EXHIBIT 10.1
SETTLEMENT AGREEMENT
This Settlement Agreement (the "Agreement") is entered into as of July
18, 2006, by and between LOGISTICAL SUPPORT, LLC, a California limited liability
company (as successor by merger between it and Hill Aerospace & Defense, LLC)
("Logistical" or "Debtor"), and TRIUMPH ENGINEERED SOLUTIONS, INC., a Delaware
corporation (as successor in interest to Triumph Components-Arizona, Inc.)
("Triumph") (collectively, the "Parties").
RECITALS
WHEREAS, Debtor and Triumph are parties to the Settlement Agreement
(5/19/04) (the "2004 Settlement Agreement") as well as two Security Agreements
of that same date (the "2004 Security Agreements").
WHEREAS, Debtor acknowledge that Triumph holds a perfected security
interest under the 2004 Security Agreements in cash payments to Debtor defined
as "Receivables" in the 2004 Settlement Agreement and that Debtor failed to
remit those "Receivables" to Triumph as required by the 2004 Settlement
Agreement.
WHEREAS, disputes have arisen between Debtor and Triumph with respect
to the Parties' performance under the 2004 Settlement Agreement and the 2004
Security Agreements. Those disputes are the subject of an arbitration proceeding
commenced by Debtor and pending before the American Arbitration Association, No.
76 181 00277 04 MAGE (the "Arbitration") and a lawsuit commenced by Triumph and
currently pending in California Superior Court, Los Angeles County, No. BC
326067 (the "Litigation").
WHEREAS, by this Agreement, including the Recitals, the Parties intend
to adopt, by way of compromise, a full and final settlement that releases and
resolves all rights, obligations, and liabilities of the parties one to another.
AGREEMENT
In consideration of the promises and mutual covenants contained herein,
and for other good and valuable consideration, the receipt and adequacy of which
are acknowledged, the Parties agree:
A. THE RECITALS.
1. The Recitals are incorporated by this reference.
B. PAYMENT BY DEBTOR TO TRIUMPH.
1. Not later than 3:00 pm (ET) on the first business day following
the Parties' execution of this Agreement, Debtor will pay Triumph by wire
transfer $76,000.
2. Not later than 3:00 pm (ET) on the 15th day of each of the months
indicated in the following table, Debtor will pay to Triumph by wire transfer
the amount shown. If the 15th day of a month is not a business day, the payment
will be due no later than 3:00 pm (ET) on the business day immediately preceding
the 15th:
----------------------------------------------------------
August 2006 $40,000 June 2007 $65,000
September 2006 $40,000 July 2007 $40,000
October 2006 $40,000 August 2007 $40,000
November 2006 $40,000 September 2007 $40,000
December 2006 $65,000 October 2007 $40,000
January 2007 $40,000 November 2007 $40,000
February 2007 $40,000 December 2007 $65,000
March 2007 $40,000 January 2008 $40,000
April 2007 $40,000 February 2008 $40,000
May 2007 $40,000 March 2008 $39,000
----------------------------------------------------------
3. The foregoing schedule results in payments to Triumph totaling
$950,000. The Parties intend that Debtor may reduce the total amount paid to
Triumph by making early payments. Should Debtor's payments to Triumph by 3:00 pm
(ET) on January 2, 2007, total at least $450,000, Triumph will waive $25,000 of
the total owed to it under this Agreement; this discount will apply to Debtor's
final payment. Should Debtor's payments to Triumph by 3:00 pm (ET) on July 2,
2007 total $900,000, Triumph will waive any remaining payments owed to it under
this Agreement.
4. Time is of the essence in making any payment required or
permitted by this Agreement.
5. The instructions for wire transfer payments to Triumph are:
Name Of Bank: PNC Bank, N. A.
Pittsburgh, Pennsylvania
ABA Number: 000000000
Account Number: 1005590155
Account Name: Triumph Components - Arizona, Inc.
6. Within five business days of final payment by Debtor of the
amounts owed under this Agreement, the Parties will stipulate to dismiss the
Litigation with prejudice, each side to bear its own costs and attorneys' fees.
Also by that time, counsel for Triumph shall certify that he destroyed all
copies of the stipulated judgment discussed below.
C. SECURITY INTEREST IN DEBTOR'S ASSETS.
1. Debtor represents to Triumph that the accounts receivable of the
former Hill Aerospace & Defense, LLC are subject to a security interest
benefiting National Loan Investors. Debtor also represents to Triumph that it
lacks any unencumbered assets that may be pledged as security for the obligation
owed to Triumph or to replace Triumph's security interests under the 2004
Security Agreements.
2. As a condition to the effectiveness of this Agreement, Debtor
agrees to execute all necessary UCC financing statements and other documents to
evidence that Triumph has a security interest in all of Debtor's assets securing
the obligations of this Agreement (the "UCC Filing"). Triumph acknowledges that
it may not be the primary secured party.
5
3. The security agreement creating the security interest benefiting
Triumph will be in the form attached as Exhibit 1.
D. DEFAULT AND STIPULATED JUDGMENT.
1. Any of the following constitute "Default" under this section:
a. Debtor's failure to pay any amount owed to Triumph by the
date and time specified in this Agreement.
b. Inaccuracy in Debtor's representation it lacks any
unencumbered assets that may be pledged as security for the obligation owed to
Triumph or to replace Triumph's security interests under the 2004 Security
Agreements.
c. Debtor's failure to provide any documents or information
necessary to effect the UCC Filing.
2. Debtor will have an opportunity to cure a default after notice
from Triumph or its counsel. This period to cure a Default expires 24 hours
after confirmed facsimile delivery by the sender's facsimile machine of the
notice of default, except for item D(1)(c) above, which has a 48 hour cure
period. Time is of the essence.
3. Upon Debtor's uncured Default, the entire $950,000 owed to
Triumph under this Agreement (less any payments made by Debtor) plus any
penalties permitted by this Agreement shall be immediately due and owing, and
Triumph may file a stipulation effectuating the entry of judgment against
Debtor. Triumph will do so by filing a declaration attaching the stipulation and
form of judgment, reciting the Default. Triumph may apply ex parte to the Court
for entry of judgment for all sums owed to Triumph, and the declaration from any
representative of Triumph will be conclusive evidence of the amount owed to
Triumph, including any fees and costs associated with obtaining the judgment.
Debtor waives any and all rights to notice or hearing before entry of such
judgment or proceedings to execute on such judgment. Debtor waives any and all
defenses and appeal from any judgment so entered.
4. Triumph's counsel shall hold in trust the stipulation and form of
judgment, not to be filed except upon Default. The stipulation and accompanying
form of judgment shall be in the form attached as Exhibit 2.
E. RELEASES.
1. In consideration of the mutual promises and obligations contained
herein, Debtor together with its affiliates, members, officers, employees,
principals, agents, predecessors, successors, assigns, trustees, and all others
acting on their behalf hereby fully and forever releases, extinguishes and
discharges Triumph and its parents, subsidiaries, divisions, affiliates,
successors, assigns, trustees, directors, officers, employees, agents, and all
others acting on its behalf, from any and all claims relating in any way to the
2004 Settlement Agreement and the contracts referenced in the 2004 Settlement
Agreement.
2. In consideration of the mutual promises and obligations contained
herein, Triumph together with its parents, subsidiaries, divisions, affiliates,
successors, assigns, trustees, directors, officers, employees, agents, and all
others acting on its behalf hereby fully and forever releases, extinguishes, and
discharges Debtor and their affiliates, members, officers, employees,
principals, agents, successors, assigns, trustees and all others acting on their
behalf, from any and all claims relating in any way to the 2004 Settlement
Agreement and the contracts referenced in the 2004 Settlement Agreement.
6
3. The Parties expressly waive any and all rights and benefits
conferred upon them under the provisions of California Civil Code ss. 1542,
which provides:
A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing
the release, which if known by him must have materially affected his
settlement with the debtor.
4. Upon executing this Agreement, the Parties shall take timely
steps to withdraw their respective claims in the Arbitration, with prejudice,
each side to bear its own fees and costs.
5. Upon executing this Agreement, the Parties will timely notify the
Court before which the Litigation is pending of this settlement. The Parties
will request that the Court maintain jurisdiction over the Litigation pending
complete performance of the Parties' obligations under this Agreement. Should
the Court decline to maintain jurisdiction, the Parties will stipulate to
dismiss the Litigation without prejudice, each side to bear its own attorneys'
fees and costs.
6. Upon the Parties' execution of this Agreement, each Party will be
discharged from any remaining obligations under, or contracts referenced in, the
2004 Settlement Agreement.
F. REPRESENTATIONS.
1. Logistical represents to Triumph that (a) it is a California
limited liability company, duly organized, validly existing and in good standing
under the laws of the State of California, (b) it has full power and authority
to create, deliver and perform its obligations hereunder, and the officer
executing this Agreement for Logistical has authority to act for Logistical, and
(c) this Agreement and the transactions contemplated herein constitute valid and
binding obligations of Logistical, enforceable against Logistical in accordance
with their terms,
2. Logistical represents that it is the successor entity following a
merger between Logistical and Hill Aerospace & Defense, LLC ("Hill"), effective
March 31, 2006. Logistical is bound by and affirms all obligations of Logistical
or Hill owed to Triumph. No other entity or person possesses any right or
interest in Hill's claims that are the subject of this Settlement Agreement.
3. Debtor represents to Triumph that it is not contemplating seeking
bankruptcy protection within 91 days of the date of this Agreement.
4. Triumph represents to Debtor that (a) it is a Delaware
corporation, duly organized, validly existing in good standing under the laws of
that state, (b) it has full power and authority to create, deliver, and perform
its obligation hereunder, and the officer executing this Agreement for Triumph
has authority to act for Triumph, and (c) this Agreement and the transactions
contemplated herein constitute valid and binding obligations of Triumph,
enforceable against Triumph in accordance with their terms.
5. The Parties acknowledge and agree that all representations
hereunder, including but not limited to those set forth in this Section, shall
be deemed to be material and relied upon by the Parties with or to whom the same
were made.
6. Should a Party become aware that any representation by that Party
contained in any portion of this Agreement no longer holds true, that Party
shall provide the other with written notice thereof. If such a notice is
provided by Debtor, Triumph shall have two (2) business days from its receipt
thereof to terminate this Agreement. If such a notice is provided by Triumph,
Debtor shall have two (2) business days from its receipt thereof to terminate
this Agreement.
7
G. NOTICES.
1. Any notice to be provided to any Party hereunder, shall be
delivered by registered mail, by hand-delivery, by express delivery (e.g.,
Federal Express) or by facsimile (but only by facsimile if followed immediately
by delivery through one of the other measures). Any notice that does not comply
with the requirements of this provision is of no effect.
2. Any notice to be provided to Triumph shall be directed to:
Triumph Group, Inc.
0000 Xxxxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxx, Xxxxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxx, Esq.
Xxxxx Xxxx LLP
Xxx Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000
3. Any notice to be provided to Debtor shall be directed to:
Xxxxx X. Xxxxx, Esq.
Xxxxx Xxxx LLP
Xxx Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxx, Esq.
Xxxxxxxxx & Bass
00000 Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Fax No.: (000) 000-0000
H. MISCELLANEOUS.
1. This Agreement contains the entire agreement between the Parties
related to the subject matter hereof and supersedes all prior and
contemporaneous agreements, arrangements, negotiations and understandings
between the Parties. There are no other agreements, understandings, statements,
promises, or inducements, oral or otherwise. Other than as set forth in this
Agreement, no Party made or relied upon any representations, warranties,
covenants or conditions, express or implied, whether by statute or otherwise.
THIS PROVISION PRECLUDES ANY CLAIM OF FRAUDULENT INDUCEMENT BASED ON ALLEGED
REPRESENTATIONS NOT EXPLICITLY CONTAINED IN THIS AGREEMENT.
8
2. No waiver of any term, provision or condition of this Agreement,
whether by conduct or otherwise, in any one or more instances, shall be deemed
to be or shall constitute a waiver of any other provision hereof, whether or not
similar, nor shall such a waiver constitute a continuing waiver, and no waiver
shall be binding unless executed in writing by the Party making the waiver.
3. This Agreement may be altered or amended only by an instrument in
writing signed by each of the Parties, and such alteration or amendment shall be
binding upon the Parties, and all other persons or entities.
4. The invalidity or unenforceability of any particular provision of
this Agreement shall not affect the other provisions hereof, and this Agreement
shall be construed in all respects as if such invalid or unenforceable
provisions were omitted herefrom.
5. This Agreement shall be construed in accordance with the laws of
the State of Arizona.
6. Should legal action become necessary to enforce this Agreement or
any of its terms, the prevailing Party shall be awarded its reasonable
attorneys' fees and all costs of litigation.
7. The Parties expressly agree that Debtor will bring any action
relating to this Agreement in Maricopa County, Arizona. At its discretion,
Triumph may bring an action relating to this Agreement in Maricopa County,
Arizona, or Los Angeles County, California, though Triumph only may file the
stipulated judgment in Los Angeles County, California. The Parties consent to
personal jurisdiction and the propriety of venue in those forums as needed to
give effect to each Party's ability to bring an action under this provision. Any
claim arising out of this Agreement shall be brought within one year of the date
on which the complaining party gained actual knowledge of the facts giving rise
to the dispute or shall be deemed to be forever waived.
8. Except for the obligations to pay money, no Party shall be liable
to the other for non-performance of this Agreement if the non-performance is
caused by events or conditions beyond that Party's reasonable control, such as
acts of God, acts of civil or military authorities, governmental priorities,
fires, strikes, floods, epidemics, war or riot.
9. This Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be deemed an original, and
such counterparts together shall constitute one and the same instrument.
The remainder of this page intentionally left blank
9
IN WITNESS WHEREOF, the Parties caused this Agreement to be duly
executed as of the date first set forth herein.
LOGISTICAL SUPPORT, LLC
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxx
---------------------------------------
Title: Chief Executive Officer
---------------------------------------
TRIUMPH ENGINEERED SOLUTIONS, INC.
By: /s/ Xxxx X. Xxxxxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxxxxx
---------------------------------------
Title: Vice President & Treasurer
---------------------------------------
