
(f) Other Hazardous or Toxic Materials. No polychlorinated biphenyls or substances containing polychlorinated, biphenyls, no asbestos or materials containing asbestos, and no storage tanks are present under, over, or on the Premises.
(g) Governmental Notices and Permits.
(1) Landlord has not been notified by any governmental authority of any violation by Landlord of or any investigation under any Environmental Law of or any investigation under any Environmental Law or of any potential liability of any person of entity regarding the Premises or activities thereon relating to the presence of Hazardous Substances or waste of any kind on, over, under, migrating from or affecting such Premises.
(2) Landlord has obtained all registrations with, licenses from, and permits or approvals, including amendments thereto, issued by governmental agencies pursuant to Environmental Laws which are required in connection with the Premises (collectively "Permits"). All such Permits are in full force and effect. Landlord will assist Tenant in giving notice to applicable governmental authorities and in transferring or reissuing to Tenant any new Permits necessary to continue operations at the Premises, or in obtaining for Tenant any new Permits required of tenant under any Environmental Law.
(h) Waste Disposal Sites. There are no facilities to which Hazardous Substances or waste of any kind have been sent by or on behalf of Landlord for handling, treatment, storage or disposal of any kind or use, or to which any third party under contract or other arrangement with Landlord has sent Hazardous Substances or waste of any kind received from Landlord for handling, treatment, storage or disposal.
(i) Indemnification. Landlord hereby agrees to indemnify and to hold harmless Tenant, as well as Tenants officers, directors, shareholders, employees, attorneys, or agents, of, from and against any and all expense, loss or liability suffered or incurred by any of them by reason of Landlord's breach of any of the representations and warranties set forth in this Section 7, and, in addition thereto, of, from and against (i) any and all expenses that any of them may incur in complying with any Environmental Laws, or (ii) any and all costs that any of them may incur in studying, assessing, containing, removing, remedying, mitigating, or otherwise responding to, the release of any Hazardous Substance or waste at or from the Premises, or (iii) any and all costs for which any of them may be liable to any governmental agency for studying, assessing, containing, removing, remedying, mitigating, or otherwise responding to, the release of a Hazardous Substance or waste water at or from the Premises, or (iv) any and all legal fees and costs incurred by any of them in connection with any of the foregoing. This subsection (i) shall not apply, however, to any such expenses, losses, or liabilities that are solely a result of Tenant's violation of any Environmental Laws in connection with its operation and activities on the Premises. The indemnification obligations of Landlord set forth in this subsection (i) shall survive the termination or expiration of this Lease for any
reason whatsoever, and shall be fully enforceable and binding against and upon Landlord following any such expiration or termination.
8. Maintenance and Repair.
(a) Except at otherwise provided herein, Tenant, at its own cost and expense, shall keep the interior of the Premises and all improvements made by Tenant in good order and shall be responsible for the full cost of the repair to any such item, unless the repair is necessitated by damage for which Landlord is responsible under (b) below.
(b) Landlord shall keep in good order, condition and repair, and shall replace when necessary the structural portions of the Premises, the roof and roof membrane, foundations, appurtenances, heating, ventilation and air conditioning equipment, electrical systems, plumbing systems, lighting, storm drainage and other mechanical systems of the Premises, exterior walls and windows of the Premises and utility and sewer pipes serving the Premises. Landlord shall be responsible for repairing any damage to the Premises caused by leaks in the roof, bursting pipes (by freezing or otherwise) or by defects in the Premises. Tenant shall keep all adjoining sidewalks in a neat and clean condition and promptly remove all dirt, trash, snow and ice therefrom. Tenant shall keep all common areas of the Premises neat and clean and in good order and repair.
(c) Landlord, Landlord's agents and employees, shall have the right to enter the Premises at any reasonable times for the purpose of making repairs necessary for the preservation of the Premises or otherwise perform Landlord's obligations under this Lease. Landlord shall make a reasonable effort to effect such repairs and perform such obligations with a minimum of interference to the Premises and the business conducted therein, and, when practicable, all work shall be done after Tenant's business hours unless Tenant shall otherwise direct.
9. Fire or Other Casualty. Tenant shall give Landlord prompt notice of any material fire or casualty occurring on or to the Premises. If any part of the Premises is damaged or destroyed by fire or other casualty, the rent shall be apportioned and suspended until the Premises are restored, taking into account the proportion of the Premises rendered untenantable. Promptly following such
damage or destruction, (a) if the damage or destruction is total or constitutes
a major structural injury to the building or the Premises, then either party
may, at its option, terminate this Lease by giving written notice to the other,
in which event this Lease shall terminate on the date of such damage or
destruction with the same effect as if the full term had expired on that date;
(b) if the damage or destruction is not total or does not constitute a major
structural injury to the building or Landlord does not elect to terminate as
permitted in this Section 9, Landlord shall, as soon as practicable, undertake
restoration and repair work necessary to restore the Premises to the same
condition as existed prior to the damage or destruction as nearly as reasonable.
Notwithstanding anything to the contrary contained herein, but without
limitation to Tenant's rights, if such restoration or repair is not complete
within fifteen(15) days after the casualty occurs, Tenant shall have the right,
upon written notice to Landlord, to terminate this Lease, in which event, this
Lease shall terminate on the date of such damage or destruction with the same
effect as if the full Term had expired on that date.
10. Alterations and Additions; Tenant's Equipment and Fixtures.
(a) Tenant shall not make any interior or exterior structural alterations or additions to the Premises other than minor non-structural alterations or improvements or install, rearrange or add to any electric, gas, water or other similar utility lines without first securing Landlord's prior written approval, which consent shall not be unreasonably withheld, delayed or conditioned. In requesting approval for any structural alterations, Tenant shall furnish Landlord with plans and specifications, in reasonable detail for such work, and any work approved by Landlord shall be done in accordance with such plans and specifications. Any improvements, alterations and additions shall be executed by Tenant in a good and workmanlike manner. Notwithstanding the foregoing, Tenant shall have the right to make non-structural alterations to the Premises without first obtaining Landlord's prior written consent, provided that the cost of each such alteration shall not exceed $50,000. All alterations additions and improvements to the realty shall be a part of the Premises and become the property of the Landlord.
(b) All items of Tenant's equipment, machinery and personal property not affixed to the Premises shall remain the property of Tenant. Tenant shall have the right to install trade fixtures required by Tenant, to remove any and all such trade fixtures from time to time, and Tenant shall remove all such trade fixtures (whether installed during or before the term of this Lease) before expiration or termination of this Lease. Tenant shall repair and restore any damage or injury to the Premises caused by the installation and/or removal of any such trade fixtures.
11. Liens. Landlord warrants and represents to Tenant that the Premises are not affected by any liens, encumbrances or restrictions that would interfere with Tenant's use of the Premises. Tenant shall not suffer or permit any mechanics liens to be filed against the fee of the Premises or Tenant's leasehold interest therein because of work, services or materials supplied or claimed to have been supplied to Tenant or anyone through or under Tenant. Tenant shall not suffer or permit any lien for services furnished thereto or any public improvements benefiting the Premises. Tenant agrees to indemnify and save Landlord harmless from nay liability, claim, demand, judgment, lien, violation, suits, costs and expenses, including reasonable attorney's fees, arising in any manner from work performed in the Premises by or at the discretion of Tenant or anyone holding all or part of the Premises through or under Tenant.
12. Condemnation.
(a) If the entire Premises are taken by eminent domain, or purchased in lieu thereof(hereafter called "condemnation"), this Lease will terminate on the date that possession of the Premises is taken by the condemning authority.
(b) If a portion of the Premises less than the whole is condemned, provided the remainder continues in Tenant's judgment to be suitable for the business of Tenant, this Lease shall terminate only for the part taken, and otherwise shall continue in full force and effect for the remaining portion of the Premises with an abatement of rent in the same proportion as to the square feet of leased space so taken or condemned.
(c) In the event of either a partial or entire taking, Landlord reserves to itself the full amount of any award or compensation attributable in whole or in part to the fair market value of the Premises, or to the value of Tenant's Leasehold interest in the Premises. Notwithstanding the foregoing, however, Landlord does not reserve, and Tenant does not waive in favor of Landlord, and may make a claim and receive from the condemning authority any compensation attributable to Tenant's own machinery and equipment or for any moving expenses for which Tenant may be entitled to compensation under law.
(d) If the condemnor should take only the right to possession for the duration of any emergency or other temporary condition, then, notwithstanding anything hereinabove provided, this Lease shall continue in full force and effect without any abatement of rent, but the amounts payable by the condemnor with respect to any period of time prior to the expiration of sooner termination of this Lease shall be paid by the condemnor to Landlord and the condemnor shall be considered a subtenant of Tenant. If the amounts payable hereunder by the condemnor are paid in monthly installments, Landlord shall apply the amount of such installments, or as much thereof as may be necessary for the purpose, toward the amount of rent due from Tenant as rent for that period, and Tenant shall pay to Landlord any deficiency between the monthly amount thus paid by the condemnor and the amount of rent.
13. Indemnification of Landlord. Subject to Section 6(c), Tenant hereby indemnifies, and shall pay, protect and hold Landlord harmless from and against all liabilities, loses, claims, demands, costs, expenses (including reasonable attorneys' fees and expenses) and judgments of any nature arising, or alleged to arise, from or in connection with (a) any injury to, or the death of, any person or loss or damage to property on or about the Premises arising from or connected with the possession, use, condition, occupancy, maintenance or repair of the Premises but only to the extent caused by the negligence of Tenant or its agents, or (b) any violation, or alleged violation by Tenant of this Lease or of any legal requirements.
14. Indemnification of Tenant. Subject to Section 6(c), Landlord hereby indemnifies, and shall pay, protect and hold Tenant harmless from and against all liabilities, losses, claims, demands, costs, expenses (including reasonable
attorney's fees and expenses) and judgments of any nature arising, or alleged to arise, from or in connection with (a) any injury to, or the death of, any person or loss or damage to property on or about the Premises or any adjoining property arising from or connected with the ownership, possession, use, condition, design, occupancy, constructions, maintenance, repair or rebuilding of the Premises or any adjoining property, unless such injury or damage is caused by the negligence of Tenant or its agents, or (b) any violation, or alleged violation, by Landlord of this Lease or of any legal requirements.
15. Default by Tenant. The occurrence of any one of the following shall constitute an event of default ("Event of Default") by Tenant:
(a) The abandonment of the Premises by Tenant.
(b) The failure by Tenant to make any payment of Rent or any other payment required to be made by Tenant hereunder within seven (7) days after receipt of written notice from Landlord that the same is due, except that such notice need not be given in more than two(2) instances in any twelve (12) month period.
(c) The failure by Tenant to observe or perform any of the covenants, conditions or provisions of this Lease to be observed or performed by Tenant within thirty(30) days after written notice thereof from Landlord; provided, however, that if the nature of such failure is such that it cannot reasonably be cured within such thirty(30) day period, Tenant shall not be deemed to be in default if Tenant shall within such period commence to cure the failure and, thereafter, diligently prosecute the same to completion. As a condition of its effectiveness, notice by Landlord shall state with specifically the provisions of this Lease alleged to be breached and the act or acts of Tenant acceptable o Landlord as a cure thereof.
(d) The making by Tenant of any general assignment, or general arrangement for the benefit of creditors; the filing by or against Tenant of a petition to have Tenant adjudged a bankrupt or a petition for reorganization or arrangement under any law relating to bankruptcy (unless, in the case of a petition filed against Tenant, the same is dismissed within ninety(90) days);
the appointment of a trustee or receiver to take possession of substantially all of Tenant's assets located at the Premises or of Tenant's interest in this Lease, where possession is not restored to Tenant within thirty(30) days; or the attachment, levy, execution or other judicial seizure of substantially all of Tenant's assets locate at the Premises or of Tenant's interest in this Lease, where such seizure is not discharged within thirty (30) days.
16. Landlord's Remedies. Upon the occurrence of an Event of Default by Tenant, at anytime thereafter, with or without notice or demand and without limiting the Landlord in the exercise of any right or remedy which Landlord may have by reason of such default or breach:
(a) Accelerate the whole or any part of the Rent and other charges, payments, costs and expenses herein agreed to be paid by Tenant for the entire unexpired balance of the Term. Such amount if so accelerated shall, in addition to any Rent already due and payable, be deemed due and payable as if, by the terms and provisions of this Lease, such accelerate Rent and other charges, payments, costs and expenses were on that date payable in advance.
(b) Reenter the Premises and remove all persons and all or any property
therefrom, either by summary disposes proceedings or by any suitable action or
proceeding at law, or by force or otherwise, without being liable to indictment,
prosecution or damages therefor, and reposses and enjoy the Premises, together
with all other installations of Tenant. Upon recovering possession of the
Premises by reason of or based upon or arising out of a Default on the part of
the Tenant, Landlord may, at Landlord's option, either terminate this Lease or
make such alterations and repairs as may be necessary in order to relet the
Premises; and relet the Premises or any part or parts thereof, either in
Landlord's name or otherwise, for a term or terms which may at Landlord's option
be less than or exceed the period which would otherwise have constituted the
balance of the Term and at such rent or rents and upon such other terms and
conditions as in Landlord's sole discretion may seem advisable and to such
person or persons as may in Landlord's discretion seem best. Upon each such
reletting all rents received by Landlord from such reletting shall be applied:
first, to the payment of any amounts other than Rent due hereunder from Tenant
to Landlord; second, to the payment of any costs and expenses of obtaining
possession of and reletting the Premises, including brokerage fees and attorney's fees and all costs of such alterations and repairs; third, to the payment of Rent due and unpaid hereunder; and the residue, if any, shall be held by landlord and applied in payment of future Rent as it may become due and payable hereunder. If such rentals received rom such relating during any month shall be less than that paid during that month by Tenant hereunder, Tenant shall pay any such deficiency to Landlord. Such deficiency shall be calculated and paid monthly. No such reentry or taking possession of the Premises or the making of alterations and/or improvements thereto or the reletting thereof shall be construed as an election on the part of Landlord to terminate this Lease unless written notice of such election be given to Tenant. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such previous Default. Tenant, for Tenant and Tenant's successors and assigns, hereby irrevocably constitutes and appoints Landlord as Tenant's and Tenant's successors and assigns, hereby irrevocably constitutes and appoints Landlord as Tenant's and Tenant's successors' and assigns' agent to collect the rents due and to become due under all subleases of the Premises or any parts thereof without in any way affecting Tenant's obligation to pay any unpaid balance of Rent due or to become due hereunder.
(c) To terminate this Lease and the Term hereby created without any right on the part of Tenant to waive the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken; whereupon Landlord shall be entitled to recover, in addition to any and all sums and damages for violation of Tenant's obligations hereunder in existence at the time of such termination, damaged with respect to the unexpired portion of the Term in an amount equal to the amount of the Rent reserved for the balance of the Term, as well as all other charges, payments, costs and expenses herein agreed to paid by Tenant for such period, all discounted at the rate of six percent(6%) per annum to their then present worth, less the fair rental value of the Premises for the balance of the Term, also discounted at the rate of six percent(6%) per annum to its them present worth, all of which amount shall be immediately due and payable from Tenant to Landlord.
(d) In the event of a breach of threatened breach by Tenant of any of the covenants or provisions hereof, Landlord shall have the right of injunction and the right to invoke any remedy allowed at law or in equity as if reentry, summary proceedings and other remedies were not herein provided for.
(e) No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy herein or by law provided but each shall be cumulative and in addition to every other night or remedy given herein or now or Hereafter existing at law or in equity or by statute, subject however, to legal and equitable principles limiting the exercise of duplicative remedies.
(f) If permitted by applicable law, Tenant expressly waives:
(i) The benefit of all laws, now or hereafter in force, exempting any goods on the Premises or elsewhere from levy or sale in any legal proceeding taking by Landlord to enforce any rights under this Lease;
(ii) The right to delay execution on any real estate that may be levied upon to collect any amount that may become due under the terms and conditions of this Lease and any right to have the same appraised; and
(iii)The right to three (3) months' notice and/or fifteen (15) or thirty (30) days' notice required under certain circumstances by the Landlord and Tenant Act of 1951, and Tenant hereby agrees that five (5) days' notice shall be sufficient in either or any such case.
(g) For the purpose of calculating the "accelerated Rent" payable under paragraph (a) of this Section and the "Rent reserved for the balance of the Term" for the purposes of paragraph (c) of of this Section of this Lease (but without discounting as provided therein), the amount payable by Tenant for real property taxes for the balance of the Term shall be equal to the sum of the highest amount paid or payable by Tenant in any calendar year for real property taxes multiplied by the number of calendar years (including any fractional calendar year) remaining in the Term.
(h) Attorneys' Fees. In the event of any default by Tenant of any of its obligations under this Lease, Tenant shall immediately pay to Landlord, upon demand, an amount equal to all reasonable attorneys' fees and court costs incurred by Landlord in enforcing its rights and remedies under this Lease, whether or not an administrative and/or judicial action is commenced by Landlord against Tenant by reason of such default.
(i) Curing Tenant's Defaults. If Tenant shall be in default of any of its obligations under this Lease, Landlord may (but shall not be obligated to do so), in addition to any other rights it may have in law or equity or under this Lease, cure such default on behalf of Tenant, and Tenant shall reimburse Landlord upon demand for any reasonable sums paid or cost incurred by Landlord in curing such default, together with interest at the Interest Rate from the respective dates of Landlord's making of the payments and incurring of the costs, on all sums advanced by Landlord as aforesaid, which sums and costs together with interest thereon shall be deemed Additional Rent payable under this Lease.
(j) Waiver of Breach. The waiver by Landlord or Tenant of any breach of any term, covenant or conditions contained in this Lease, shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained in this Lease.
(k) Effect of Default on Purchase Options. In the event of an Event of Default by Tenant under this Lease, the Right of First Refusal shall immediately terminate upon the occurrence of such Event of Default and thereafter shall be of no further force and effect, and the parties hereto shall thereafter have no further rights or obligations under Section 28 of this Lease.
17. Subordination.
(a) This Lease and all of the terms, covenants and conditions hereof is and shall be subject and subordinate to any existing mortgage or mortgages affecting the Premises. The foregoing notwithstanding, Landlord shall cooperate in obtaining a nondisturbance agreement, in form reasonably satisfactory to Tenant, from any existing mortgagee in favor of Tenant. Landlord agrees that the subordination of this Lease to any future mortgage and Tenant's obligation to
attorn to any future mortgage shall be conditioned upon any such mortgagee agreeing not to disturb Tenant's use and occupancy of the Premises and to recognize Tenant's rights under this Lease, so long as Tenant is not in default hereunder.
(b) As a condition of the subordination set forth in (a) above, such mortgage shall contain a covenant binding upon the holder thereof, or a separate agreement which shall be entered into with Tenant and the holders of the mortgage to be recorded with such mortgage or other security agreement, to the effect that:
(i) So long as Tenant observes the terms of this Lease, its rights of possession to the Premises under the terms and provisions of the Lease will not be affected or disturbed by the mortgage or other security agreement for the bond or note or debt secured thereby:
(ii) If the mortgagee or owner comes into possession of the Premises by foreclosure or otherwise, this Lease shall continue in effect and shall not be terminated by any such proceeding;
(iii) If the Premises are sold or otherwise disposed of pursuant to any right or power contained in the mortgage or other security agreement or the bond or note secured thereby, or as a result of proceedings thereon, the purchaser shall take title subject to this Lease and all the rights of Tenant hereunder;
(iv) In the event the buildings and improvements on the Premises are damaged by fire or other casualty, for which loss the proceeds payable under the insurance policy or policies are payable to the mortgagee, such insurance funds when paid, shall be made available for the purpose of repair and restoration as provided in this Lease; and
(v) The agreement shall be binding upon the Landlord's mortgagee and its prospective heirs, executors, administrators, personal representatives, successors and assigns. Notwithstanding the foregoing, to the extent the Premises are on the date of this Lease subject to a mortgage which does not meet the above requirements, Landlord shall only be required to use its best efforts to obtain an appropriate separate agreement of the mortgagee.
18. Assignment and Subletting.
(a) Tenant shall not assign this Lease or sublet any portion of the Premises without first obtaining Landlord's prior written consent thereto, which consent shall not be unreasonably withheld, delayed or conditioned. Tenant's entering into an assignment or sublease shall not release Tenant from its obligations hereunder and no consent to an assignment or subletting shall be deemed to be a consent to any further subletting or assignment. In addition, Tenant shall not convey, mortgage, pledge, encumber or otherwise transfer (collectively, "Pledge"), whether voluntarily or otherwise, this Lease or any interest in or under this Lease. Any attempt by Tenant to assign or Pledge this Lease or sublet the Premises in contravention of the terms of this Lease shall constitute an event of default hereunder.
(b) If Landlord consents to an assignment of this Lease, each assignee hereunder shall assume and be deemed to have assumed this Lease and should be and remain liable jointly and separately with Tenant for all payments and for the due performance of the terms, covenants, conditions and provisions herein contained on Tenant's part to be observed. No assignment shall be binding upon Landlord, unless the Assignee shall deliver to Landlord an instrument containing a covenant of assumption by the assignee. The failure or refusal of an assignee to execute the same shall not release the assignee from its liability as set forth herein.
(c) Any consent by Landlord to an assignment or subletting shall not constitute a waiver of strict future compliance by Tenant with the provisions of this Section 18, nor shall it be deemed to release Tenant from the full performance by Tenant of the terms, covenants, provisions or conditions contained in this Lease.
(d) Notwithstanding the foregoing, Tenant shall have the right, without Landlord's consent, to assign or sublease all or a portion of the Premises, or the leasehold hereunder, to an Affiliate (or a combination of Affiliates) or a Successor of Tenant. For purposes hereof, an "Affiliate" or "Successor" of Tenant is an entity controlling, under common control with or controlled by Tenant, including an entity resulting from a merger or consolidation by Tenant.
Any such Affiliate of Successor of Tenant must expressly assume in writing a pro rata share of Tenant's obligations hereunder in the proportion that the number of square feet of rentable area of the Premises subleased or assigned to such Affiliate or Successor of Tenant bears to the total number of square feet of rentable area in the Premises, without relieving Tenant of any liability hereunder.
19. Representations, Warranties and Covenants.
(a) To induce Landlord to enter into this Lease, Tenant represents,
warrants and covenants to Landlord as follows:
i. Valid Organization, Good Standing and Qualification. Tenant is a corporation duly formed, validly existing and in good standing under the laws of the Commonwealth of Pennsylvania, has full power and authority to execute, deliver and comply with Lease, and to carry on its business as it is now being conducted.
ii. Due Authorization; No Legal Restrictions. The execution and delivery by Tenant of this Lease, the consummation of the transactions contemplated by this Lease and the fulfilment and compliance with the respective terms, conditions and provisions of this Lease have been duly authorized by all requisite governance action of Tenant.
iii. Payment of Obligations. Tenant will pay when due all amounts due hereunder without set off, deduction or counterclaim.
iv. Payment of Charges. Tenant shall pay all charges incident to this Lease, including, without limitation, all of the Landlord's legal fees in connection with any amendment, assignment of this Lease, any subletting of the Premises and with the enforcement of this Lease.
(b) Landlord's Representations, Warranties and Covenants. To induce Tenant to enter into this Lease, Landlord represents, warrants and covenants to Tenant as follows:
i. Valid Organization, Good Standing and Qualification. Landlord is a limited liability company, existing under the laws of the Commonwealth of
Pennsylvania, has full power and authority to execute, deliver and comply with the lease, and to carry on its business as it is now being conducted.
ii. Due Authorization; No Legal Restrictions. The execution and delivery by Landlord of this Lease, the consummation of the transactions contemplated by this Lease and the fulfillment and compliance with the respective terms, conditions and provisions of this Lease have been duly authorized by all requisite governance action of Landlord.
iii. No Uncured Notices of Violations. As of the Commencement Date, Landlord has received no notice of violation of any applicable laws, ordinances, rules and regulations of governmental authorities, or if any such notice has been delivered to Landlord, Landlord has corrected such violation.
iv. No Interference with Use. Landlord warrants and represents to Tenant that to Landlord's knowledge the Premises are not affected by any liens, encumbrances or private restrictions that would interfere with Tenant's use of the Premises as described in Section 4 of this Lease.
v. Title to Premises. Except for any mortgages, liens, encumbrances, restrictions, obligations and exceptions granted to by Landlord to the Columbia County Industrial Development Authority or Sovereign Bank in connection with Landlord's acquisition of the Premises on the date hereof, Landlord is the owner of Premises, free and clear of any and all liens, encumbrances, restrictions, obligations, and exceptions which would not permit or limit Tenant's use of the Premises for the purpose set forth herein or Tenant's other rights hereunder.
vi. Structural Components of Premises. The structural components of the Premises, including but not limited to the roof, heating systems, air circulation system, wiring, ventilating systems, electrical system, plumbing system, and lighting system are, as to their major components, in good working order and condition.
20. Tenant's Certificate. Tenant shall, from time to time within thirty days of any request by Landlord, execute and deliver to Landlord a certificate
stating that this Lease is in full force and effect, has not been modified (or, if it has been modified, identifying the modifications), that to Tenant's knowledge no default exists on the part of either Landlord or Tenant (or, if such a default does exist, specifying the default) and specifying the date to which rent and other charges have been paid by Tenant hereunder.
21. Surrender. At the expiration or earlier termination of the term of this Lease, Tenant shall surrender and deliver possession of the Premises and all improvements and alterations thereto in good condition and repair, in a clean condition, subjection to (a) reasonable wear and tear, (b) damage caused by fire or other casualty and/or (c) damage caused by Landlord.
22. Signs. Tenant may to the extent and manner allowed by law or public regulation place, erect, maintain or paint signs upon the Premises provided that they are maintained by Tenant in good condition during the term hereof, and Tenant shall remove all signs at the termination of this Lease, repairing any damage caused by the installation and/and or removal thereof. Tenant shall also have the right to install and place an appropriate sign or signs at or near the entrance to the Premises.
23. Lender's Requirements. Upon request of Tenant or Tenant's assignees or any subtenant, Landlord shall execute and deliver any real estate consent or waiver forms submitted by any vendors, lessors, chattel mortgages, or holders or owners of any trade fixtures, signs, equipment, furniture or other personal property of any kind and description kept on or installed on the Premises setting forth the fact that Landlord waives, in favor of said vendor, lessor, chattel mortgagee, owner or holder any lien, claim, interest or other right therein superior to that of such vendor, lessor, chattel mortgagee, owner or holder. Landlord shall further acknowledge that the property covered by such consent or wavier forms is personal property (if in fact such is the case) and not to become a part of the realty no matter how affixed thereto and that such property may be removed from the Premises by the vendor, lessor, chattel mortgagee, owner or holder at any time upon default in the terms of such chattel mortgage or other similar documents, free and clear of any claim or lien of Landlord.
24. Notices. All notices to be given to Landlord shall be sent by certified U.S. mail, return receipt requested, or by overnight mail to the following address:
JAD ASSOCIATES, LLC
111 Presidential Boulevard
Suite 240
Bala Cynwyd, Pennsylvania 19004
Attn: David W. Menard, Member
Notice to Tenant shall be sent by certified U.S. mail, return receipt requested or by overnight mail to:
RADO ENTERPRISES, INC.
20 Industrial Drive
Bloomsburg, Pennsylvania 17815
The party to whom notice is to be given may change the address for the giving of notices by delivering notice of such change to the other party. Notices are to deemed delivered on the date received.
25. Holding Over. Should Tenant continue to occupy the Premises after expiration of the Term of this Lease, such tenancy shall be one at sufferance from month to month at the terms and conditions otherwise set forth in this Lease.
26. Broker. Landlord and Tenant each represents and warrants to the other that it has not dealt with any broker or finder, and that each party shall indemnify and hold the other harmless if its representation is untrue.
27. Recordation. This Lease (or an appropriate memorandum thereof) shall be recorded in the appropriate Recorder of Deeds Office by Landlord, at Landlord's sole cost and expense, promptly after the date of the execution and delivery hereof.
28. Right of First Refusal. Landlord grants to Tenant the right of first refusal to purchase the Premises from Landlord as follows:
a. In the event Landlord desires to sell the Premises, Landlord shall provide prompt written notice (such notice shall be referred to in this Section
28 as the "Notice") of that desire to Tenant prior to soliciting any offers for
purchase. Tenant shall have the right, but not the obligation, within thirty
(30) days after receipt of the Notice, to purchase the Premises on the terms and
conditions contained in this Section 28 ("Purchase Option").
In the event Tenant desires to purchase the Premises, it must provide written notice of that election to Landlord within said thirty (30) day period after the receipt of the Notice. Non-delivery of written acceptance by Tenant within the thirty (30) day period shall be conclusive of the fact that Tenant chooses not to purchase the Premises.
The written notice shall specify a closing date which shall be no more than one hundred and eighty (180) days after the date of the written notice. Upon the timely exercise of the Purchase Option by Tenant, this Lease, together with the notice from Tenant exercising the Purchase Option, shall also be deemed to be an agreement of sale and purchase between Landlord and Tenant with respect to the Premises without the necessity of any further act or agreement; provided, however, that, pending the consummation of closing for such purchase and sale, this Lease will nevertheless also remain in full force and effect, as a lease, and Tenant will remain obligated to perform all of its obligations under this Lease, including without limitation the obligation to pay rent. Closing on the sale and purchase of the Premises pursuant to this Section 28 shall be held at the offices of the Tenant's counsel. If this Lease shall have been terminated or shall have expired prior to the closing of the sale or prior to the delivery of the Notice by Landlord to Tenant, then the parties shall enter into a customary and reasonable agreement of sale for the Premises incorporating the terms and conditions set forth in this Section 28.
b. The purchase price ("Purchase Price") for the Premises shall be the fair market value as of the date of the written notice of the exercise of the Purchase Option and shall be paid at closing by wire transfer of immediately available funds to an account designated by Landlord.
If Landlord and Tenant are unable to agree between themselves on the fair market value of the Premises within twenty (20) days following the exercise of the Purchase Option, then Landlord and Tenant shall agree upon the selection
of a qualified appraiser who shall determine the fair market value. The
determination of the appraiser shall be binding on the parties. If Landlord and
Tenant are unable to agree upon the selection of an appraiser within ten (10)
days after the expiration of such twenty day period, then the fair market value
shall be determined by two appraisers, one to be chosen by each of the Landlord
and Tenant. If either party fails to select an appraiser as required within five
(5) days, the appraiser chosen by the other party shall determine the fair
market value. The fair market value as determined by the sole appraiser, or the
average of the fair market values as determined by each of the two appraisers,
as the case may be, shall be final and binding on the parties. The costs and
expenses of the appraiser(s), shall be borne equally by each of Landlord and
Tenant.
c. Title to the Premises shall be conveyed by special warranty
deed and shall be insurable as good and marketable by a reputable title
insurance company authorized to transact business in the Commonwealth of
Pennsylvania pursuant to an ALTA (or successor organization's) standard form of
Owner's Policy of Title Insurance then in use in Pennsylvania, subject to the
standard exceptions thereof. If Landlord is unable to convey title to the
Premises to Tenant at the closing in accordance with the requirements of this
Section 28.c, Tenant shall have the options (i) of taking such title as Landlord
is able to convey with abatement of the Purchase Price in the amount of any
fixed or ascertainable liens upon the Premises which are not otherwise the
obligation of Tenant to discharge under this Lease, or (ii) of terminating
Tenant's obligations under this Section 28 only and upon exercise of such
termination right, this Section 28 shall be null and void and neither party
shall have any obligations under this Section 28, although the remaining terms
and conditions of this Lease shall remain in full force and effect as if the
Purchase Option had not been exercised.
d. At closing and as part thereof, rents and other sums payable by Tenant under this Lease shall be apportioned between the parties on a per diem basis as of the date of closing. All rents and other sums which have accrued through the date of closing shall also be paid at closing. All rent and other sums which have been prepaid for periods after closing shall also be so apportioned and credited on the account of the Purchase Price. All real estate transfer taxes payable in connection with the sale and purchase of the Premises shall be paid one-half by Landlord and one-half by Tenant.
e. The sale and purchase of the Premises shall be made on an "as is", "where is" basis and without any representations or warranties whatsoever being made by Landlord, except as specifically set forth in this Section 28.
f. If at any time following the exercise by Tenant of the Purchase Option and before closing thereunder any portion of the Premises is destroyed or damaged as a result of fire or other casualty, the rights and obligations of the parties under this Section 28 shall not be affected thereby; provided, however, that if Tenant would otherwise have the right under this Lease to terminate this Lease as a result thereof, Tenant shall also have the right, upon exercise of its right to terminate this Lease, to terminate the Purchase Option.
g. Landlord states to Tenant that the current zoning classification of the Premises under the zoning code of the jurisdiction in which the Premises are located is ________, and that the use of the Premises for the conduct of a mechanical contracting business as conducted by Tenant prior to the date hereof is permitted under such zoning classification, and that Landlord has received no written notices from any governmental authority having jurisdiction of any uncorrected violation of applicable housing, building, safety or fire ordinances with respect to the Premises.
h. The parties represent and warrant to each other that neither has dealt with any broker, finder or other intermediary in connection with the sale contemplated by this Section 28, and each agrees to indemnify, defend and hold the other harmless from all claims, demands, causes of action, liabilities and expenses (including attorneys fees) arising from any claims for commissions made by any broker, finder or other intermediary claiming through the indemnifying party. The provisions of this subsection shall survive closing on the purchase and sale of the Premises.
i. Tenant shall have the right, without Landlord's consent, to assign all or a portion of the Purchase Option to an Affiliate (or a combination of Affiliates) or a Successor of Tenant. For purposes hereof, an "Affiliate" or "Successor" of Tenant is an entity controlling, under common control with or controlled by Tenant, including an entity resulting from a merger or consolidation by Tenant.
j. The rights of first refusal granted to Tenant in this Section 28 shall be effective during the initial term hereof as well as during any five year Extension Option thereof and shall remain effective for a two year period following the expiration or termination of this Lease for any reason whatsoever.
29. Quiet Enjoyment.
Tenant shall peaceably and quietly hold and enjoy the Premises for the term, without hindrance or molestation from Landlord, or anyone claiming by through or under Landlord, under and subject to the terms and conditions of this Lease.
30. Miscellaneous
(a) The headings preceding each section of this Lease are for convenience of reference only and shall not affect the construction or meaning of the provisions hereof.
(b) If any of the provisions of this Lease, or the application thereof to any person or circumstance, shall be determined to be invalid or unenforceable, the parties shall execute an amendment to this Lease incorporating a lawful clause with similar economic consequences so that the respective rights and obligations of the parties shall be maintained. Further, the remainder of this Lease, or the application of any such provision to persons or circumstances other than those to whom or for which such provision was determined to be invalid or unenforceable, shall not be affected by such amendment, and shall be valid and enforceable to the fullest extent permitted by law.
(c) No payment by Tenant or receipt by Landlord of a lesser amount than the correct rent or additional rent due hereunder shall be deemed to be other
than a payment on account, nor shall any endorsement or statement on any check or any letter accompanying any check or payment be deemed to effect or evidence an accord an satisfaction, and Landlord may accept such check for payment without prejudice to Landlord's right to recover the balance or pursue any other remedy in this Lease or at law provided.
(d) This Lease shall be governed in all respects by the Commonwealth of Pennsylvania
(e) This Lease shall inure to and be binding on the parties hereto, and their respective heirs, successors and assigns (but no rights shall inure to the benefit of any assignee of Tenant, except a Successor or Affiliate, unless Landlord has consented to the assignment, as required under Section 18).
(f) This Lease may be executed in any number of counterparts, each of which shall be deemed to be an original as against any party whose signature appears thereon, and all of which shall together constitute one and the same instrument. This Lease shall become binding when one or more counterparts hereof, individually or taken together, shall bear the signatures of all the parties reflected herein as the signatories.
IN WITNESS WHEREOF, Landlord and Tenant have caused their duly authorized representatives to execute this Lease the day and year first above written.
LANDLORD:
JAD ASSOCIATES, LLC, a
Pennsylvania limited
liability company
By: /S/ David W. Menard ------------------- David W. Menard, Member By: /s/ Jacqueline J. Menard ------------------------ Jacqueline J. Menard, Member |
TENANT:
RADO ENTERPRISES, INC.
By: /S/ David W. Menard ------------------- David W. Menard, Chairman |
SCHEDULE 1
Rent Initial Term: For each year of the initial term, at the rate of $120,000.00 per year. Extension Period: For each year of any extension term, at an annual rate equal to (i) $120,000.00, times (ii) a fraction, the numerator of which is the "Index" (hereinafter defined) for the calendar month immediately preceding the commencement of the extension term, and the denominator of which in the Index for the calendar month immediately preceding the Commencement Date of the initial term. On or before the commencement of any extension term, Landlord shall compute and shall give Tenant written notice of the annual rent therefor. |
As used herein, the "Index" shall mean the Consumer Price Index published by the United States Department of Labor Bureau of Labor Statistics, All Urban Consumer (CPI-U), U.S. City Average, All Items (1982-1984 = 100), or such successor index as most closely thereto reflects changes in the cost of living.
Exhibit "A"
Legal Description of the Premises
ALL THAT CERTAIN piece or parcel of land, lying and being situate in the Township of South Centre, County of Columbia and State of Pennsylvania, and more particularly described as follows, to wit:
BEGINNING at an iron pin, said pin being located at the southerly corner of Parcel E-3, said parcel recently conveyed by the Columbia County Industrial Development Authority to the Bloomsburg Area Industrial Development Association, Inc., (Foam Fabricators, Inc.);
THENCE North 60 degrees 02 minutes East 440 feet to an iron pin;
THENCE South 25 degrees 41 minutes East 367.81 feet to an iron pin set at the northeast corner of lands now or late of Larry Emery;
THENCE along the northerly boundary line of lands now or late of Larry Emery, Winston Emery, Genieveve Swisher and David L. Schultz South 60 degrees 02 minutes West 354.5 feet to an iron pin;
THENCE South 61 degrees 37 minutes West 155 feet to an iron pin set;
THENCE North 25 degrees 41 minutes West 325 feet to an iron pin set;
THENCE North 32 degrees 09 minutes East 82.12 feet to the point of
BEGINNING.
CONTAINING 4.25 acres more or less.
This description is prepared in accordance to a survey performed by George R. Evans, P.E., dated June 1, 1988, revised October 24, 1988.
Subject to any ordinance of the South Centre Township Authorities.
EXHIBIT 31
I, David W. Menard, Chief Executive Officer and Chief Financial Officer of the registrant, certify that:
1. I have reviewed this annual report on Form 10-KSB of Moro Corporation;
2. Based on my knowledge, this annual report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this annual report;
3. Based on my knowledge, the financial statements, and other financial information included in this annual report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this annual report;
4. The registrant's other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-14 and 15d-14) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(c) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
5. The issuer's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f)), to the issuer's auditors and the audit committee of the issuer's board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the issuer's ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the issuer's internal control over financial reporting.
Date: April 13, 2004 /s/ David W. Menard ------------------- David W. Menard, Chief Executive Officer and Chief Financial Officer |
Exhibit 32
CERTIFICATION PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
(18 U.S.C. SECTION 1350)
In connection with the accompanying Annual Report of Moro Corporation (the "Company") on Form 10-KSB for the period ended December 31, 2003 (the "Report"), I, David W. Menard, Chief Executive Officer and Chief Financial Officer of the Company, hereby certify that to my knowledge:
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) as applicable of the Securities Exchange Act of 1934 as amended; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Dated: April 13, 2004 /s/ David W. Menard ------------------- David W. Menard Chief Executive Officer and Chief Financial Officer |