As filed with the Securities and Exchange Commission on April __, 1998
Registration No. 33-89230-NY
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST EFFECTIVE AMENDMENT NO. 2 TO
FORM SB-2
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
USA BRIDGE CONSTRUCTION OF N.Y., INC.
(Exact Name of Registrant as Specified in Charter)
New York 1700 11-3032277
(State of Incorporation) Primary Standard Industrial (I.R.S. Employer
Classification Code Number Identification No.)
53-09 97th Place
Corona, New York 11368
(718) 699-0100
(Address and Telephone Number of Principal Executive Offices and Principal
Place of Business)
Joseph M. Polito, President
53-09 97th Place
Corona, New York 11368
(718) 699-0100
(Name, Address, and Telephone Number of Agent for Service)
Copies to:
David S. Klarman
Klarman & Associates
2303 Camino Ramon, Suite 200
San Ramon, California 94583
(925) 327-6200
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, please check the following box and list the Securities
Act registration number of the earlier effective registration statement for the
same offering. [X]
If delivery of a prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended the
Registrant certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form SB-2 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in Corona, New York on the 8th day of April 1998.
USA BRIDGE CONSTRUCTION OF N.Y., INC.
By: /s/ Joseph M. Polito
Joseph M. Polito
President
Pursuant to the requirements of the Securities Act of 1933 as amended, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Joseph M. Polito President and Director 04/08/98
Joseph M. Polito Chief Executive Officer Date
/s/ Ronald J. Polito Secretary and Director 04/08/98
Ronald J. Polito Date
/s/ Steven J. Polito Treasurer 04/08/98
Steven J. Polito Date
/s/ Marvin Weinstein Director 04/08/98
Marvin Weinstein Date
</TABLE>
Exhibit 10.25
Agreements, dated November 1997, by and between
the Company and The Iron Workers
Locals 40, 361 & 417 Joint
Security Funds in connection with
the EklecCo project.
<PAGE>
AGREEMENT
AGREEMENT made this _____ day of November, 1997, by and between US BRIDGE
OF NY, INC. (AUS BRIDGE@) and THE IRON WORKERS LOCALS 40, 361 & 417 JOINT
SECURITY FUNDS (Athe FUNDS@);
WHEREAS, US BRIDGE freely admits that it is indebted to the FUNDS in an
amount of approximately One Million Seven Hundred Fifty Thousand Dollars,
($1,750,000.00), the exact amount of such indebtedness to be determined by an
audit as hereinafter described, on account of work performed by Iron Workers in
the geographical jurisdiction of LOCAL UNION NO. 417, INTERNATIONAL ASSOCIATION
OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, AFL-CIO at the Nyack Mall
(Palisades Center) in Nyack, New York (the APROJECT@) during the year 1997 and
up to and including October 8, 1997 or thereabouts; and
WHEREAS, the Parties are cognizant of US BRIDGE=s position that US BRIDGE=S
aforesaid indebtedness was incurred as a result of a contractual dispute between
US BRIDGE and the owner of the said project, Nyack Mall (Palisades Center)
Jobsite, Eklec Co., Inc., (Athe OWNER@), which led to the cancellation of US
BRIDGE=s contract with the OWNER on or about October 8, 1997; and WHEREAS, US
BRIDGE has filed a lien against the subject jobsite property in the amount of
Thirteen Million, Six Hundred Forty Thousand, Seven Hundred Forty-Seven Dollars
($13,640,747.00) with the County Clerk of the County of Rockland, State of New
York, (hereinafter the ALIEN@) and, intends to institute an action to
foreclosure on the lien at the earliest possible time; and
WHEREAS, US BRIDGE affirmatively represents that the OWNER is holding a
contractual retainage of sums due and owing to US BRIDGE for work performed at
the jobsite, the amount of said retainage is approximated to be between One
Million One Hundred Thousand Dollars ($1,100,000.00) and One Million Five
Hundred Thousand Dollars ($1,500,000.00), and which retainage amount is over and
above and in addition to its claims for additional sums due from the OWNER for
additional, other and Aextra@ work performed by US BRIDGE at the jobsite; and
WHEREAS, it is US BRIDGE=s intention that its indebtedness to the FUNDS be
resolved, in full, as expeditiously as that can be accomplished, a desire shared
by the FUNDS; and
WHEREAS, the Parties agree that their joint desire to have US BRIDGE=s
indebtedness to the FUNDS satisfied in full as expeditiously as possible would
be best effectuated without resort to protracted contractual arbitration and or
litigation, but would be furthered by the legal recognition of the validity of
the FUNDS= claim against US BRIDGE, which would enable the FUNDS, among other
remedies available to said FUNDS, to independently pursue collection of this
indebtedness independent of US BRIDGE
NOW, THEREFORE, IT IS AGREED between the Parties that:
1. US BRIDGE will cooperate in an immediate audit of books and records of
US BRIDGE by the FUNDS= auditors, for the period dating since the last regular
audit by such auditors, which audit will, among other things, determine the
amount due and owing to the FUNDS for work performed by Iron Workers employed by
US BRIDGE at the Nyack Mall (Palisades Center) Project in Nyack, New York,
(hereinafter, the AIndebtedness@);
2. US BRIDGE will simultaneously herewith execute an unconditional
assignment of any contractual retainage being held by the OWNER of monies due
and owing to US BRIDGE for work performed at the Nyack Mall (Palisades Center)
Project, such assigned being limited to the extent of the FUNDS= claim against
US BRIDGE;
<PAGE>
3. US BRIDGE will immediately execute an unconditional assignment of a
portion of its Mechanic=s Lien filed with the County Clerk of the County of
Rockland, State of New York against the subject jobsite in the amount of
Thirteen Million, Six Hundred Forty Thousand, Seven Hundred Forty-Seven Dollars
($13,640,747.00) as well as all underlying causes of action US BRIDGE intends to
assert in an action to foreclose such Mechanic=s Lien, such assignment being
limited to the amount of the Indebtedness as determined by the aforesaid audit,
subject only to the prior payment of legal fees, costs and expenses incurred by
US BRIDGE in the prosecution of such action out of any monies recovered in such
foreclosure action;
4. US BRIDGE agrees to immediately execute an unconditional Confession of
Judgment in the amount of the Indebtedness to the FUNDS as revealed by the audit
referred to in Paragraph 1 above; and
5. In consideration of the FUNDS= forbearance from the filing and execution
of said Confession of Judgment against US BRIDGE described in Paragraph 4 above,
US BRIDGE agrees to a payment schedule as follows which shall be strictly
adhered to until all amounts of the said Indebtedness to the FUNDS, including
interest on any unpaid balances of 9.5%, running from the date of the aforesaid
audit, the costs of the audit and reimbursement of legal fees reasonably
incurred by the FUNDS in the collection of such Indebtedness from any source
whatsoever: $75,000.00 due and payable on January 1, 1998; and
At least $25,000.00 due and payable on the first day of every month,
commencing March 1, 1998, until such time as the Indebtedness described in the
Confession of Judgment, with interest thereon at the rate of 9.5% running from
the date of the audit, and the reimbursement to the FUNDS of any legal fees
reasonably incurred by the FUNDS in the collection of such Indebtedness from any
source whatsoever is accomplished;
6. It is clearly understood between the Parties that in the event that US
BRIDGE shall default in any payment of the payment schedule set forth above, the
FUNDS shall have the right, on ten (10) days written notice, to immediately file
and execute upon the Confession of Judgment described above against US BRIDGE.
7. In consideration of all of the foregoing, and conditioned on complete
compliance with the terms set forth hereunder by US BRIDGE, the FUNDS agree, for
the duration of such continued compliance herewith by US BRIDGE, to forbear from
the institution of any legal action whatsoever against US BRIDGE upon the
Indebtedness set forth and acknowledged by US BRIDGE herein.
8. It is understood that the amount to be paid by US BRIDGE shall be
reduced by the amount of any recovery by the FUNDS from the OWNER or the amount
received from any other source. The aforesaid assignment of lien and the
aforesaid assignment of retainage are not duplicative, the amount of each being
limited solely to the amount of the Indebtedness and the amount of one is
reduced by any recovery on the other or otherwise.
US BRIDGE OF NY, INC.
By:________________________
Joseph Polito, President
IRON WORKERS LOCALS 40, 361
& 417 JOINT SECURITY FUNDS
BY THE CO-CHAIRMAN
- ---------------------------
MARVIN WEINSTEIN
- --------------------------
EDWARD WALSH
- ---------------------------
RAYMOND ZINSER
<PAGE>
NOTICE OF ASSIGNMENT OF MECHANIC=S LIEN
1. Name of Assignor: U.S. BRIDGE of NY, INC.
53-09 97TH Place
Corona, New York
2. Name of Assignee: LOCALS 40, 361 & 417
JOINT SECURITY FUNDS
451 Park Avenue South
New York, New York
3. Date of Assignment: November 13, 1997
Date Assignment Terminates: November 13, 1999
4. Amount of Assignment: $1,750,000.00.
5. County Where Property Located: Rockland County
6. The Assignment is for that portion of the Assignor=s mechanics lien and
contract rights which account for unpaid benefit contributions to the Assignee
as well as additional costs for interest, attorneys fees, and the costs of an
audit.
7. Location of Property: 9 Cemetery Lane
West Nyack, New York
and/or
10 Cemetery Lane
West Nyack, New York
a/k/a Palisades Power Mall
a/k/a Map 89, Block A, Lot 4.1 and/or
Map 106, Block A, Lot 46
ASSIGNOR ASSIGNEE
- ---------------------------- -----------------------------
U.S. BRIDGE of NY, INC. JOINT SECURITY FUNDS
By: Joseph Polito, By: Edward Walsh,
President Trustee
Sworn to before me this Sworn to before me this
day of November, 1997. day of November, 1997.
- ------------------------- --------------------------
NOTARY PUBLIC NOTARY PUBLIC
<PAGE>
ASSIGNMENT OF MECHANICS LIEN
AND ASSIGNMENT OF OTHER RIGHTS
WHEREAS, U.S. BRIDGE OF NY, INC. (AU.S. BRIDGE@) located at 53-09 97th
Plaza, Queens, New York, and the IRON WORKERS LOCALS 40, 361 & 417 JOINT
SECURITY FUNDS (AJOINT SECURITY FUNDS@ or AFUNDS@) located at 451 Park Avenue
South, New York, New York, have entered into an Agreement (Exhibit AA@)
providing for inter alia, an audit of U.S. BRIDGE=S books and records to
determine the precise amounts due and owing to the JOINT SECURITY FUNDS from
U.S. BRIDGE for unpaid benefit contributions for work performed at the Nyack
Mall (Palisades Center) project situated in Rockland County; and
WHEREAS, the parties to this Assignment agree that the amount due and owing
is approximately One Million Seven Hundred Fifty Thousand Dollars
($1,750,000.00); and
WHEREAS, U.S. BRIDGE has filed a Notice of Mechanic=s Lien with the
Rockland County Clerk on or about October 14, 1997 in the amount of Thirteen
Million Dollars ($13,640,747.00), a copy of which is annexed hereto as Exhibit
AB@, which amount includes monies due and owing to the JOINT SECURITY FUNDS for
unpaid benefit contributions;
NOW THEREFORE, IT IS AGREED by and between U.S. BRIDGE and the JOINT
SECURITY FUNDS that:
1. U.S. BRIDGE hereby assigns to the JOINT SECURITY FUNDS pursuant to Lien
Law '14, that portion of its mechanic=s lien which accounts for unpaid benefit
contributions due and owing to the JOINT SECURITY FUNDS, now determined to be
One Million Seven Hundred Fifty Thousand Dollars ($1,750,000.00), subject to
amendment to reflect the amount actually due as determined by the aforesaid
audit.
2. U.S. BRIDGE hereby assigns to the JOINT SECURITY FUNDS that portion of
its mechanic=s lien which accounts for other damages sustained by the JOINT
SECURITY FUNDS, including but not limited to, attorneys= fees, interest, and the
costs of the above-referenced audit.
3. U.S. BRIDGE hereby assigns to the JOINT SECURITY FUNDS any and all
rights, claims, and/or causes of action it intends to or could assert in an
action to foreclose on the above-referenced mechanic=s lien or in any other
action which U.S. BRIDGE could maintain against the OWNER for sums claimed to be
due and owing to U.S. BRIDGE by the Owner to the extent only of the determined
indebtedness of U.S. BRIDGE to the JONT SECURITY FUNDS.
4. Nothing herein shall be construed as a waiver of any right and/or claim
the JOINT SECURITY FUNDS has or may have as against U.S. BRIDGE except to the
extent of any amount recovered by the FUNDS based upon this assignment, and the
amount of this assignment, shall be reduced by the amount which may be otherwise
received, paid to or recovered by the FUNDS.
Dated: November 18, 1997
New York, New York
U.S. BRIDGE OF NY, INC. Sworn to before me this
day of November, 1997.
By:________________________________ _________________________________
JOSEPH POLITO, PRESIDENT NOTARY PUBLIC
JOINT SECURITY FUNDS
By:____________________________ By:____________________________
MARVIN WEINSTEIN EDWARD WALSH
Sworn to before me this Sworn to before me this
day of November, 1997. day of November, 1997.
----------------------------- ---------------------------
NOTARY PUBLIC NOTARY PUBLIC
By:____________________________
RAYMOND ZINSER
Sworn to before me this
day of November, 1997.
-----------------------------
NOTARY PUBLIC
<PAGE>
ASSIGNMENT OF RETAINAGE AGREEMENT
FOR GOOD AND VALUABLE CONSIDERATION, receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. U.S. BRIDGE of N.Y., INC., (the AAssignor@) hereby assigns to the LOCALS
40, 361 AND 417 JOINT SECURITY FUNDS (the AFUNDS@ or AAssignee@) so much of the
retainage currently being held or to be held by EklecCo (the AOwner@ or
AObligor@) to which the Assignor is entitled in connection with its Contract #
PC-38, and any modifications, amendments and/or change orders thereto, which
retainage is now or will become due. Said retainage is assigned to the FUNDS to
satisfy, in part, the Assignor s obligations to the FUNDS for employee benefit
contributions accrued in connection with the work performed by Local Union 417
Iron Workers at the Palisades Center Project for U.S. Bridge of N.Y., Inc.
2. The Assignor hereby authorizes the Obligor to pay to the FUNDS out of
the retainage due or to become due to the Assignor, up to the amount which is
due to the FUNDS.
3. The FUNDS agree that they will provide an executed affidavit and waiver
of lien to the Owner upon receipt of a certified check for any amounts received
by the terms of this agreement in the amount received. If payment is made other
than by certified funds, the affidavit and waiver will be provided upon
clearance of the check by overnight mail.
4. The FUNDS agree that they will copy the Assignor on all correspondence
dealing with payments to the FUNDS.
Dated: November 18, 1997
New York, New York
U.S. BRIDGE OF N.Y., INC. Sworn to before me this
day of November, 1997
By:
Joseph Polito, President NOTARY PUBLIC
Exhibit 23.01
Consent of Scarano & Tomaro, P.C.
<PAGE>
April 6, 1998
USA Bridge Construction of N.Y., Inc.
53-09 97th Place
Corona, NY 11368
We hereby consent to the use of our name "as experts", in the "Summary Financial
Data" section and the use of our opinion dated October 4, 1997 for USA Bridge
Construction of N.Y., Inc., to be included in the Post Effective Amendment No. 2
to Form SB-2 Registration Statement being filed for USA Bridge of Construction
of N.Y., Inc.
Very truly yours,
/s/ Scarano & Tomaro, P.C.
Scarano & Tomaro, P.C.
Syosset, New York
