<PAGE> 1
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934.
For the quarterly period ended December 31, 1998
-----------------
OR
[ ] 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 2-30905
HMI INDUSTRIES INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 36-1202810
------------------------------ ---------------------------------
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
3631 Perkins Ave, Cleveland, Ohio 44114
--------------------------------- -----
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (216) 432-1990
---------------
- --------------------------------------------------------------------------------
Former Name, Former Address and Former Fiscal Year, if Changed Since Last Report
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past ninety (90) days. Yes X No
----- ------
APPLICABLE ONLY TO CORPORATE ISSUERS:
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
Class Outstanding at January 31, 1999
------------------------------------ -------------------------------
Common stock, $1 par value per share 5,216,987
================================================================================
<PAGE> 2
INDEX
PART I. FINANCIAL INFORMATION_________________________________________________3
ITEM 1. FINANCIAL STATEMENTS________________________________________________3
CONSOLIDATED CONDENSED BALANCE SHEETS____________________________________3
CONSOLIDATED CONDENSED STATEMENTS OF INCOME______________________________4
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOW___________________________5
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS_____________________6
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS_______________________________________________________7
Results of Operations____________________________________________________7
Liquidity and Capital Resources_________________________________________10
Cautionary Statement for "Safe Harbor" Purposes Under the Private
Securities Litigation Reform Act of 1995______________________________11
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK________12
PART II. OTHER INFORMATION___________________________________________________12
ITEM 1. LEGAL PROCEEDINGS_________________________________________________12
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS_________________________12
ITEM 3. DEFAULTS UPON SENIOR SECURITIES___________________________________12
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS_______________12
ITEM 5. OTHER INFORMATION_________________________________________________12
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K__________________________________12
(a) Index to Exhibits__________________________________________________12
(b) Reports on Form 8-K________________________________________________12
2
<PAGE> 3
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
CONSOLIDATED CONDENSED BALANCE SHEETS
<TABLE>
<CAPTION>
(UNAUDITED)
DECEMBER 31, September 30,
1998 1998
-------------------- -------------------
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents $ 21,604 $ 51,365
Trade accounts receivable (net of allowance of $915,974 and $1,084,594) 3,004,406 3,892,141
Notes receivable 90,180 90,180
Finance contracts receivable 37,264 42,305
Inventories:
Finished goods 1,995,376 2,292,552
Work-in-progress, raw material and supplies 1,868,081 2,071,003
Deferred income taxes 2,305,069 1,342,862
Prepaid expenses 215,008 226,489
Other current assets 29,674 --
------------ ------------
Total current assets 9,566,662 10,008,897
------------ ------------
PROPERTY, PLANT AND EQUIPMENT, NET 2,174,805 5,010,053
------------ ------------
OTHER ASSETS:
Long-term notes receivable (less amounts due within one year) 227,276 249,821
Cost in excess of net assets of acquired businesses
(net of amortization of $2,818,018 and $2,756,642) 6,385,732 6,446,682
Deferred income taxes 1,529,602 2,253,805
Unamortized trademarks 288,300 289,162
Finance contracts receivable (less amounts due within one year) 74,528 84,610
Other 17,996 65,753
------------ ------------
Total other assets 8,523,434 9,389,833
------------ ------------
Total assets $ 20,264,901 $ 24,408,783
============ ============
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Trade accounts payable $ 3,937,243 $ 5,118,002
Income taxes payable 1,361,322 1,126,049
Accrued expenses and other liabilities 3,047,557 3,152,908
Long-term debt due within one year 121,670 121,599
------------ ------------
Total current liabilities 8,467,792 9,518,558
------------ ------------
LONG-TERM LIABILITIES:
Long-term debt (less amounts due within one year) 602,956 549,819
Other 202,245 241,401
------------ ------------
Total long-term liabilities 805,201 791,220
------------ ------------
STOCKHOLDERS' EQUITY:
Preferred stock, $5 par value; authorized, 300,000 shares; issued, none -- --
Common stock, $1 par value; authorized, 10,000,000 shares;
issued, 5,368,556 shares 5,368,556 5,368,556
Capital in excess of par value 8,008,098 8,173,924
Unearned compensation, net (421,808) (522,984)
Retained earnings (180,857) 3,103,052
Other comprehensive loss (Note 6) (1,035,207) (1,037,721)
------------ ------------
12,990,516 15,084,827
Less treasury stock 159,188 and 210,191 shares, respectively, at cost 746,874 985,822
------------ ------------
Total stockholders' equity 10,991,908 14,099,005
------------ ------------
Total liabilities and stockholders' equity $ 20,264,901 $ 24,408,783
============ ============
</TABLE>
See notes to consolidated condensed financial statements.
3
<PAGE> 4
CONSOLIDATED CONDENSED STATEMENTS OF INCOME
(Unaudited)
<TABLE>
<CAPTION>
For the three months ended December 31,
1998 1997
---------------------------------------
Revenues:
<S> <C> <C>
Net product sales $ 9,171,973 $ 8,911,190
Financing revenue and other 115,658 100,325
------------ ------------
9,287,631 9,011,515
Operating costs and expenses:
Cost of products sold 6,556,405 6,130,494
Selling, general and administrative expenses 3,273,916 5,352,758
Interest expense 28,323 532,675
Impairment loss (Note 3) 2,664,574 --
Other expenses 48,322 15,857
------------ ------------
Total expenses 12,571,540 12,031,784
------------ ------------
Loss before income taxes (3,283,909) (3,020,269)
Provision (benefit) for income taxes -- (915,442)
------------ ------------
Loss before discontinued operations (3,283,909) (2,104,827)
------------ ------------
Income from discontinued operations -
Household Rental Systems (net of taxes of $-0-) -- 262,218
Bliss Manufacturing (net of taxes of $289,393) -- 472,167
Tube Fab Ltd (net of taxes of $128,733) -- 210,038
------------ ------------
-- 944,423
------------ ------------
Net loss $ (3,283,909) $ (1,160,404)
============ ============
Weighted average number of shares outstanding 5,182,276 5,032,105
============ ============
Basic and diluted per share of common stock:
Loss before discontinued operations $ (0.63) $ (0.42)
Income from discontinued operations $ -- $ 0.19
------------ ------------
Net loss $ (0.63) $ (0.23)
============ ============
Cash dividends per common share $ -- $ --
============ ============
</TABLE>
See notes to consolidated condensed financial statements.
4
<PAGE> 5
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOW
(Unaudited)
<TABLE>
<CAPTION>
For the three months ended December 31,
1998 1997
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Cash flows from operating activities:
Net loss $(3,283,909) $(1,160,404)
Adjustments to reconcile net loss to net cash used in
operating activities:
Depreciation and amortization 234,785 695,536
Impairment of asset 2,664,574 --
Amortization of stock awards, net 174,298 272,250
Deferred income taxes (238,004) (124,563)
Changes in operating assets and liabilities:
Decrease in receivables 925,403 2,380,455
Decrease (increase) in inventories 500,098 (1,151,381)
Decrease in prepaid expenses 11,481 101,592
(Increase) decrease in other current assets (29,674) 28,844
Decrease in accounts payable (1,180,759) (1,001,531)
Decrease in accrued expenses and other liabilities (144,507) (1,117,985)
Increase (decrease) in income taxes payable 235,273 (393,708)
Other, net 47,972 (411,835)
----------- -----------
Net cash used in operating activities (82,969) (1,882,730)
----------- -----------
Cash flows from investing activities:
Capital expenditures -- (90,881)
----------- -----------
Net cash used in investing activities -- (90,881)
----------- -----------
Cash flows from financing activities:
Net borrowings under credit facility 84,478 3,207,545
Payment of long term debt (31,270) (654,410)
----------- -----------
Net cash provided by financing activities 53,208 2,553,135
----------- -----------
Net (decrease) increase in cash and cash equivalents (29,761) 579,524
Cash and cash equivalents, beginning of period 51,365 239,797
----------- -----------
Cash and cash equivalents, end of period $ 21,604 $ 819,321
=========== ===========
</TABLE>
See notes to consolidated condensed financial statements.
5
<PAGE> 6
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
1. Summary of Significant Accounting Policies
----------------------------------------------
BASIS FOR PREPARATION OF THE CONSOLIDATED CONDENSED FINANCIAL
STATEMENTS
The interim consolidated condensed financial statements included in this report
have been prepared, without audit, by HMI Industries Inc. ("the Company") from
the consolidated statements of the Company and its subsidiaries, pursuant to
the rules and regulations of the Securities and Exchange Commission. Although
the Company believes that the disclosures are adequate to make the information
presented not misleading, certain information and footnote disclosures,
including significant accounting policies, normally included in annual
financial statements have been condensed or omitted pursuant to such rules and
regulations.
In the opinion of management, the unaudited financial information for the
interim periods presented reflects all adjustments (which include only normal,
recurring adjustments) necessary for a fair presentation. These condensed
consolidated financial statements and notes thereto should be read in
conjunction with the consolidated financial statements and notes thereto
included in the Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 1998. Operating results for interim periods are not necessarily
indicative of operating results for an entire fiscal year.
RECLASSIFICATION
Certain prior year amounts have been reclassified to conform to the fiscal 1999
presentation.
2. Earnings Per Share
---------------------
The denominators for calculating the Company's basic and diluted earnings per
share are identical as all common stock equivalents are anti-dilutive as of
December 31, 1998 and 1997.
3. Discontinued Operations
--------------------------
All previously recorded discontinued operations were disposed of in fiscal
1998. Sales applicable to discontinued operations for the three months ended
December 31, 1997 were $17,509,500.
6
<PAGE> 7
4. Property, Plant and Equipment
--------------------------------
On January 12, 1999, the Company sold its current facility and related land in
Cleveland, Ohio, to Rose Management Company, a local real estate investment
company, for $840,000. The net book value of the related land and building at
the time of sale was $3,504,600. In December 1998, the Company recorded a
non-cash impairment loss of $2,664,600 on the building to reflect the
difference between the sales price and the net book value of the property. The
impairment loss was recorded as a separate line item under operating expenses
in the Consolidated Condensed Statement of Income.
5. Debt
-------
The Company's credit facility agreement includes, but is not limited to,
various covenants that limit the Company's ability to incur additional
indebtedness, limit compensation to key personnel and transactions with
affiliates, restrict paying dividends, limit book net worth and limit the
ability for capital expenditures. As of December 31, 1998, the Company was not
in compliance with the book net worth covenant due to the non-cash impairment
loss on the Company's Cleveland, Ohio facility (See Note 4); however, the
Company obtained a waiver on this covenant through December 31, 1998. The
credit agreement was amended in January 1999 to adjust the book net worth
covenant referred to above.
6. Comprehensive Income
-----------------------
During the first quarter of fiscal 1999, the Company adopted Statement of
Financial Accounting Standards No. 130 ("FAS 130"), "Reporting Comprehensive
Income," which establishes new rules for the reporting and display of
comprehensive income and its components. In general, comprehensive income
combines net income and "other comprehensive items," which represents foreign
currency translation adjustments, reported as a component of shareholders'
equity in the accompanying consolidated condensed balance sheet. The Company
presents such information in its statement of stockholders' equity on an annual
basis and in a footnote in its quarterly reports. The Company had a
comprehensive loss of $3,281,400 and $1,627,300 for the quarters ended December
31, 1998 and 1997, respectively.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
RESULTS OF OPERATIONS
NET PRODUCT SALES- Net product sales for the quarter ended December 31, 1998
increased by $267,800 or 3.0% as compared to fiscal 1998. The increase in sales
is due primarily to increases in the European and Americas Divisions offset by
decreases in Asia and Canada. The increase in European sales is attributable to
a 100% increase in the number of Defender units sold (the Company's air
filtration product) and expansion of new importer offices in Western Europe. In
the Americas Division in fiscal 1998, growth was resisted in favor of
stabilization. Low
7
<PAGE> 8
producing distributor offices were eliminated and a cash only sales policy was
established. In spite of one third fewer distributor offices, the Americas
Division increased sales in the first quarter of fiscal 1999 as compared to the
same period in fiscal 1998 by maintaining Majestic sales (the Company's floor
care product) and increasing Defender sales by 35%. The increase in Defender
sales is directly attributable to the repackaging of the Company's products (the
Majestic and Defender) as a side by side system rather than stand alone
products. Sales in Asia have continued to be adversely affected by the unstable
economic conditions and devaluation of certain currencies, primarily in Korea.
Following last year's fallout of the Asian currency devaluation, the Company had
anticipated a return to growth in four of its most promising markets - Korea,
Singapore, Malaysia and the Philippines. Although the first quarter product
sales do not reflect this anticipated growth, the Company anticipates shipping
to begin in all four markets by the third fiscal quarter of 1999. In March 1998,
the Company changed the way it went to market in Canada, moving from a company
owned distribution warehouse to an importer. A trade discount, which is reduced
yearly, was provided to the importer in exchange for his assumption of all
selling and administrative expenses associated with the Canadian operation. This
trade discount accounts for a portion of the decrease in Canadian revenue. The
decrease in Canadian sales is also related to a decrease in After the Sale
("ATS") parts. The main focus of the Canadian importer has been on maintaining a
strong distributor network and stabilizing Majestic sales while rebuilding the
ATS program in Canada. The rebirth of the ATS program is taking longer than
originally estimated but Company management and the Canadian importer are
currently developing a strategy that they feel will improve the growth of ATS
parts sales.
The Company's net product sales and income from continuing operations are not
materially impacted by inflation or changing prices.
GROSS PROFIT- Gross profit, exclusive of financing revenue, for the quarter
ended December 31, 1998 was $2,615,600, or 28.5%, as compared to $2,780,700, or
31.2%, in the quarter ended December 31, 1997. A change in the way the Company
went to market in Canada (see Net Product Sales above)and a new Majestic model
led to the decrease in the gross profit margin. In March 1998, the Company
introduced its 70th Anniversary Majestic model to the distribution network.
Increases in material costs of $128,400 associated with the new model are
reflected in the gross margin for the quarter ended December 31, 1998.
Exclusive of the items discussed above, the gross margin percentage for the
quarter ended December 31, 1998 would have been 34.1%. This improvement in the
gross margin percentage, is reflective of improved efficiencies resulting from
initiatives begun in the fourth quarter of fiscal 1997 and continued throughout
fiscal 1998 to strengthen business processes, reduce costs, and improve
quality. These initiatives continue today as management conducts its review of
component costs and continues to strengthen operational processes.
SELLING, GENERAL, AND ADMINISTRATIVE - Selling, general and administrative
("SG&A") costs decreased by $2,078,800 for the quarter ended December 31, 1998
versus the comparable quarter of fiscal 1998. The decrease in SG&A expenses is
primarily related to a $1,330,100 decrease in employee related costs generated
by the Company's cost reduction measures undertaken in fiscal
8
<PAGE> 9
1998 and continuing into fiscal 1999. In fiscal 1998, the Company downsized its
businesses to one core business segment, downsized its staff to an appropriate
level, reduced non-sales growth expenses and fixed costs. Also contributing to
the decrease in SG&A expenses is $286,700 relating to the Canadian and Holland
entities. These operations were downsized in fiscal 1998 as part of the
Company's cost reduction plan.
INTEREST EXPENSE - Interest expense for the quarter ended December 31, 1998 was
$28,300 or $504,400 lower than the comparable quarter of fiscal 1998 due
primarily to lower outstanding balances on the current credit facility as
compared to the Star Bank credit facility in fiscal 1998. The Star Bank credit
facility was retired in March 1998 from the proceeds generated from the
Company's sale of its Bliss Manufacturing operation.
IMPAIRMENT LOSS - On January 12, 1999, the Company sold its current facility
and related land in Cleveland, Ohio, to Rose Management Company, a local real
estate investment company, for $840,000. The net book value of the related land
and building at the time of sale was $3,504,600. In December 1998, the Company
recorded a non-cash impairment loss of $2,664,600 on the building to reflect
the difference between the sales price and the net book value of the property.
INCOME TAXES - The effective income tax rate for the first quarter of fiscal
1999 is zero due to the establishment of a valuation allowance against current
quarter net operating losses incurred.
DISCONTINUED OPERATIONS - All previously recorded discontinued operations were
disposed of in fiscal 1998. Sales applicable to discontinued operations for the
three months ended December 31, 1997 were $17,509,500.
YEAR 2000 - Older computer software programs that use two digits rather than
four digits to identify the year in a date field are a concern with year 2000
approaching. If not corrected, many computer applications may fail to treat
dates intended to represent years in the twenty-first century as such but
instead treat them as still in the twentieth century, potentially resulting in
system failures or miscalculations disruptive of business operations,
including, among other things, an inability to initiate, receive, process,
invoice or otherwise complete normal business activities. These Year 2000
issues affect virtually all companies and organizations.
Through the use of internal personnel and outside consultants, the Company has
performed a detailed review to assess the impact of the Year 2000 issue on its
continuing operations. In connection with this review, the Company conducted an
inventory of IT and non-IT hardware and software, material vendors and
customers, and business processes. Each inventoried item was addressed to
evaluate its risk, to decide whether to remediate or replace, to identify its
priority to the business and to develop a plan for the system.
Plans developed in the assessment phase are being executed in the
implementation phase. Non-compliant IT and non-IT hardware and software are
being remediated or replaced. As of December 1, 1998, the majority of the
Company's IT and non-IT hardware and software utilize Year 2000 software.
Remaining non-compliant hardware and software will be remediated or
9
<PAGE> 10
replaced with Year 2000 software and hardware by spring 1999. Testing, which is
expected to be completed by June 30, 1999, is currently being performed to
ensure compliance. Testing attempts to verify that all systems function
correctly and it extends to all interfaces with key business partners.
During the assessment and testing phase, no significant information technology
projects have been deferred as a result of our efforts on Year 2000.
The Company relies on third party suppliers for raw materials, water,
utilities, transportation and other key services. Interruption of supplier
operations due to Year 2000 issues could affect Company operations, financial
conditions or cash flows. We are now in the process of surveying our vendors in
order to ascertain their ability to continue supplying us with necessary
services and materials. As of January 27, 1999, with 59% (117 out of 198) of
the surveys returned, we have not received any negative responses. All state
that they are, or will be, compliant by mid-1999. In addition to the survey,
contingency plans are being developed. While approaches to reducing risks of
interruption due to supplier failures will vary, options include identification
of alternate suppliers, and utility providers, accumulation of inventory to
assure production capability where feasible or warranted, and establishment of
crisis teams to address unexpected problems. These activities are intended to
provide a means of managing risk, but cannot eliminate the potential for
disruption due to third party failure.
The Company is also dependent upon our customers for sales and cash flow. Year
2000 issues in our customers' operations could result in decreased sales,
decreased cash flows, and increased inventory and receivables. While these
events are possible, we believe our customer base is broad enough to minimize
the effects of a single occurrence. In addition, the majority of the customer
base is not dependent upon equipment that could be affected by the Year 2000
issues. However, steps are currently being taken to monitor the status of our
customers as a means of determining risks and alternatives.
The Company estimates that the total cost to identify and fix Year 2000
problems is approximately $350,000 of which $326,000 has been incurred to date.
The Company's policy is to expense as incurred information system maintenance
and modification costs and to capitalize the cost of any new hardware and
amortize it over the assets' useful lives. All expenses related to Year 2000
problems are being funded through operating cash flows or the existing credit
facility.
LIQUIDITY AND CAPITAL RESOURCES
OPERATING ACTIVITIES- Cash flows from operating activities utilized net cash of
$83,000 for the three months ended December 31, 1998, principally due to the
net loss of $3,283,900 and a decrease in accounts payable of $1,180,800 offset
by the $2,664,600 adjustment associated with the impairment of the Company's
Cleveland, Ohio facility (See Note 4 to the Consolidated Condensed Financial
Statements), a decrease in receivables of $925,400 and a decrease in
inventories of $500,100. The decrease in receivables was due primarily to
$701,200 of lower sales in December versus September and improved collection
efforts in the greater than 120 day
10
<PAGE> 11
category which generated approximately $300,000 during the first fiscal quarter
of 1999. Improvement in production forecasts, utilization of excess ATS
inventories and implementation of a Kanban system for ATS parts primarily
contributed to the decrease in inventories. The Kanban technique is used to pull
products and material through and into the manufacturing process through the use
of a physical signal which identifies points of consumption and replenishment.
Accounts payable decreased by $1,180,800 primarily due to a decrease in
inventory and a continued Company-wide effort to reduce expenses.
INVESTING ACTIVITIES- No funds were utilized for investing activities in the
first quarter of fiscal 1999.
FINANCING ACTIVITIES- Net cash provided by financing activities was $53,200,
which included $84,500 for net borrowings under the credit facility and $31,300
for payment of long term debt.
The Company's credit facility agreement includes, but is not limited to,
various covenants that limit the Company's ability to incur additional
indebtedness, limit compensation to key personnel and transactions with
affiliates, restrict paying dividends, limit book net worth and limit the
ability for capital expenditures. As of December 31, 1998, the Company was not
in compliance with the book net worth covenant due to the non-cash impairment
loss on the Company's Cleveland, Ohio facility (See Note 4 to the Consolidated
Condensed Financial Statements); however, the Company obtained a waiver on this
covenant through December 31, 1998. The credit agreement was amended in January
1999 to adjust the book net worth covenant referred to above.
The Company believes that its current working capital, cash flow generated from
future operations and its existing credit facility will be sufficient to fund
the Company's capital requirements for the foreseeable future.
CAUTIONARY STATEMENT FOR "SAFE HARBOR" PURPOSES UNDER THE PRIVATE SECURITIES
LITIGATION REFORM ACT OF 1995
This report, including Management's Discussion and Analysis of Financial
Condition and Results of Operations contains forward-looking statements within
the meaning of the Federal securities laws. As a general matter,
forward-looking statements are those focused upon future plans, objectives or
performance as opposed to historical items and include statements of
anticipated events or trends and expectations and beliefs relating to matters
not historical in nature, including the statements made in "Net Product Sales"
regarding anticipation of shipping to increase in Asian markets and the
development of a strategy to improve ATS sales growth, "Gross Profit"
pertaining to operational initiatives and the improvement of the gross margin
percentage, and "Year 2000" concerning the impact of costs incurred on the
Company's future operating results, financial condition and cash flows and the
potential impact of suppliers and
11
<PAGE> 12
customers. Such forward-looking statements are subject to uncertainties
including the improvement of sales in the Asian and ATS markets, and the ability
of the Company to continue to implement cost reduction measures. Such
uncertainties are difficult to predict and could cause actual results of the
Company to differ materially from those matters expressed or implied by such
forward-looking statements.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Not applicable.
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
Not applicable.
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
Not applicable.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
Not applicable.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
Not applicable.
ITEM 5. OTHER INFORMATION
On September 14, 1998, the Company received a letter from Nasdaq stating that
the Company's stock had failed to maintain a market value of public float
greater than or equal to $5,000,000 and that continued failure to comply with
the Nasdaq listing requirements would result in the Company's stock being
delisted. Initially, the Company scheduled a meeting with Nasdaq to demonstrate
the Company's compliance with Nasdaq listing requirements; however, because the
Company, as of February 10, 1999, continues to be out of compliance with such
rules, the Company's stock will be delisted from the Nasdaq National Market
effective as of the close of business on February 10, 1999. As of the opening of
business on February 11, 1999, the Company's stock will be traded on the OTC
Bulletin Board under the symbol "HMII." Because the Company's stock will be
delisted from the Nasdaq National Market, it will be necessary for investors to
contact a broker/dealer to process trades.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) INDEX TO EXHIBITS
10.00 Material Contracts Real Estate Sale Agreement and Amendment
to Real Estate Sale Agreement
27.00 Financial Data Schedule
(b) REPORTS ON FORM 8-K
No reports on Form 8-K have been filed during the quarter for which this report
is filed.
12
<PAGE> 13
SIGNATURES
----------
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
HMI INDUSTRIES INC.
-------------------
(Registrant)
Date: FEBRUARY 5, 1999 /s/ Julie A. McGraw
---------------- --------------------------------
Julie A. McGraw
Vice President - Corporate
Controller and Chief Accounting
Officer
13
<PAGE> 1
Exhibit 10.00
REAL ESTATE SALE AGREEMENT
THIS AGREEMENT ("Agreement") is entered into as of this day of 18th day
of December, 1998, between HMI Industries Inc., a Delaware corporation
("Seller"), and Rose Management Company, an Ohio Corporation ("Purchaser").
1. PURCHASE AND SALE. In consideration of their mutual covenants set
forth in this Agreement, Seller agrees to sell to Purchaser and Purchaser agrees
to purchase from Seller, for the Purchase Price (as hereinafter defined) and on
the terms and conditions set forth herein, the following:
(a) All of the land (the "Real Estate") situated in Cuyahoga
County, Ohio, described on Exhibit "A" attached hereto and
made a part hereof, and commonly known as 3631 Perkins
Avenue, Cleveland, Ohio, approximately 4.3 acres (Permanent
Parcel Nos.: 102-38-034, 102-38-035, 102-38-036, 102-38-037,
102-38-043, 102-40-021, 102-40-022, 102-40-023, 102-40-024,
102-40-025, 102-40-026, 102-40-027, 102-40-028, 102-40-030,
102-40-031, 102-40-032, 102-40-033, 102-40-034, 102-40-035,
102-40-036, 102-40-037, 102-37-022, 102-37-023, 102-37-024,
102-37-025, 102-37-027).
(b) All structures, buildings, improvements and fixtures,
including but not limited to, alarm system, main compressor,
backup compressor, associated compressor pipes and hookups,
inventories of spare parts used specifically in connection
with the operation of the Improvements, 3 water tanks,
20,000 gallon exterior water tower, 4,500 gallon inside
pressure tank and 9,000 gallon inside pressure tank located
on the Real Estate ("Improvements").
(c) The personal property owned by Seller described on Exhibit
"B" attached hereto ("Personal Property").
(d) Seller's interest in the leases listed on Exhibit "C", as
amended from time to time, in effect on the date of Closing,
as hereinafter defined (all such leases being sometimes
collectively referred to herein as "Leases").
(e) Seller's interest in the contracts, warranties and permits
listed on Exhibit "D" ("Contracts")
The Real Estate, Improvements, Personal Property and Leases are
sometimes collectively referred to herein as the "Premises".
2. PURCHASE PRICE EARNEST MONEY. The purchase price for the Premises
shall be EIGHT HUNDRED FORTY THOUSAND AND NO/100 DOLLARS ($840,000) ("Purchase
Price"). The Purchase Price shall be payable as follows:
1
<PAGE> 2
(a) $25,000 shall be tendered to Seller in the form of
Purchaser's check made payable to Title Company (as
hereinafter defined) not later than three (3) business days
following the last date on which a party hereto executes
this Agreement ("Effective Date") as earnest money ("Earnest
Money"). The Earnest Money shall be held by Guardian Title
Company, ("Title Company") in accordance with the terms of
this Agreement. The Title Company shall serve as escrow
agent for this transaction subject to its standard
conditions of acceptance of escrow, to the extent they are
not inconsistent with this Agreement. In order to act as
escrow agent hereunder, the Title Company shall furnish
insured closing letters satisfactory to the parties and
their counsel.
(b) $25,000 shall be tendered to Seller in the form of
Purchaser's check made payable to the Title Company upon
satisfaction or waiver of the contingencies set forth in
Section 4 hereof on or before the termination of the Due
Diligence Period (as therein defined) as additional earnest
money (the "Additional Earnest Money"). The Additional
Earnest Money shall be held by the Title Company in
accordance with the terms of this Agreement.
If Purchaser's check for the Earnest Money or Additional
Earnest Money shall fail due collection, Seller, at its
option, may declare this Agreement null, void and of no
force and effect, and may pursue its remedies against the
Purchaser upon said check or in any other manner permitted
by law, such remedies being cumulative.
(c) On or before the Closing Date (as hereinafter defined),
Purchaser shall deposit with the Title Company, in
immediately available funds, the balance of the Purchase
Price.
3. CLOSING.
(a) The consummation of the purchase and sale of the Premises
("Closing" or "Closing Date") shall take place no later than
three (3) days following satisfaction of all of the
contingencies and requirements set forth in the Agreement,
or such other date mutually agreed upon by the parties.
(b) This transaction shall be closed in accordance with this
Agreement. The Purchase Price shall be paid as indicated in
Section 2 above and all documents necessary for the
consummation of this transaction shall be delivered through
Escrow on or prior to the Closing Date. Provided that all
conditions of this Agreement have been satisfied, the Title
Company shall disburse the proceeds of sale on the Closing
Date to Seller and shall cause the Deed to be recorded at
the office of the Cuyahoga County Recorder and shall deliver
to Purchaser the Bill of Sale.
2
<PAGE> 3
(c) At or prior to Closing, Seller shall cause to be delivered
into Escrow the following documents:
(1) A General Warranty Deed (the "Deed") in form
reasonably approved by Purchaser, properly executed
on behalf of Seller, conveying to Purchaser or its
designee, good and marketable title to the Real
Estate and Improvements, free and clear of all liens
and encumbrances whatsoever, except (a) zoning and
building ordinances and restrictions, if any, (b)
legal highways, (c) real estate taxes and
assessments, both general and special, which are a
lien, but not yet due and payable at the time of
transfer, (d) the rights of tenants under Leases,
and (e) easements, restrictions, covenants,
declarations, and rights of way of record approved
by the Purchaser (the "Permitted Exceptions");
(2) A Bill of Sale in the form reasonably approved by
Purchaser, executed by Seller, conveying to
Purchaser the Personal Property;
(3) Duly executed and acknowledged Assignment of Leases
assigning and conveying to Purchaser the landlord's
interest in, to and under the Leases, and containing
an assumption by Purchaser of Seller's obligations
under the Leases from and after the Closing Date all
in the form reasonably approved by Purchaser; and
(4) Originals (or, to the extent originals are not
available, copies) of all Leases.
4. PURCHASER'S CONDITIONS TO CLOSING. In addition to all other
conditions to the completion of the transaction described in this Agreement,
Seller and Purchaser agree that the Closing of this sale and purchase is subject
to the sole satisfaction, approval or waiver by Purchaser of the following
conditions on or before 5:00 PM, Cleveland Time, on that date which is fifteen
(15) days after the Effective Date ("Due Diligence Period"):
(a) Inspection and approval of the physical condition
and use of the Premises, including without
limitation, the availability for access, utility
services, zoning, environmental risks, engineering
and soil conditions. For the purpose of conducting
physical inspections, Seller agrees to provide
Purchaser and its authorized agents reasonable
access to the Premises at all reasonable times
during the Due Diligence Period to inspect portions
of the Premises not readily accessible to the
general public, including without limitation, the
mechanical systems which are part of the Premises.
The right of access granted hereunder is subject to
the rights of tenants under the Leases. Purchaser
hereby agrees to indemnify Seller and to hold
3
<PAGE> 4
Seller, Seller's agents and employees and the
Premises harmless from and against any and all
losses, costs, damages, claims or liabilities
including, but not limited to, mechanic's and
materialmen's liens and attorneys' fees, arising out
of or in connection with Purchaser's access to or
entry upon the Premises under this Section 4(a).
Purchaser's indemnity and hold harmless agreement
pursuant to this Section 4(a) shall survive the
termination or expiration of this Agreement by
Closing or otherwise. Any damage; disturbance or
other disruption of the Premises shall be repaired
and/or placed in the condition existing prior to
Purchaser's disturbance thereof upon completion of
Purchaser's inspection activities.
(b) Inspection and approval of documents and other
written materials in Seller's possession and
control, relating to the ownership of the Premises,
including but not limited to, drawings of the
Improvements, leases, utility (gas, electric, water)
bills for 1997, real estate tax bills for 1997,
permits for construction from the city of Cleveland,
occupancy permit, list of contractors for
construction as well as maintenance, warranties
including the roof, and surveys, ("Seller's
Disclosure Documentation"), all of which shall be
made available to Purchaser at the offices of Seller
at reasonable times for inspection and copying by
Purchaser at Purchaser's expense; provided, however,
that such information supplied or made available to
Purchaser is supplied or made available without
representation or warranty of any kind.
In the event any of the conditions set forth in this Section 4 are not
satisfied or waived by Purchaser within the Due Diligence Period, Purchaser
shall notify Seller and the Title Company in writing of termination of this
Agreement ("Purchaser's Termination Notice") prior to the end of the Due
Diligence Period. Upon receipt of Purchaser's Termination Notice, the Earnest
Money shall be returned to Purchaser by the Title Company, both Seller and
Purchaser shall be released and discharged from all further obligations under
this Agreement, and neither Seller nor Purchaser shall be subject to any claim
by the other for damages of any kind except Purchaser's indemnity and hold
harmless agreement as provided in Section 4(a) of this Agreement. If no
Purchaser's Termination Notice has been served upon Seller and Title Company
within the time provided in this Section 4, all conditions of this Section 4
shall be deemed to have been satisfied or waived, and Purchaser's obligations
to close shall be firm with respect to the conditions of this Section 4. In
addition, Purchaser shall promptly deliver the Additional Earnest Money to the
Title Company as set forth in Section 2(b) above.
Notwithstanding any provision to the contrary contained in this
Section 4, Purchaser may only terminate this Agreement pursuant to this Section
4 with respect to any environmental condition on the Premises if its inspections
or investigations show the environmental condition of the Premises to be
materially more adverse than as shown in the Reports provided to Purchaser
pursuant to Section 6, below. Nothing contained herein shall prevent Purchaser
from exercising its rights to terminate this Agreement pursuant to Section 6 in
connection with its review of the Reports.
4
<PAGE> 5
5. EVIDENCE OF TITLE.
(a) TITLE COMMITMENT. Within five (5) business days following
the Effective Date, Seller shall order a commitment for the
issuance of an ALTA owner's title insurance policy
("Commitment") issued by the Title Company showing the
condition of title to the Premises. If the Commitment
discloses matters which are objectionable to Purchaser,
Purchaser, within ten (10) days following the date on which
Purchaser received the Commitment, shall deliver to Seller
written notice of Purchaser's objections, if any, to such
matters ("Unpermitted Exceptions"). If Purchaser fails to
deliver such written notice or objection to Seller within
the applicable time period, Purchaser shall be deemed to
have waived its right to object to such Unpermitted
Exceptions, which shall thereafter be deemed "Permitted
Exceptions."
In the event that Purchaser shall so object to any such
Unpermitted Exceptions, Seller shall notify Purchaser
within ten (10) business days following the date of
Purchaser's notice of such objections that either (a) the
Unpermitted Exceptions have been, or will be at or prior to
Closing, removed from the Commitment or are or will be
insured over by the Title Company pursuant to an
endorsement to the Commitment (satisfactory to purchaser
and its lender) and in such event, if reasonably required
to allow the parties to prepare for Closing, the Closing
Date shall be deferred to a date mutually agreed upon by
the parties, or (b) Seller has failed to arrange to have
the Unpermitted Exceptions removed or insured over by the
Title Company. If Seller elects option (b) or fails to
notify Purchaser that it has arranged to have the
Unpermitted Exceptions removed or insured over within said
ten (10) business day period, Purchaser shall, within ten
(10) days after the end of said 10-day period, elect either
to terminate this Agreement by delivering written notice
thereof within said ten (10) day period, in which event the
Earnest Money (and Additional Earnest Money, if any) shall
be returned to Purchaser as Purchaser's sole remedy
hereunder, or be deemed to have accepted title as it then
is, in which event all Unpermitted Exceptions not removed
from the Commitment will thenceforth be deemed Permitted
Exceptions, and if reasonably required to allow the parties
to prepare for Closing, the Closing Date shall be deferred
to a date mutually agreed upon by the parties.
On the Closing Date, the Title Company shall issue an
owner's title insurance policy in the amount of the
purchase price, with the standard exceptions deleted,
but with such additional endorsements as Purchaser may
order and pay for, subject only to the Permitted
Exceptions (the "Title Policy"). It is understood by the
parties that in the event that Purchaser does not order a
Survey or that the Title Company, after reviewing the
Survey, will not delete the standard
5
<PAGE> 6
exception related to items disclosed by an accurate and
complete survey of the Premises, that such survey exception
shall not be required to be deleted from the Title Policy.
(b) SURVEY. Within the Due Diligence Period, Purchaser may
order a current ALTA survey of the Real Estate and
Improvements prepared by a registered Ohio land surveyor
(the "Survey"). If the Survey shows any material
encroachments over a building, setback or property line, a
prohibited encroachment of a material nature over any
easement or any other material matter which is
objectionable to Purchaser (or its lender) and which is not
a Permitted Exception (collectively, "Survey Defects"),
Purchaser, within the Due Diligence Period, may deliver to
Seller written notice of those Survey Defects to which it
objects, or Purchaser shall be deemed to have waived any
right to such objection. Seller shall have ten (10)
business days ("Survey Cure Period") from the date of
receipt of Purchaser's notice of objections, if any, to
cure the Survey Defects or to cause the Title Company to
agree to insure over such Survey Defects by appropriate
endorsements to the Commitment. If Seller fails to do so,
Purchaser shall, within ten (10) days after the end of the
Survey Cure Period, elect either to terminate this
Agreement by delivering written notice thereof within said
10-day period, in which event the Earnest Money (and
Additional Earnest Money, if any) shall be returned to
Purchaser as Purchaser's sole remedy hereunder, or be
deemed to have accepted the Survey as is and, if reasonably
required to allow the parties to prepare for Closing, the
Closing Date shall be deferred to a date mutually agreed
upon by the parties.
6. ENVIRONMENTAL REPORTS. Within three (3) days after the Effective
Date, Seller shall cause any environmental reports in Seller's possession
pertaining to the Real Estate ("Reports") to be delivered to Purchaser.
Purchaser agrees to treat the Reports as strictly confidential and to disclose
the Reports only to those consultants, advisers and lenders necessary in
connection with this transaction. In the event this transaction fails to close,
Purchaser shall return all copies of the Reports to Seller. Purchaser
acknowledges that Seller makes no warranties or representations regarding the
adequacy, accuracy or completeness of the Reports and Purchaser shall have no
claim against Seller based upon the Reports. Purchaser further acknowledges that
pursuant to Section 4 of this Agreement, it has full opportunity to perform such
environmental investigations as Purchaser deems appropriate.
Purchaser shall have the right to terminate this Agreement by written
notice to Seller and the Title Company ("Purchaser's Environmental Termination
Notice") within five (5) business days following Purchaser's receipt of the
Reports. Upon timely receipt of Purchaser's Environmental Termination Notice,
the Earnest Money and Additional Earnest Money, if any, shall be returned to
Purchaser by the Title Company, both Seller and Purchaser shall be released and
discharged from all further obligations under this Agreement, and neither Seller
nor Purchaser shall be subject to any claim by the other for damages of any kind
except Purchaser's indemnity and hold harmless agreement as provided in Section
4(a) of this Agreement. If no Purchaser's Environment Termination Notice has
been served upon Seller and the Title Company within the time provided in
6
<PAGE> 7
this Section 6, all environmental conditions shall be deemed to have been
satisfied or waived (except as provided to the contrary in Section 4), and
Purchaser's obligation to close shall be firm with respect to the conditions of
this Section 6.
7. SELLER'S EXPRESS REPRESENTATIONS. Seller represents and warrants to
Purchaser that:
(a) Seller is a corporation duly formed and validly existing
under the laws of the State of Delaware and has the full
power and authority to enter into this Agreement and to
carry out the transaction contemplated hereby to be carried
out by it. All persons signing this Agreement and/or any
documents and instruments in connection herewith on behalf
of Seller have full power and authority to do so. All
necessary action has been taken to duly authorize the
execution and delivery of this Agreement and all documents
and instruments contemplated by this Agreement, and the
performance by Seller of the covenants and obligations to
be performed and carried out by it hereunder.
(b) The execution, delivery and performance by Seller of this
Agreement and such other instruments and documents to be
executed and delivered in connection herewith by Seller
does not, and will not, result in any violation of, or
conflict with or constitute a default under, any provision
of any agreement of Seller or any mortgage, deed of trust,
indenture, lease, security agreement, or other instrument
or agreement to which Seller is a party, or any judgment,
writ, decree, order, injunction, rule or governmental
regulation to which Seller is subject.
(c) Seller has not received any notice of the violation of any
zoning, building or other law, ordinance, regulation or
directive of any governmental or quasi governmental
authority or authorities having jurisdiction over the
Premises.
8. PURCHASER'S EXPRESS REPRESENTATIONS. Purchaser represents and
warrants to Seller that:
(a) Purchaser will have examined and investigated to
Purchaser's full satisfaction the physical condition of the
Premises and Seller's Disclosure Documentation during the
Due Diligence Period set forth in Section 4;
(b) Except as set forth herein, neither Seller nor any real
estate broker, agent or other representative of Seller has
made any representations or warranties whatsoever regarding
this transaction or any fact relating thereto, including,
without limitation, any representations or warranties
concerning the physical condition of the Premises, access,
7
<PAGE> 8
zoning laws, environmental matters, utilities, or any other
matter affecting the Premises or the use thereof:
(c) If Purchaser has not exercised its right to terminate this
Agreement, and except for Seller's express representations
set forth in Section 7 hereof, Purchaser shall accept the
Premises "AS IS" and "WHERE IS" at Closing;
(d) Except for Seller's express representations set forth in
Section 7 hereof, Purchaser has not relied and will not
rely on, and Seller is not liable for or bound by, any
express or implied warranties, guaranties, statements,
representations or information pertaining to the Premises
or relating thereto made or furnished by Seller, or any
real estate broker or agent representing or purporting to
represent Seller, to whomever made or given, directly or
indirectly, verbally or in writing, unless specifically set
forth herein;
(e) Purchaser is a corporation duly formed and validly existing
under the laws of the State of Ohio and has the full power
and authority to enter into this Agreement and to carry out
the transaction contemplated hereby to be carried out by
it. All persons signing this Agreement and/or any documents
and instruments in connection herewith on behalf of
Purchaser have full power and authority to do so. All
necessary action has been taken to duly authorize the
execution and delivery of this Agreement and all documents
and instruments contemplated by this Agreement, and the
performance by Purchaser of the covenants and obligations
to be performed and carried out by it hereunder.
(f) The execution, delivery and performance by Purchaser of
this Agreement and such other instruments and documents to
be executed and delivered in connection herewith by
Purchaser does not, and will not, result in any violation
of, or conflict with or constitute a default under, any
provision of any agreement of Purchaser or any mortgage,
deed of trust, indenture, lease, security agreement, or
other instrument or agreement to which Purchaser is a
party, or any judgment, writ, decree, order, injunction,
rule or governmental regulation to which Purchaser is
subject.
9. SELLER'S COVENANTS. Between the date of the execution of this
Agreement and the Closing, Seller shall:
(a) Maintain the Premises in substantially the same condition
as the same are now maintained, ordinary wear and tear
excepted; and
(b) Maintain all casualty, liability and hazard insurance
currently in force with respect to the Premises.
8
<PAGE> 9
10. PRORATIONS. The following adjustments to the Purchase Price paid
hereunder shall be made between Seller and Purchaser and shall be prorated (as
applicable) on a per diem basis as of the Closing Date:
(a) General real estate taxes and assessments not yet due and
payable shall be prorated as of the Closing Date on the
basis of the last available tax duplicate.
(b) rents and other charges payable by tenants under the Leases
shall be prorated as of the Closing Date.
Except as otherwise expressly provided in this Agreement, all
prorations provided for herein shall be final. The obligations of Seller and
Purchaser pursuant to this Section 10 shall survive the Closing.
11. CLOSING COSTS. Seller shall pay through escrow (i) the real estate
conveyance fee; (ii) one-half of the cost of the title examination and the
premium of the Title Policy; (iii) one-half (1/2) of the escrow fee; (iv) the
Broker's commission pursuant to Section 28 hereof; and (v) prorations due to
Purchaser.
Purchaser shall pay through escrow (i) all recording fees and costs
incident to the filing of the Deed; (ii) the fees and costs of any inspections
conducted by Purchaser pursuant to Section 4; (iii) one-half(1/2) of the escrow
fee; (iv) one-half (1/2) of the cost of the title examination and the premium of
the Title Policy; (v) the cost of any special title endorsements required by
Purchaser; (vi) the cost of any Survey of the Premises; (vii) all costs in
connection with Purchaser's financing, if any; and (viii) all prorations due to
Seller.
If this transaction is terminated by Purchaser prior to the expiration
of the Due Diligence Period, all escrow costs billed by the Title Company shall
be divided equally between Seller and Purchaser. If the transaction is
terminated by either party on account of default by the other, the defaulting
party shall pay all escrow costs billed by the Title Company. In the event this
transaction shall close as provided in this Agreement, escrow costs shall be
divided equally between Seller and Purchaser.
12. RISK OF LOSS. Seller shall bear all risk of loss with respect to
the Premises until title is transferred to Purchaser in accordance with this
Agreement and thereafter all risk of loss shall be the Purchaser's.
Notwithstanding the foregoing, in the event of damage to the Premises by fire or
other casualty prior to the Closing Date, repair of which would cost less than
an amount equal to ten (10%) percent of the Purchase Price, Purchaser shall not
have the right to terminate its obligations under this Agreement by reason
thereof, but Seller shall have the right to elect to either repair and restore
the Premises or to assign and transfer to Purchaser on the Closing Date all of
Seller's right, title and interest in and to all insurance proceeds paid or
payable to Seller on account of such fire or casualty. Seller shall promptly
notify Purchaser in writing of any such fire or other casualty and Seller's
determination of the cost to repair the damage caused thereby. In the event of
damage to the Premises by fire or other casualty prior to the Closing Date,
repair of which would cost in excess of an amount equal to ten (10%) percent of
the Purchase Price, then this Agreement may be terminated at the option of
Purchaser, which option shall be exercised, if at all, by Purchaser's written
notice thereof to Seller within five (5) business days after Purchaser receives
9
<PAGE> 10
written notice of such fire or other casualty and Seller's determination of the
amount of such damages, and upon the exercise of such option by Purchaser this
Agreement shall become null and void, the Earnest Money and Additional Earnest
Money, if any, shall be returned to Purchaser, and neither party shall have any
further liability or obligations hereunder. If Purchaser does not so elect to
terminate, then Seller shall assign and transfer to Purchaser on the Closing
Date all of Seller's right, title and interest in and to all insurance proceeds
paid or payable to Seller on account of such fire or casualty.
13. CONDEMNATION. In the event between the date of this Agreement and
the Closing Date, any condemnation or eminent domain proceedings are initiated
which will result in the taking of any part of the Real Estate or the
Improvements or the taking or closing of any right of access to the Premises
Purchaser may:
(a) terminate this Agreement by written notice to Seller; or
(b) proceed with the Closing, in which event Seller shall
assign to Purchaser all of Seller's right, title and
interest in and to any award made in connection with such
condemnation or eminent domain proceedings.
Seller shall immediately notify Purchaser in writing of the commencement or
occurrence of any condemnation or eminent domain proceedings if such proceedings
would result in the taking of any Real Estate or Improvements or the taking or
closing of any right of access to the Premises. Purchaser shall then notify
Seller, within ten (10) days of Purchaser's receipt of Seller's notice, whether
Purchaser elects to exercise its rights under subparagraph (a) or subparagraph
(b) of this Section. Closing shall be delayed, if necessary, until Purchaser
makes such election, provided that in no event shall the Closing occur later
than five (5) days after the 10-day period provided for above.
14. DEFAULT. In the event that Purchaser shall default in the
performance of any covenant or agreement herein contained, then Seller shall
have the right to terminate this Agreement and demand and recover the Earnest
Money and Additional Earnest Money, if any, as liquidated damages. In the event
that Seller shall default in the performance of any covenant or agreement herein
contained, Purchaser shall have the right to: (i) as its sole remedy declare
this Agreement terminated, demand and recover the Earnest Money and Additional
Earnest Money, if any, or (ii) as its sole remedy pursue specific performance of
this Agreement. Notwithstanding anything to the contrary contained in this
Paragraph 14, no party shall be deemed in default in the performance of any
covenant or agreement herein contained, unless the non-defaulting party has
provided to such defaulting party notice of the default, and the non-defaulting
party has not cured the default within ten (10) days of such notice.
15. LEFT BLANK INTENTIONALLY.
10
<PAGE> 11
16. NOTICE. All notices required or permitted hereunder shall be in
writing and shall be served on the parties at the following address:
If to Seller:
HMI Industries, Inc.
3631 Perkins Avenue
Cleveland, Ohio 44114
Attention: Robert M. Benedict, Jr.
With copies to:
Squire, Sanders & Dempsey L.L.P.
4900 Key Tower
127 Public Square
Cleveland, Ohio 44114-1304
Attention: Richard J. Rudolph, Esq.
If to Purchaser:
Rose Management Company
4300 Superior Avenue
Cleveland, Ohio 44103
Attention: Rose Strauss
With copies to:
Jeffrey G. Wyner
Conway, Marken, Wyner, Kurant & Kern
Pepper Pike Place
30195 Chagrin Blvd. Suite 300
Cleveland, Ohio 44124
Any such notices shall be either (a) sent by U.S. Mail, in which case notice
shall be deemed delivered three (3) business days after deposit, postage prepaid
in the U.S. Mail, (b) sent by personal delivery, in which case it shall be
deemed delivered upon receipt, or (c) sent by facsimile, in which case notice
shall be deemed delivered upon confirmed receipt which confirmation can be
issued by the sender's facsimile machine. All parties shall have the right from
time to time to designate by written notice to all other parties any other
address or place where such notice, demand, or request be addressed.
17. TIME OF ESSENCE. Time is of the essence of this Agreement.
18. GOVERNING LAW. The validity, meaning and effect of this Agreement
shall be determined in accordance with the laws of the State of Ohio.
11
<PAGE> 12
19. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
20. CAPTIONS. The captions in this agreement are inserted for
convenience of reference and in no way define, describe or limit the scope or
intent of this Agreement or any of the provisions hereof.
21. ASSIGNABILITY. Purchaser may not assign its rights under this
Agreement without the prior written consent of Seller, which consent shall not
be unreasonably withheld. No assignment of this Agreement shall operate to
release Purchaser from any liability hereunder.
22. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective legal representatives,
successors and assigns.
23. MODIFICATIONS; WAIVER. No waiver, modification, amendment,
discharge or change of this Agreement shall be valid unless the same is in
writing and signed by the party against which the enforcement of such
modification, waiver, amendment, discharge or change is sought.
24. ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties relating to the transactions contemplated hereby and all
prior or contemporaneous agreements, understandings, representations or
statements, oral or written, are superseded hereby.
25. PARTIAL INVALIDITY. Any provision of this Agreement which is
unenforceable or invalid or the inclusion of which will affect the validity,
legality or enforcement of this Agreement shall be of no effect, but all the
remaining provisions of this Agreement shall remain in full force and effect.
26. NO PERSONAL LIABILITY OF OFFICERS OR DIRECTORS. No member, partner,
individual officer or director or representative of Seller or Purchaser shall
have any personal liability under this Agreement or any document executed in
connection with the transactions contemplated in this Agreement.
27. NO THIRD PARTY RIGHTS. Nothing in this Agreement, express or
implied, is intended to confer upon any persons other than the parties hereto
and their respective successors and assigns, any rights or remedies under or by
reason of this Agreement.
28. BROKER. Seller and Purchaser represent each to the other that each
has had no dealings with any broker, finder or other party concerning
Purchaser's purchase of the Premises except Grubb & Ellis and C.B. Richard Ellis
(the "Brokers") to whom Seller shall pay a commission of $42,000 upon the
Closing Date if, and only if; this transaction closes in accordance with the
terms and conditions stated herein. Seller and Purchaser each hereby agree to
indemnify and hold each other harmless from all loss, cost, damage or expense
(including reasonable attorneys' fees) incurred as a result of any claim arising
out of the acts of the indemnifying party (or others on its behalf) for a
commission, finder's fee or similar compensation made by any broker, finder or
any party who claims to have dealt with such party except Brokers. The
representations and warranties contained in this Section 28 shall survive the
Closing. No joinder of any Brokers shall be necessary for any amendment or
termination of this Agreement. In the event that this
12
<PAGE> 13
transaction does not close for any reason, no Broker shall have any right to or
interest in the Earnest Money or Additional Earnest Money.
29 TIME PERIODS. All time periods contained herein shall refer to
calendar days except where express reference is made to business days. Business
days shall be defined to mean all days except Saturdays, Sundays and legal
holidays. Should any time period specified in this Agreement expire on a
non-business day, such time period shall be extended to the next succeeding
business day.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year set forth below.
SELLER
HMI INDUSTRIES, INC.
By: /s/ Robert M. Benedict, Jr.
------------------------------------------
Its: Exec. VP, CFO & Treasurer
-----------------------------------------
Date: 12/18/98
----------------------------------------
PURCHASER:
ROSE MANAGEMENT COMPANY
By: /s/ Rose Strauss
------------------------------------------
Its: President
-----------------------------------------
Date: 12/18/98
----------------------------------------
Accepted this ___ day of___, 1998,
By Guardian Title Company
By:
----------------------------------
----------------------------
Escrow Officer
13
<PAGE> 14
EXHIBIT "A"
REAL PROPERTY
<PAGE> 15
Parcel No. 1:
Situated in the City of Cleveland, County of Cuyahoga and State of Ohio and
known as being all of Sublots Nos. 175 to 180, both inclusive, in J.H. Webster,
Assignee, and Mabel Weddell's Subdivision of a part of Original Ten Acre Lots
Nos. 89, 90 and 91 as shown by the recorded plat in Volume 13 of Maps, Page 36
of Cuyahoga County Records, together forming a parcel of land Bounded and
described as follows: Beginning on the Easterly line of East 36th Street, 60
feet in width, at the Southwesterly corner of said Sublot No. 175; Course No. 1:
thence North 0 degrees 04'16" East along said Easterly line of East 36th Street,
186.04 feet to the Northwesterly corner of said Sublot No. 180; Course No. 2
thence South 89 degrees 59'35" East along the Northerly line of said Sublot
No.180, 130.09 feet to a point in the Westerly line of East 36th Place, 14 feet
in width; Course No. 3: thence South 0 degrees 04'47" West along said Westerly
line of East 36th Place, 186.03 feet to the Southeasterly corner of said Sublot
No.175; Course No.4: thence North 89 degrees 59'52" West along the Southerly
line of said Subdivision No. 175, 130.07 feet to the place of beginning, be the
same more or less, but subject to all legal highways.
Parcel No.2:
Situated in the City of Cleveland, County of Cuyahoga and State of Ohio and
known as being all of Sublots Nos. 223 to 236, both inclusive, in J.H. Webster,
Assignee, and Mabel Weddell's Subdivision of a part of Original Ten Acre Lots
Nos. 89, 90 and 91 as shown by the recorded plat in Volume 13 of Maps, Page 36
of Cuyahoga County Records, together forming a parcel of land bounded and
described as follows: Beginning on the Northerly line of Perkins Avenue N.E., 60
feet in width, at its intersection with the Westerly line of East 37th Street,
34 feet in width; Course No.1: thence due West along said Northerly line of
Perkins Avenue, N.E., 130.05 feet to a point in the Easterly line of East 36th
Place, 14 feet in width; Course No.2: thence North 0 degrees 04'47" East along
said Easterly line of East 36th Place, 438.75 feet to the Northwesterly corner
of said Sublot No. 223; Course No.3: thence South 89 degrees 59'20" East along
the Northerly line of said Sublot No. 223, 130.12 feet to a point in the
aforementioned westerly line of East 37th Street; Course No.4: thence South 0
degrees 05' 18" West along said Westerly line of East 37th Street, 438.73 feet
to the place of beginning, be the same more or less, but subject to all legal
highways.
Parcel No. 3:
Situated in the City of Cleveland, County of Cuyahoga and State of Ohio and
known as being all of Sublots No. 8 to 29, both inclusive, 32 to 33, both
inclusive, and part of Sublot No.39 in the F.C. Goodman Allotment of part of
Original Ten Acre Lots Nos. 92 and 93 as shown by the recorded plat in Volume 32
of Maps, Page 11 of Cuyahoga County Records, part of East 37th Place, 34 feet in
width, now vacated, as shown by the Vacation Plat records in Volume 188 of Maps,
Page 11 of Cuyahoga County Records, and by the Vacation Plat recorded in Volume
202 of Maps, Page 60 of Cuyahoga County Records, together forming a parcel of
land bounded and described as follows: Beginning on the Northerly line of
Perkins Avenue N.E., 70 feet in width at its intersection with the Easterly line
of East 37th Street, 34 feet in width; Course No.1: thence North 0 degrees
05'18" East along said easterly line of East 37th Street, 416.18 feet to a point
in the Southerly line of Dayton Place N.E., 30 feet in width; Course No.2:
thence South 89 degrees 59'26" East along said Southerly line of Dayton Place
N.E., 244.73 feet to a point in the Westerly line of East 38th Street, 38 feet
in width; Course No.3: thence South 0 degrees 05'36" West along said Westerly
line of East 38th Street, 239.14 feet to the Northeasterly corner of Parcel Two
of land conveyed to Dyment Limited by deed dated December 7, 1978 and recorded
in Volume 14884, Page 977 of Cuyahoga County Records, Course No.4: thence North
89 degrees 59'19" West along the Northerly line of Parcel Two of land so
conveyed to Dyment Limited, 70.07 feet to the Northwesterly corner thereof,
being also in the Easterly line of aforementioned Sublot No.26; Course No.5:
thence South 0 degrees 05'31" West along said Easterly line of said Sublot No.
26 and the easterly lines of said Sublots Nos. 27 and 29, 127.05 feet to a point
in the aforementioned Northerly line of Perkins Avenue N.E., Course No.6: thence
North 89 degrees 59'16" West along said northerly line of Perkins Avenue N.E.,
174.63 feet to the place of beginning. be the same more or less, but subject to
all legal highways.
SEE CONTINUATION FOR ADDITIONAL PARCELS
<PAGE> 16
EXHIBIT A CONTINUED
Permanent Parcel No. 102-37-022
Situated in the City of Cleveland, County of Cuyahoga and State of Ohio: and
known as being Sub Lot No.220 in J.H. Webster, Assignee and Mabel Weddell's
Subdivision of part of Original Ten Acre Lots Nos. 89, 90, and 91, as shown by
the recorded plat in Volume 13 of Maps, page 36 of Cuyahoga County Records, and
being 30 feet front on the Westerly side of East 37th Street, (formerly Buckeye
Street) and extending back of equal width 130 feet, as appears by said plat, be
the same more or less, but subject to all legal highways.
Permanent Parcel No.102-37-023
Situated in the City of Cleveland, County of Cuyahoga and State of Ohio: and
known as being all of Sublot No.221 in J.H. Webster, assignee, and Mabel
Weddell's Subdivision of part of Original Ten Acre Lots Nos. 89, 90, and 91, as
shown by the recorded plat of said subdivision in Volume 13 of maps, Page 36 of
Cuyahoga County Records, and being 30 feet front on the Westerly side of East
37th Street and extending back between parallel lines 130 feet as appears by
said plat, be the same more or less, but subject to all legal highways.
Permanent Parcel No.102-37-024
Situated in the City of Cleveland, County of Cuyahoga and State of Ohio: and
known as being Sublot No.222 in J.H. Webster, assignee, and Mabel Weddell's
Subdivision of part of Original Ten Acre lot Nos. 89, 90 and 91, as shown by the
recorded plat in Volume 13 of Maps, Page 36 of Cuyahoga County Records, and
being 30 feet front on the westerly side of East 37th Street and extending back
of equal width 130 feet to an alley as appears by said plat, be the same more or
less, but subject to all legal highways.
Permanent Parcel No. 102-37-025
Situated in the City of Cleveland, County of Cuyahoga and State of Ohio: and
known as being Sublot No. 186 in J.H. Webster, Assignee, and Mabel Weddell's
Subdivision of a part of Ten Acre Lots Numbers 89,90 and 91 in said City, being
30 feet front on the Easterly side of East 36th Street (formerly Douglas Street)
and extending back of equal width 130 feet deep to an alley in the rear, as per
plat of said subdivision recorded in Volume 13 of Maps, Page 36, in the office
of the recorder of said county, be the same more or less but subject to all
legal highways.
Permanent Parcel No. 102-37-027
Situated in the city of Cleveland, County of Cuyahoga and State of Ohio: and
known as being Sublot No. 188 in J.H. Webster, Assignee, and Mabel Weddell's
Subdivision of part of Original Ten Acre Lot Nos. 89, 90 and 91, as shown by the
recorded plat in Volume 13 of Maps, Page 36 of Cuyahoga County Records, and
being 30 feet front on the Easterly side of East 36th Street, N.E. (Formerly
Douglas Street) and extending back between parallel lines 130 feet deep, as
appears by said plat, be the same more or less, but subject to all legal
highways.
<PAGE> 17
EXHIBIT "B"
PERSONAL PROPERTY
NONE
<PAGE> 18
EXHIBIT "C"
LEASES
1. Option Agreement between HMI Industries, Inc. and SprintCom, Inc. dated
September 25, 1997 and PCS Site Agreement between HMI Industries, Inc.
and SprintCom, Inc. dated February 12, 1998.
2. Oral lease with Olgierd Lindan for approximately 200 square feet of
space at $250 per month, payable quarterly.
<PAGE> 19
EXHIBIT "D"
CONTRACTS
1. Service Agreement between HMI Industries, Inc. and United States
Elevator Corporation dated February 23, 1996.
2. Contract between UtiliCorp Energy Solutions and HMI Industries, Inc.
dated August 29, 1998.
<PAGE> 20
AMENDMENT TO REAL ESTATE SALE AGREEMENT
---------------------------------------
HMI INDUSTRIES, INC. ("Seller") and ROSE MANAGEMENT COMPANY
("Purchaser") hereby amend their Real Estate Sale Agreement ("Agreement") dated
December 18, 1998 covering the property located at 3631 Perkins Avenue,
Cleveland, Ohio (the "Premises") as follows:
1. All real property taxes and assessments, both general and special
(hereinafter, "Taxes") that are delinquent and any interest and penalties
thereon, and first half 1998 Taxes and any interest and penalties thereon, shall
be charged to Seller through escrow at Closing. The only Taxes to which the
Premises shall be subject at Closing are those that are then a lien but not yet
due and payable. In lieu of any proration of second half 1998 and first half
1999 Taxes based on the last available tax duplicate as provided in Section
10(a) of the Agreement, the Escrow Agent shall estimate the amount of second
half 1998 Taxes and first half 1999 Taxes by applying the applicable tax rate,
taken from the most recent tax duplicate, to the purchase price ($840,000). The
amount of second half 1998 Taxes so estimated by the Escrow Agent shall be
charged to Seller and credited to Purchaser through escrow at Closing. The
Escrow Agent shall also charge to Seller and credit to Purchaser through escrow
at Closing a prorated amount with respect to first half 1999 Taxes, calculated
in an identical fashion as second half 1998 Taxes, upon a per diem basis. Upon
receipt of the real property tax bill for second half 1998 Taxes, Purchaser
shall forward a copy thereof to Seller, and Seller shall promptly pay over to
Purchaser outside of Escrow any excess of the amount of such billing over the
amount previously credited through escrow to Purchaser with respect to estimated
second half 1998 Taxes. Upon receipt of the real property tax bill for first
half 1999 Taxes, Purchaser shall forward a copy thereof to Seller, and Seller
shall promptly pay over to Purchaser, outside of Escrow, the excess of the daily
amount indicated by such billing times the number of days included in the 1999
proration over the estimated first half of 1999 Taxes previously credited to
Purchaser through Escrow.
2. Seller shall retain all rights in and to its pending real estate tax
complaint for tax years 1997 and 1998 ("the 1997 case"), and the parties agree
that any real estate tax refunds and any real estate tax deficiencies relating
to the period prior to transfer of title and all expenses associated therewith
shall be Seller's property and/or responsibility as the case may be. Purchaser
shall not file a real estate tax complaint for tax year 1998. However, Purchaser
shall have the right to file its own Complaint as to the Assessment of Real
Property for tax year 1999. Should Purchaser file a decrease complaint for tax
year 1999 and realize any refund as a result thereof, after taking into account
all of its costs and expenses in pursuing any such proceedings, it shall pay
over to Seller the ratable share of such net benefit pertaining to the period in
January 1999 prior to the date of closing.
3. The parties agree that Purchaser shall have two (2) business days
after its receipt of the survey which it has ordered from Garrett & Associates,
Surveyors within which to review such survey and its rights upon such review
shall be as provided in the Agreement even though other approved periods
provided therein have already passed.
4. Title shall be conveyed to MidCity, Ltd., an Ohio limited liability
company, whose tax mailing address will be 4300 Superior Avenue, Cleveland, Ohio
44103.
<PAGE> 21
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the day and year set forth below.
"SELLER"
HMI INDUSTRIES, INC.
By: /s/ Robert M. Benedict, Jr.
------------------------------------------
Its: Exec. VP, CFO & Treasurer
-----------------------------------------
Date: 1/11/99
----------------------------------------
PURCHASER:
ROSE MANAGEMENT COMPANY
By: /s/ Rose Strauss
------------------------------------------
Its: President
-----------------------------------------
Date: 1/11/99
----------------------------------------
Accepted this 12th day of January, 1999
by Guardian Title Company
By: /s/ Mary R. Porter
- --------------------------------
Mary R. Porter, Escrow Agent
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> SEP-30-1999
<PERIOD-START> OCT-01-1998
<PERIOD-END> DEC-31-1998
<CASH> 21,604
<SECURITIES> 0
<RECEIVABLES> 4,349,628
<ALLOWANCES> 915,974
<INVENTORY> 3,863,457
<CURRENT-ASSETS> 9,566,662
<PP&E> 6,287,342
<DEPRECIATION> 4,112,537
<TOTAL-ASSETS> 20,264,901
<CURRENT-LIABILITIES> 8,467,792
<BONDS> 0
0
0
<COMMON> 5,368,556
<OTHER-SE> 5,623,352
<TOTAL-LIABILITY-AND-EQUITY> 20,264,901
<SALES> 9,171,973
<TOTAL-REVENUES> 9,287,631
<CGS> 6,556,405
<TOTAL-COSTS> 9,878,643
<OTHER-EXPENSES> 2,664,574
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 28,323
<INCOME-PRETAX> (3,283,909)
<INCOME-TAX> 0
<INCOME-CONTINUING> (3,283,909)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (3,283,909)
<EPS-PRIMARY> (0.63)
<EPS-DILUTED> (0.63)
</TABLE>
