COTTRELL & LO L AN,. PPA Attorn ey .at Law
704 NORTHKING STREET, SUITE 500
P.O.BOX1031 . WILMINGTON DELAWARE 19899
Telephone Number; (302) 658-6400, TelecoperMmbe,; (302) 658-9836 . Toll Free. (800) 645-6401 . WRITER 'S EMAIL :
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BRANCH OFFICES.:. 19 WESTAVENEIE P.0, BOX 301' WO DSTOf T N,NJ08098 110 .WESTROAJJ SUITE 245. TOWSON, MD 21204
I 20.17SPR1NG GARDEN STREET P IILADELPHIA, PA .191.30-3804 .
February
12, 2004.
CERTIFIED'MAIL
RETURN RECEIPT REQUESTED Lisa Lackovitch
Claims Adjuster
Argonaut Group 9201 Forest Hill Avenue
Suite 200
Richmond, VA 23235
RE :
Claim No . 25945 DOL 9/15/03
Insured :
Claimants :
Dear Ms .
Don's Hydraulics Fieldale Farms
6652
Our File No .
ackovitch:
represents your insured . regarding` the above .' As you are aware, Don's Hydraulics entered into referenced clam
This firm a contract with Fieldale Farms to manufacture a hydraulic power unit for Fieldale Farms The suction hoses were defective and caused all of the pumps to fail . The hoses were manufactured by Tipco Technologies, Inc . for Truck Tech, Inc . Don Cathall, owner and President of Don's Hydraulics, purchased the hoses fromTruck c ,. Tech, Inc . As a result of the defective hoses, twenty pumps were destroyed and 4,200 gallons of hydraulic oil were contaminated. Further, Don's Hydraulics had to repair the hydraulic power unit . Don's expended $92,,16S .52 to perform the repairs . Don's was forced to put the majority of these expenses on two credits which has resulted in interests charges of $9 .22 and $5 .75 per day on each card. A breakdown of these expenses is attached hereto. Further, Fieldale Farms was forced to shut down . the plant during
Case 1:04-cv-01275-KAJ
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Filed 06/08/2005
Page 2 of 9
Page 2 Lisa Lackovitch Don's Hydraulics February 12, 2004
the repair . Fieldale submitted an invoice to Don's Hydraulics in the amount of $100,774 .50, a copy of which is attached . Finally, Don's Hydraulics has received an invoice from Livingston & Haven for the amount still owed for the replacement of the defective pumps "in the amount of $15,357 .74 . Livingston & Haven has demanded is payment in full within 90 days . A copy of this correspondence attached. As you can see, time is of the essence . Don's Hydraulics made its initial demand to you over 4 months ago, at which time Don's Hydraulics provided you with materials for your review and inspection . Please return those materials. Don's Hydraulics demands full payment of these claims under Policy No . GL123393 issued within ten (10) days of the date of receipt of this letter . I have been.. authorized by my clie.nt to institute a lawsuit if these claims are not paid with in the time limit .
Case 1:04-cv-01275-KAJ
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Case 1:04-cv-01275-KAJ Document 45-5 Filed 06/08/2005 Page 4 of 9
$ 26 .36 380.00 Sept 23, 2003
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(Pion Master Card APR 15 .97% $21, 071,28 /$9 .22 interest per-day (Pd.on Master Card @APR 13 .99% $15,000 .00/$5.75 interest per day (Interest Beginning 09/20/03 ) Pump inspection meeting 10/31/03 in Georgia 5-Days $! 000 .00 1650 Miles @:85 Motel, Meals and phone 5,0 .00 $1,402.50 614.72
Case 1:04-cv-01275-KAJ
4!Sri IP CrW'
Document 45-5
Filed 06/08/2005
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Case 1:04-cv-01275-KAJ
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Mr. Don Cathell Don's Hydraulics Route 113, Box 2230 Georgetown, DE 1 .9947 Dear Don: This letter is to inform you the pumps returned for warranty inspection and consideration have been. repaired to factory specifications. These pumps have been fully tested and are ready for shipment. As stated earlier, due to the large, outstanding balance on your account, L & H cannot return the pumps until satisfactory arrangements have been .made. Because L & H is willing to make every effort to continue to support Don's Hydraulics in this and future projects, we would be willing to ship the pumps currently being held in Charlotte under the following conditions: 1. You agree to pay in full all outstanding balances held with I, & Fli vd.thin the next ninety days. 2, You sign and return the "Unconditional Guaranty>" document provided. 3 . You sign, have notarized and return the "run and Final Release of All Claims" document provided. Our intention in offering this arrangement is to help facilitate your final payment from Fieldale Farms, thus allowing you pay your balance in Ml
David Drummond Regional. Sales Manager L & H Technologies
Case 1:04-cv-01275-KAJ
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UNCONDITIONAL GUARANTY bv Doll This Guaranty is executed and &livened as of (the -Guarantor ). Cathell . hav int.:, an adclress it to 1 ..&l Technologies . Inc d/bja/ Livingston & laven havmg itn address at 1 1(116 Illvd . . 'harlottu, North Carolina 28273 (the -Flolder'') For good and valtuthle consideration . the Guarantor hereby unconditionally to (he Holdet tmd its successors and itssigns payment of the balance due on Iioldcrs' invoice number 2067O2 . dated September 29, 2003 Of not less than 1;15 .357 .74 (the "Int,lebtedness"). This Guaranty is i t continuing and unconditional guar,mtv performance and not vif collectinn.
Of
pa VMCnl and
Guarantor itgtees that, if and to the extent the,, f receives tiny ptlyn ' ll on account of itnv of the Indebtedness (whether from Pulchasers,Guittantor or a third party obligor or from the sale ot other disposition of any collateral) and such pItyment or any pad Ihcreof is subscq ucntly invalidated, declared to he fraudulent or preferential . set aside i'n required to he repaid to a trustee, receiver or any other pitrty under any act, sidle or federal law . common law or equitable cause ., then the pad of the Indebtedness intended to be satisfied shall he revived and continued in full force and effect as if said payment had not heen made The Piregoing provisions or thi s paragraph shall sure Olt; termination of revocation of this Guaranty. The Guarantor expressly W,tive ti-t : (a)nnt ice of acceptance ()I' this guaranty: (b)ptesentrnent and demand for payment or collection of the Indebtedness ; (c)protest and notice of dishonor or of default to the Guarantor of to any other party with respect to the Indebtedness or with respect to any security therefore : (d)all other notices to which Me Goatantor might otherwise he entitled ; (c)demand under this Guaranty, and (1)until such lime as the provision of this Guaranty are no longer in effect . any right to subrogation against the Holder and any right to subrogation, reimbursement . and indemnity against any propert y or Whet -.,eCttt ,;CR'itlg at My (into as collateral for any or all of (he ollIlgations helel-ty gunninteed. Guarantor :shall pity all or Holders' reasonable expenses and costs incurred in eofot .cing any rights or obligations under this Guaranty including, but not limited to, reasonable arbitration, attorneys' and experts' fees and expenses, whether incurred withotit commencement of a suit . in an : trial, arbitration or in any appellate or bankruptcy proceeding. Neither this Guarani) nor any term hereof may he terminated, amended, supplemented, waived, released , or modified nrally, but only by an instrument in writing
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signed by the party against which the enf'orccmcnt of the termination, ,tr endmcn(. supplement, waiver, release, or modification is sought . 1Ills Cittitrttltty shall ill all Icspeck he deemed he illade in, and governed by. , construe and enforced in accordance with Tizc laws of. the State of North Carolina without regard to principles cif' conflict of laws . IC
any kkrt11 of this Guaranty or any obligation there under shalt he held to h4 inv
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FULL AND FINAL RELEASE OF ALL CLAMS KNOW ALL MEN BY THESE PRESENTS: That the undersigned being of lawful age, for the sole consideration of delivers of BoschRessroth hydraulic -puma) repaired . under warranty, receipt of which is hereby aaknowledged, do/does hereby and for my/our/he heirs, executors, administrators, successors and assigns release, acquit and forever discharge L&B Teehnolo*s, Inc.&WedLivingston&Haven and its agents, servants, successors, heirs, executors administrators and all other persons, firms, corporations, associations or partnerships of and from any and all claims, actions, causes of action, dern .ands, rights, damages, cost, loss of service, expenses and compensation whatsoever, which the undersigned now has/have or which hereafter may accrue on account of or in anyway grow out of any and all known and unknown, foreseen and uaforeseen bodily injury, death, or property damage and the consequences thereof resulting or to result from the events surrounding the startup and subsequent failure of hydraulic system(s) provided by Don's Hydraulics to Fieldale Farms in GaineavilkI p-A, during the month of SetitesOer, 2003, It is understood and agreed that this settlement is the compromise of a doubtful and disputed claim, and that the delivery of the repaired pumps is not to be construed as an admission Of liability on the part of the party or parties hereby released, and that said releases deny liability thereof and intend merely to avoid litigation and buy their peace. The undersigned hereby declare(s) and represent(s) that in making this Release it it understood and agreed, that the undersigned tely(ies) wholly upon the undersigned's judgement, belief and knowledge of the nature, extent, affect and duratioe of said damages and liability thereof and is made without reliance upon any statement or ttpresentadon of the party or parties hereby released or their representative& The undersigned further declare(s) arid represent(s) that no promise, inducement or agreement not herein expressed has been made to the undersigned, and that this Release contains the entire agreement between the parties hereto, and that the terms of this Release are contractual arid not a mere recital. THE UNDERSIGNED HAS READ THE FOREGOING RELEASE AND FULLY UNDERSTANDS IT. Signed, sealed and delivered thie day of , 20
CAUTION . READ BEFORE SIGNING BELOW X Witness State of County of ' On this day of , 20 before me personally appeared .R, to me known to be the person(s) named herein and who executed the foregoing Release and acknowledged to me that voluntariiv executed same.
Don Cathell, Owner.
Don's Hydraulics
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