EXHIBIT 10.123
SETTLEMENT AGREEMENT
--------------------
This Settlement Agreement ("Agreement") is executed and effective on the
date indicated below, and it is by and between Torch Energy Marketing, Inc.
("TEMI"), Nuevo Liquids, Inc. ("Nuevo"), LaTex Resources, Inc. ("LaTex
Resources"), LaTex Petroleum Corporation ("LaTex Petroleum"), Panda Resources,
Inc. ("Panda"), Xxxxxx Xxxxxx ("Xxxxxx"), and Xxxxxx Xxxxxx & Associates
("Xxxxxx Xxxxxx").
WITNESSETH:
WHEREAS, on July 16, 1993, Nuevo and Panda executed a Stock Purchase
Agreement, under which Nuevo purchased the stock of Richfield Natural Gas, Inc.
from Panda, and LaTex Resources guaranteed Panda's obligations to Nuevo; and
WHEREAS, on July 26, 1993, TEMI and LaTex Resources executed a Stock
Purchase Agreement, under which TEMI purchased the stock of Panda from LaTex
Resources; and
WHEREAS, on October 10, 1994, Nuevo sued LaTex Resources and LaTex
Petroleum for a breach of contract and fraud in connection with the Stock
Purchase Agreement, originally in the 000xx Xxxxxxxx Xxxxxxxx Xxxxx xx Xxxxxx
Xxxxxx, Xxxxx under Cause No. 94-049944, which was subsequently removed to the
United States District Court for the Southern District of Texas, Houston
Division, under civil action number H-95-0028 ("Nuevo case"); and
WHEREAS, on October 13, 1994, TEMI sued LaTex Resources and LaTex
Petroleum for breach of contract and fraud in connection with the Stock Purchase
Agreement, in the 270th Judicial District Court of Xxxxxx County, Texas, under
Cause No. 94-050945, which was subsequently removed to the United States
District Court for the Southern District of Texas, Houston Division, under civil
action number H-95-0029 ("TEMI case"); and
WHEREAS, on October 6, 1995, TEMI amended its complaint in the TEMI case,
dropping LaTex Petroleum as a Defendant and adding as Defendants Xxxxxx and
Xxxxxx Xxxxxx for alleged accountants malpractice, and A. Xxxx Xxxxxx for
alleged breaches of fiduciary duty; and
WHEREAS, on March 21, 1995, LaTex Petroleum sued Panda in the District
Court in and for Tulsa County, State of Oklahoma, under case number CJ-95-01302,
alleging breach of contract and non-payment for the purchase and delivery of
natural gas ("Oklahoma case"); and
WHEREAS, on October 7, 1994, Northern Natural Gas Company sued LaTex
Resources in the 152nd Judicial District Court of Xxxxxx County, Texas under
Cause No. 94-049766, alleging breach of contract in connection with failure to
pay demand or reservation charges under two natural gas transportation
agreements ("Northern case"); and
WHEREAS, on October 20, 1995, LaTex Resources filed a Motion for Leave to
File Third Party Action of LaTex Resources, Inc. and proposed Third Party Action
against Panda in the Northern case, alleging breach of contract and negligence
in connection with a July 25, 1993 Management Agreement between LaTex Resources
and Panda; and
WHEREAS, TEMI, Nuevo, LaTex Resources, LaTex Petroleum, Panda, Xxxxxx, and
Xxxxxx Xxxxxx, while disputing and denying the allegations asserted in the
Nuevo, TEMI, Oklahoma, and Northern cases, desire to avoid the expense and
uncertainty of such litigation by settling and compromising all of their
disputes.
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein, including the recitals set forth above, TEMI, Nuevo, LaTex
Resources, LaTex Petroleum, Panda, Xxxxxx, and Xxxxxx Xxxxxx agree as follows:
1. Consideration
----------------
1.1 LaTex Resources agrees to pay Nuevo a total of $50,000.00, payable as
follows: $20,000.00 no later than December 7, 1995, and an additional
$30,000.00 within ninety days of execution of this Agreement.
1.2 The payments referenced in paragraph 1.1 will be delivered to Xxxx Xxxxxxx,
0000 Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, and they will be evidenced by
cashier's check or wire transfer.
1.3 LaTex Petroleum hereby assigns and conveys all of its claims against Panda
in the Oklahoma case, including without limitation the alleged accounts
receivable of approximately $163,000.00 for the purchase and delivery of
natural gas, to Nuevo; provided, however, LaTex Petroleum will also cause
its attorneys to dismiss the Oklahoma case with prejudice, by execution and
entry of the instruments attached hereto as Exhibit "A".
1.4 LaTex Resources agrees to pay TEMI a total principal amount of $250,000.00,
payable as follows: $50,000.00 within one year of execution of this
Agreement, another $50,000.00 within two years of execution of this
Agreement, and another $150,000.00 within three years of execution of this
Agreement.
1.5 The $250,000.00 in principal payments referenced in paragraph 1.4 shall
additionally bear interest at 6% per annum from the date of execution of
this Agreement. The interest payment totals $36,000.00, and it is payable
along with the final principal payment referenced in paragraph 1.4 of
$150,000.00 due within three years of execution of this Agreement.
1.6 The payments referenced in paragraphs 1.4 and 1.5 will be delivered to
Xxxxx Xxxxxx, 0000 Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, and they will
be evidenced by cashier's checks or wire transfer.
1.7 LaTex Resources agrees to accept assignment from Panda of any and all
obligations owing under the May 2, 1989 agreement between Panda and
Northern Natural Gas Company, as amended, relating to the obligation to
flow or pay for the transportation of natural gas through a transportation
facility located in Xxxxx County, Oklahoma (sometimes referred to as "Xxxxx
County Obligation"); to indemnify Panda and TEMI against claims from
Northern Natural Gas relating to the Xxxxx County Obligation; and to use
its best efforts to secure a release of Panda's and TEMI's obligations to
Northern Natural Gas Company under the Xxxxx County Obligation.
2. Disposition of Litigation
-----------------------------
2.1 Nuevo agrees to dismiss with prejudice all of its claims against LaTex
Resources and LaTex Petroleum in the Nuevo case, with each side bearing its
attorneys' fees, expenses, and court costs. The attorneys for Nuevo, LaTex
Resources, and LaTex Petroleum will direct their attorneys to secure the
dismissal with prejudice by the execution and entry of the instruments
attached hereto as Exhibit "B".
2.2 TEMI will dismiss with prejudice all of its claims against Xxxxxx and
Xxxxxx Xxxxxx in the TEMI case, with each side bearing its attorneys' fees,
expenses, and court costs. The attorneys for TMI, Xxxxxx, and Xxxxxx Xxxxxx
will direct their attorneys to secure the dismissal with prejudice by the
execution and entry of the instruments attached hereto as Exhibit "C".
2.3 LaTex Petroleum will dismiss with prejudice all of its claims against Panda
in the Oklahoma case, with each side bearing its own attorneys' fees,
expenses and court costs. The attorneys for LaTex Petroleum and Panda will
direct their attorneys to secure the dismissal with prejudice by the
execution and entry of the instruments attached hereto as Exhibit "A".
2.4 LaTex Resources will withdraw its Motion for leave to File Third Party
Action of LaTex Resources, Inc. and proposed Third Party Action against
Panda in the Northern case. LaTex Resources and Panda will direct their
attorneys to secure this withdrawal by the execution and entry of the
instruments attached hereto as Exhibit "D". Despite the withdrawal of the
Third Party Action, Panda and TEMI will produce documents regarding the two
transportation agreements at issue upon request by LaTex Resources and will
use best efforts to provide witnesses for deposition and trial (at the
expense of LaTex Resources, if travel is necessary) who are under their
control.
2.5 The obligations of LaTex Resources referenced in paragraphs 1.4, 1.5, 1.6,
and 1.7 shall be memorialized in an agreed judgment, which shall be in
favor of TEMI and against LaTex Resources in the amount of $1 million, less
any payments that LaTex Resources has previously made to TEMI pursuant to
said paragraphs. The agreed judgment will be signed by the attorneys for
TEMI and LaTex Resources, and it will be submitted to the Judge presiding
in the TEMI case for signature. However, the agreed judgment will not be
abstracted, executed upon, or otherwise enforced, unless and until LaTex
Resources defaults in any of its obligations referenced in paragraphs 1.4,
1.5, 1.6, and 1.7. In the event LaTex Resources timely and properly
satisfies its obligations under said paragraphs, a release of the agreed
judgment will be executed by the parties and filed with the Court. In order
to accomplish the foregoing, TEMI and LaTex Resources will direct their
attorneys to execute and enter with the Court the form of agreed judgment
attached hereto as Exhibit "E", seeking enforcement of said agreed judgment
only in the judgement of the described defaults, and to execute the form of
release of judgment attached hereto as Exhibit "F", which will be filed
upon timely and proper satisfaction of the described obligations.
3. Mutual Releases
-------------------
3.1 Temi, Nuevo, LaTex Resources, LaTex Petroleum, Panda, Xxxxxx, and Xxxxxx
Xxxxxx, for themselves and all who claim by, through, or under them, hereby
mutually, finally, and fully release, acquit, and forever discharge one
another and their respective attorneys, agents, employees, employers,
representatives, insurers, insureds, heirs, executors, administrators,
predecessors, successors, assigns, affiliates, subsidiaries, and parent
companies, from any and all claims, demands, causes of action, and
liability, they may have against one another, whether matured or
contingent, past or present, known or unknown, including without limitation
those in any way arising out of the allegations that were asserted, or
could have been asserted, in the Nuevo, TEMI, Oklahoma, or Northern cases.
3.2 The mutual releases referenced in paragraph 3.1 do not include the
obligations arising under this Agreement, which survive the execution of
this Agreement and remain in full force and effect.
4. Successors
-------------
4.1 This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their agents, representatives, executors, successors,
and assigns.
5. Miscellaneous
-----------------
5.1 The captions, headings and arrangements used in this Agreement are for
convenience only and do not in any way affect, limit, amplify or modify the
terms and provisions hereof.
5.2 This Agreement may be executed in two or more counterparts, and it shall
not be necessary that any one of the counterparts be executed by all of the
parties hereto. Each fully or partially executed counterpart shall be
deemed an original, but all such counterparts taken together shall
constitute but one and the same instrument.
5.3 Each party shall bear all attorneys' fees, costs and expenses arising from
the actions of their own counsel in connection with the above described
lawsuits and any and all matters related thereto.
5.4 This Agreement shall be construed and interpreted in accordance with the
laws of the State of Texas, and the venue for the adjudication of any
disputes arising under the Agreement shall be Xxxxxx County, Texas.
5.5 The parties declare and represent that no promise, inducement or other
agreement not expressly contained herein has been made conferring any
benefit upon any party. The parties further declare and represent that the
Agreement contains the entire Agreement and that the terms of the Agreement
are contractual and not recitals only.
5.6 In the event of any proceeding arising out of any disagreement between the
parties resulting from any provision of this Agreement, the prevailing
party in any such proceeding shall recover all of such party's reasonable
attorneys' fees and costs incurred in each and every such proceeding,
including any and all appeals or petitions therefrom.
EXECUTED and effective 7th day of December 1995.
TORCH ENERGY MARKETING, INC.
By:/s/ Xxxxx Xxxxxx
-------------------------------------
Xxxxx Xxxxxx, President
NUEVO LIQUIDS, INC.
By:/s/ Xxxx Xxxxxxx
-------------------------------------
Xxxx Xxxxxxx, President
LaTEX PETROLEUM CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
--------------------------------
Title: President
-------------------------------
LaTEX RESOURCES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
--------------------------------
Title: President
-------------------------------
PANDA RESOURCES, Inc.
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Xxxxxx Xxxxxx, Vice President
XXXXXX XXXXXX
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
XXXXXX XXXXXX & ASSOCIATES
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
--------------------------------
Title: Partner
-------------------------------
IN THE DISTRICT COURT IN AND FOR TULSA COUNTY
STATE OF OKLAHOMA
LATEX PETROLEUM CORPORATION (S)
Plaintiff (S)
(S)
VS. (S) Case No. CJ-95-01302
(S)
PANDA RESOURCES, INC. (S)
Defendant (S)
AGREED MOTION TO DISMISS WITH PREJUDICE
---------------------------------------
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, LaTex Petroleum Corporation, Plaintiff (referred to as LaTex"),
and Panda Resources, Inc., Defendant (referred to as "Panda"), and file their
Agreed Motion to Dismiss with Prejudice, and show the Court as follows:
I.
LaTex and Panda have settled this case. Part of the settlement requires
this action by LaTex against Panda to be dismissed with prejudice. As such, the
parties jointly request the Court to honor their agreement and dismiss LaTex's
claims with prejudice.
WHEREFORE, PREMISES CONSIDERED, Latex Petroleum Corporation, Plaintiff, and
Panda Resources, Inc., Defendant, request the Court to dismiss LaTex's claims
against Panda with prejudice, with attorney's fees, expenses, and court costs to
be borne by the party incurring same, and for such other and further relief to
which they may be justly entitled.
Respectfully submitted,
----------------------------------------
H. Xxxxxxx Xxxxxx, OBA #10582
XXXXXX & XXXXXX
Attorney for the Plaintiff
0000 Xxxxx Xxxxxxx, Xxxxx X
Xxxxx, Xxxxxxxx 00000
918/748-8987
FAX 918/000-0000
Attorney for Plaintiff LaTex Petroleum Corporation
----------------------------------------
Xxxxxxxx Xxxxxxx, OBA #2436
J. Xxxxxxx Xxxxxx, OBA #6113
000 X. Xxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000-0000
(000) 000-0000
XXXXXXXXXX, ISGUR & ROTHFELDER, L.L.P.
----------------------------------------
Xxxxxxx X. Xxxxxxxxxx
Xxxxxxx X. Xxxxxx
000 Xxxxxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
(000) 000-0000 - Telephone
(000) 000-0000 - Telecopier
Attorneys for Defendant Panda Resources, Inc.
CERTIFICATE OF SERVICE
----------------------
I hereby certify that a true and correct copy of the above and foregoing
instrument has been forwarded by certified mail, return receipt requested,
addressed to the following:
H. Xxxxxxx Xxxxxx
XXXXXX & XXXXXX
Attorney for the Plainfiff
0000 Xxxxx Xxxxxxx, Xxxxx X
Xxxxx, Xxxxxxxx 00000
on this the ____ day of _______________, 199___.
------------------------------
Xxxxxxx X. Xxxxxxxxxx
IN THE DISTRICT COURT IN AND FOR TULSA COUNTY
STATE OF OKLAHOMA
LATEX PETROLEUM CORPORATION (S)
Plaintiff (S)
(S)
VS. (S) Case No. CJ-95-01302
(S)
PANDA RESOURCES, INC. (S)
Defendant (S)
AGREED ORDER OF DISMISSAL With PREJUDICE
----------------------------------------
On this day LaTex Petroleum Corporation, Plaintiff, and Panda Resources,
Inc., Defendant, jointly requested the Court to dismiss with prejudice this
litigation. The Court, having considered the parties' agreement and the
pleadings, finds that the agreement is acceptable and should be made an order of
the Court. It is therefore,
ORDERED that LaTex Petroleum Corporation's claim against Panda Resources
be, and hereby is, dismissed with prejudice, with attorney's fees, expenses, and
court costs to be paid by the party incurring same.
SIGNED this ___ day of __________________ 199___.
-----------------------------------
JUDGE PRESIDING
APPROVED AND AGREED TO:
------------------------------------------
H. Xxxxxxx Xxxxxx, OBA #10582
XXXXXX & XXXXXX
Attorney for the Plaintiff
0000 Xxxxx Xxxxxxx, Xxxxx X
Xxxxx, Xxxxxxxx 00000
918/748-8987
FAX 918/000-0000
Attorneys for Plaintiff LaTex Petroleum Corporation
------------------------------------------
Xxxxxxxx Xxxxxxx, OBA #2436
J. Xxxxxxx Xxxxxx, OBA #6113
000 X. Xxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000-0000
(000) 000-0000
XXXXXXXXXX, ISGUR & ROTHFELDER, L.L.P.
------------------------------------------
Xxxxxxx X. Xxxxxxxxxx
Xxxxxxx X. Xxxxxx
000 Xxxxxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
(000) 000-0000 - Telephone
(000) 000-0000 - Telecopier
Attorneys for Defendant Panda Resources, Inc.
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
NUEVO LIQUIDS, INC. (S)
(S)
Plaintiff, (S)
(S)
VS. (S) CIVIL ACTION NO. H-95-OO28
(S)
LATEX RESOURCES, INC. AND (S)
LATEX PETROLEUM CORPORATION, (S) UNOPPOSED
(S) ---------
Defendants. (S)
(S)
AGREED MOTION TO DISMISS WITH PREJUDICE
---------------------------------------
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW, Nuevo Liquids, Inc., Plaintiff (referred to as "Nuevo"), and
LaTex Resources, Inc. and LaTex Petroleum Corporation, Defendants (respectively
referred to as "LaTex Resources" and "LaTex Petroleum"), and file their Agreed
Motion to Dismiss with Prejudice, and show the Court as follows:
I.
Nuevo, LaTex Resources, and LaTex Petroleum have settled this case. Part
of the settlement requires this action by Nuevo against LaTex Resources and
LaTex Petroleum to be dismissed with prejudice. As such, the parties jointly
request the Court to honor their agreement and dismiss Nuevo's claims with
prejudice.
WHEREFORE, PREMISES CONSIDERED, Nuevo Liquids, Inc., LaTex Resources,
Inc. and LaTex Petroleum Corporation request the Court to dismiss Nuevo's claims
against
LaTex Resources and LaTex Petroleum with prejudice, with attorney fees,
expenses, and court costs to be borne by the party incurring same, and for such
other and further relief to which they may be justly entitled.
Respectfully submitted,
XXXXXXXXXX, XXXXX & ROTHFELDER, L.L.P.
---------------------------------------
Xxxxxxx X. Xxxxxxxxxx
TSB #17318100
Xxxxxxx X. Xxxxxx
TSB #06794600
000 Xxxxxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
(000) 000-0000 - Telephone
(000) 000-0000 - Telecopier
Attorney-in-Charge for Plaintiff
Nuevo Liquids, Inc.
McDADE & FOGLER, L.L.P.
By
-------------------------------------
Xxxxxx Xxxxxx
State Bar No.07207300
Two Houston Center
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Telephone: 713/000-0000
Telecopier: 713/654-4343
Attorney-in-Charge for Defendants, LaTex Resources,
Inc. And LaTex petroleum Corporation
2
CERTIFICATE OF SERVICE
----------------------
I hereby certify that a true and correct copy of the above and foregoing
instrument has been forwarded by certified mail, return receipt requested,
addressed to the following:
Xxxxxx Xxxxxx
Two Houston Center
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
on this the ____ day of ______________, 199___.
------------------------------------
Xxxxxxx X. Xxxxxxxxxx
3
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
NUEVO LIQUIDS, INC. (S)
(S)
Plaintiff, (S)
(S)
VS. (S) CIVIL ACTION NO. H-95-0028
(S)
LATEX RESOURCES, INC. AND (S)
LATEX PETROLEUM CORPORATION, (S)
(S)
Defendants. (S)
AGREED ORDER OF DISMISSAL WITH PREJUDICE
----------------------------------------
On this day Nuevo Liquids, Inc., Plaintiff, and LaTex Resources, Inc. and
LaTex Petroleum Corporation, Defendants, jointly requested the Court to dismiss
with prejudice this litigation, consisting of Nuevo Liquids, Inc.'s claims
against LaTex Resources Inc. and LaTex Petroleum Corporation. The Court, having
considered the parties' agreement and the pleadings, finds that the agreement is
acceptable and should be made an order of the Court. It is therefore,
ORDERED that Nuevo Liquids, Inc.'s claims against LaTex Resources, Inc. and
LaTex Petroleum Corporation be, and hereby are, dismissed with prejudice, with
attorney's fees, expenses, and court costs to be paid by the party incurring
same.
SIGNED this ____ day of __________________, 1995.
-----------------------------------
JUDGE PRESIDING
APPROVED AND AGREED TO:
XXXXXXXXXX, ISGUR & ROTHFELDER, L.L.P.
--------------------------------------
Xxxxxxx Xxxxxxxxxx
TSB #17318100
Xxxxxxx X. Xxxxxx
TSB #06794600
000 Xxxxxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
(000) 000-0000 - Telephone
(000) 000-0000 - Telecopier
Attorney-in-Charge for Plaintiff Nuevo
Liquids, Inc.
McDADE & XXXXXX, L.L.P.
By
------------------------------------
Xxxxxx Xxxxxx
State Bar No.07207300
Two Houston Center
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Telephone: 713/000-0000
Telecopier: 713/654-4343
Attorney-in-Charge for Defendants, LaTex
Resources, Inc. and LaTex Petroleum Corporation
2
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
TORCH ENERGY MARKETING, INC. (S)
(S)
Plaintiff, (S)
(S)
VS. (S) CIVIL ACTION NO. H-95-0029
(S)
LATEX RESOURCES, INC., (S)
XXXXXX XXXXXX, XXXXXX XXXXXX & (S) UNOPPOSED
ASSOCIATES, AND A. XXXX XXXXXX (S) ---------
(S)
Defendants. (S)
AGREED MOTION TO DISMISS WITH PREDJUDICE
----------------------------------------
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW, Torch Energy Marketing, Inc., Plaintiff (referred to as "Torch"),
and Xxxxxx Xxxxxx and Xxxxxx Xxxxxx & Associates, two of the Defendants
(respectively referred to as Xxxxxx and "Xxxxxx Xxxxxx"), and file their Agreed
Motion to Dismiss with Prejudice, and show the Court as follows:
I.
Torch, Xxxxxx and Xxxxxx Xxxxxx have settled this case as between
themselves. Part of their settlement requires this action by Torch against
Xxxxxx and Xxxxxx Xxxxxx to be dismissed with prejudice. As such, the parties
jointly request the Court to honor their agreement and dismiss Torch's claims
against Xxxxxx and Xxxxxx Xxxxxx with prejudice.
WHEREFORE, PREMISES CONSIDERED, Torch Energy Marketing, Inc., Xxxxxx
Xxxxxx, and Xxxxxx Xxxxxx & Associates request the Court to dismiss Torch's
claims against
Xxxxxx and Xxxxxx Xxxxxx with prejudice, with attorney fees, expenses, and court
costs to be borne by the party incurring same, and for such other and further
relief to which they may be justly entitled.
Respectfully submitted,
XXXXXXXXXX, ISGUR & ROTHFELDER, L.L.P.
---------------------------------------
Xxxxxxx X. Xxxxxxxxxx
TSB #17318100
Xxxxxxx X. Xxxxxx
TSB #06794600
000 Xxxxxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
(000) 000-0000 - Telephone
(000) 000-0000 - Telecopier
Attorney-In-Charge for Plaintiff
Torch Energy Marketing, Inc.
McDADE & XXXXXX, L.L.P.
By
-------------------------------------
Xxxxxx Xxxxxx
State Bar No. 07207300
Two Houston Center
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Telephone: 713/000-0000
Telecopier: 713/654-4343
Attorney-in-Charge for Defendants,
Xxxxxx Xxxxxx and Xxxxxx Xxxxxx & Associates
2
CERTIFICATE OF SERVICE
----------------------
I hereby certify that a true and correct copy of the above and foregoing
instrument has been forwarded by certified mail, return receipt requested,
addressed to the following:
Xxxxxx Xxxxxx
Two Houston Center
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attorney-in-Charge for Defendants,
LaTex Resources, Inc., Xxxxxx Xxxxxx
and Xxxxxx Xxxxxx & Associates
on this the _____ day of _________________, 199___.
---------------------------------
Xxxxxxx X. Xxxxxxxxxx
3
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
TORCH ENERGY MARKETING, INC. (S)
(S)
Plaintiff, (S)
(S)
VS. (S) CIVIL ACTION NO. H-95-0029
(S)
LATEX RESOURCES, INC., (S)
XXXXXX XXXXXX, XXXXXX XXXXXX & (S)
ASSOCIATES, AND A. XXXX XXXXXX (S)
(S)
Defendants. (S)
AGREED ORDER OF DISMISSAL WITH PREJUDICE
----------------------------------------
On this day Torch Energy Marketing, Inc., Plaintiff, and Xxxxxx Xxxxxx and
Xxxxxx Xxxxxx & Associates, Defendants, jointly requested the Court to dismiss
with prejudice this litigation as between themselves, consisting of Torch Energy
Marketing, Inc.'s claims against Xxxxxx Xxxxxx and Xxxxxx Xxxxxx & Associates.
The Court, having considered the parties' agreement and the pleadings, finds
that the agreement is acceptable and should be made an order of the Court. It is
therefore,
ORDERED that Torch Energy Marketing, Inc.'s claims against Xxxxxx Xxxxxx
and Xxxxxx Xxxxxx & Associates be, and hereby are, dismissed with prejudice,
with attorney's fees, expenses, and court costs to be paid by the party
incurring same.
SIGNED this ___ day of ___________________, 1995.
------------------------------------
JUDGE PRESIDING
APPROVED AND AGGREED TO:
XXXXXXXXXX, ISGUR & ROTHFELDER, L.L.P.
--------------------------------
Xxxxxxx X. Xxxxxxxxxx
TSB #17318100
Xxxxxxx X. Xxxxxx
TSB #06794600
000 Xxxxxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
(000) 000-0000 - Telephone
(000) 000-0000 - Telecopier
Attorney-in-Charge for Plaintiff
Torch Energy Marketing, Inc.
McDADE & XXXXXX, L.L.P.
By
-----------------------------
Xxxxxx Xxxxxx
State Bar No.07207300
Two Houston Center
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Telephone: 713/000-0000
Telecopier: 713/654-4343
Attorney-in-Charge for Defendants,
Xxxxxx Xxxxxx and Xxxxxx Xxxxxx & Associates
2
Cause No. 94-049766
NORTHERN NATURAL GAS COMPANY (S) IN THE DISTRICT COURT
(S)
VS. (S) 152ND JUDICIAL DISTRICT
(S)
LaTex RESOURCES, INC. (S) XXXXXX COUNTY, TEXAS
WITHDRAWAL OF MOTION
FOR LEAVE TO FILE THIRD PARTY ACTION
------------------------------------
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, LaTex Resources, Inc., Defendant ("LaTex"), and files
its Withdrawal of Motion for Leave to File Third Party Action, and in
support thereof would show the Court as follows:
1. LaTex and Panda Resources, Inc. ("Panda") have settled the issues
between them that related to this lawsuit. Part of the settlement
requires that LaTex withdraw its previously filed Motion for Leave to
File Third Party Action. That Motion sought to make Panda, as proposed
third-party defendant, liable to LaTex or to Northern Natural Gas
Company, Plaintiff ("Northern"), for all or part of Northern's claims
against LaTex.
2. LaTex intends that this withdrawal shall operate as a prohibition
against all future attempts by LaTex to make Panda a party to this
lawsuit.
WHEREFORE, PREMISES CONSIDERED, LaTex Resources, Inc., Defendant,
requests the Court to order:
1. the withdrawal of LaTex's Motion for Leave to File Third Party
Action;
2. that this withdrawal be made with prejudice, prohibiting LaTex
from ever again seeking to make Panda a party to this lawsuit;
and
3. that attorney's fees, expenses, and court costs are to be
borne by the party incurring same.
Respectfully Submitted,
McDAD & FOGLER, L.L.P.
By
--------------------------------
Xxxxxx Xxxxxx
State Bar No. 07207300
Two Houston Center
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Telephone: 713/000-0000
Telecopier: 713/654-4343
Attorney-in-Charge for Defendant,
LaTex Resources, Inc.
2
CERTIFICATE OF SERVICE
----------------------
I hereby certify that a true and correct copy of the above and foregoing
instrument has been forwarded by certified mail, return receipt requested,
addressed to the following:
Xxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Xxxxxxx X. Xxxxx
Northern Natural Gas Company
0000 X. 000xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Xxxxxxx X. Xxxxxxxxxx
Xxxxxxxxxx, Xxxxx & Rothfelder, L.L.P.
000 Xxxxxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
on this the __ day of _______________, 1995.
---------------------------
Xxxxxx Xxxxxx
0
XXXXXX XXXXXX XXXXXXXX XXXXX
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
TORCH ENERGY MARKETING, INC. (S)
(S)
Plaintiff, (S)
(S)
VS. (S) CIVIL ACTION NO. H-95-0029
(S)
LATEX RESOURCES, INC., (S)
XXXXXX XXXXXX, XXXXXX XXXXXX & (S) UNOPPOSED
ASSOCIATES, AND A. XXXX XXXXXX (S) ---------
(S)
Defendants. (S)
AGREED MOTION FOR FINAL JUDGMENT
--------------------------------
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW, Torch Energy Marketing, Inc., Plaintiff (referred to as "Torch")
and LaTex Resources, Inc., the sole remaining Defendant (referred to as
"LaTex"), and file their Agreed Motion for Final judgment, and show the Court as
follows:
1. Torch and LaTex have settled this case as between themselves. All other
parties to the case have been dismissed. As such, Torch and LaTex jointly
request the Court to honor their agreement and to grant their Agreed Final
judgment as follows.
2. Contemporaneous to the filing of this motion, Torch Energy Marketing, Inc.
("Torch"), Nuevo Liquids, Inc. ("Nuevo"), LaTex Resources, LaTex Petroleum
Corporation ("LaTex Petroleum"), Panda Resources, Inc. ("Panda"), Xxxxxx Xxxxxx
("Xxxxxx"), and Xxxxxx Xxxxxx & Associates ("Xxxxxx Xxxxxx") have entered into a
Settlement Agreement, some of the terms of which are memorialized below.
3. LaTex Resources, shall promise to pay Torch Two Hundred and Fifty Thousand
Dollars ($250,000.00) principal, plus 6% per annum, payable at the offices of
Xxxxx Xxxxxx, 0000 Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, with all payments in
the form of cashiers checks or wire transfer, due as follows:
a. $50,000.00 no later than one year after the date of the execution of
the Settlement Agreement;
b. an additional $50,000.00 no later than two years after the date of
the execution of the Settlement Agreement; and
C. an additional $150,000.00, plus unpaid accrued interest on the entire
$250,000.00 principal, within three years after the date of the
execution of the Settlement Agreement.
4. Defendant, LaTex Resources, agrees
a. to accept assignment from Panda of any and all obligations owing
under the May 2, 1989 agreement between Panda and Northern Natural
Gas Company ("NNG"), as amended, relating to the obligation to flow
or pay for the transportation of natural gas through a transportation
facility located in Xxxxx County, Oklahoma ("Xxxxx County
Obligation");
b. to indemnify Panda and Torch against claims from NNG relating to the
Xxxxx County Obligation; and
C. to use its best efforts to secure the release of Panda's and Torch's
obligations, if any, to NNG under the Xxxxx County Obligation.
5. Defendant, Latex Resources, as security for its promised performance of the
above obligations, shall stipulate that it is liable to plaintiff, Torch, in the
amount of One Million Dollars ($1,000,000.00), less any payments made by LaTex
Resources to Torch as described in paragraph 3 above.
6. Defendant, LaTex Resources, further agrees and stipulates that, in
consideration of Torch's promise to permit LaTex Resources to retire this
judgment through its making the payments described in paragraph 3 above and to
forbear the filing of an abstract of this judgment and any attempt to execute
this judgment until LaTex Resources defaults in its obligations
2
hereunder, the requested judgment shall not become stale and shall remain fully
enforceable the same as if Torch had sought execution from the day of its
execution.
7. Defendant, LaTex Resources, desires the Agreed Final Judgment to be binding
on it contractually and judicially. LaTex further agrees that said judgment
shall be and become final on the day it is signed by the Court, and LaTex waives
all rights to review that Agreed Final Judgment, appellate or otherwise.
WHEREFORE, PREMISES CONSIDERED, Torch Energy Marketing, Inc., Plaintiff,
and LaTex Resources, Inc., Defendant, request the Court to grant this agreed
motion for final judgment, and for such other and further relief to which they
may be justly entitled.
Respectfully submitted,
XXXXXXXXXX, XXXXX & ROTHFELDER, L.L.P.
-----------------------------------
Xxxxxxx X. Xxxxxxxxxx
TSB #17318100
Xxxxxxx X. Xxxxxx
TSB #06794600
000 Xxxxxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
(000) 000-0000 - Telephone
(000) 000-0000 - Telecopier
Attorney-in-Charge for Plaintiff
Torch Energy Marketing, Inc.
McDADE & FOGLER, L.L.P.
By
-----------------------------
Xxxxxx Xxxxxx
State Bar No.07207300
Two Houston Center
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Telephone: 713/000-0000
Telecopier: 713/654-4343
Attorney-in-Charge for Defendant,
LaTex Resources, Inc.
3
CERTIFICATE OF SERVICE
----------------------
I hereby certify that a true and correct copy of the above and
foregoing instrument has been forwarded by certified mail, return receipt
requested, addressed to the following:
Xxxxxx Xxxxxx
Two Houston Center
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00X00-0000
Attorney-in-Charge for Defendant,
LaTex Resources, Inc.
on this the _____ day of______________, 199__.
___________________________
Xxxxxxx X. Xxxxxxxxxx
4
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
TORCH ENERGY MARKETING, INC. (S)
(S)
Plaintiff, (S)
(S)
VS. (S) CIVIAL ACTION NO. H-95-0029
(S)
LaTex RESOURCES, INC., (S)
XXXXXX XXXXXX, XXXXXX XXXXXX & (S) UNOPPOSED
ASSOCIATES, AND A. XXXX XXXXXX (S) ---------
(S)
Defendants. (S)
AGREED FINAL JUDGMENT
---------------------
BE IT REMEMBERED that on this day, came on to be considered the Joint
Motion to Enter Agreed Judgment concerning the causes of action against LaTex
Resources, Inc., defendant in the above entitled and numbered cause ("LaTex
Resources"). The parties appearing herein by consent, announce their intention
to enter into an Agreed Judgment.
1. Contemporaneous to the execution of this Agreed Final Judgment, Torch
Energy Marketing, Inc. ("Torch"), Nuevo Liquids, Inc. ("Nuevo"), LaTex
Resources, LaTex Petroleum Corporation ("LaTex Petroleum"), Panda Resources,
Inc. ("Panda"), Xxxxxx Xxxxxx ("Xxxxxx"), and Xxxxxx Xxxxxx & Associates
("Xxxxxx Xxxxxx") have entered into a Settlement Agreement, some of the terms of
which are memorialized below .
2. Defendant, LaTex Resources, promises to pay Torch Two Hundred and Fifty
Thousand Dollars ($250,000.00) principal, plus 6% per annum, payable at the
offices of Xxxxx Xxxxxx, 0000 Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, with all
payments in the form of cashiers checks or wire transfer, due as follows:
a. $50,000.00 no later than one year after the date of the
execution of the Settlement Agreement;
b. an additional $50,000.00 no later than two years after the
date of the execution of the Settlement Agreement; and
C. an additional $150,000.00, plus unpaid accrued interest on the
entire $250,000.00 principal, within three years after the
date of the execution of the Settlement Agreement.
3. Defendant, LaTex Resources, agrees
a. to accept assignment from Panda of any and all obligations
owing under the May 2, 1989 agreement between Panda and
Northern Natural Gas Company ("NNG"), as amended, relating to
the obligation to flow or pay for the transportation of
natural gas through a transportation facility located in Xxxxx
County, Oklahoma ("Xxxxx County Obligation");
b. to indemnify Panda and Torch against claims from NNG relating
to the Xxxxx County Obligation; and
C. to use its best efforts to secure the release of Panda's and
Torch's obligations, if any, to NNG under the Xxxxx County
Obligation.
4. Defendant, LaTex Resources, as security for its promised performance
of the above obligations, stipulates that it is liable to plaintiff,
Torch, in the amount of One Million Dollars ($1,000,000.00), less any
payments made by Latex Resources to Torch as described in paragraph 2
above.
5. Defendant, LaTex Resources, further agrees and stipulates that, in
consideration of Torch's promise to permit LaTex Resources to retire this
judgment through its making the payments described in paragraph 2 above
and to forbear the filing of an abstract of this judgment
2
and any attempt to execute this judgment until LaTex Resources defaults
in its obligations hereunder, this judgment shall not become stale and
shall remain fully enforceable the same as if Torch had sought execution
from this day.
6. Defendant, LaTex Resources, desires the Judgment to be binding on it
contractually and judicially. LaTex further agrees that this judgment
shall be and become final on the day it is signed by the Court, and LaTex
waives all rights to review this Judgment, appellate or otherwise.
It is, therefore, ORDERED that Plaintiff, Torch Energy Marketing,
Inc. have and recover of and from LaTex Resources, Inc. the sum of One
Million Dollars ($1,000,000.00), together with post-judgment interest at
the maximum rate allowed by law, from the date of judgment until paid,
plus all costs of court. Plaintiff is allowed such writs and processes
as may be necessary in the collection or enforcement of this Judgment.
A11 relief not specifically granted herein is denied. This is a
final judgment. Signed this __ day of __________, 1995.
--------------------------------------
XXXXXXXXX XXXXXXX X. XXXX
UNITED STATES DISTRICT JUDGE
3
APPROVED AND AGREED TO:
XXXXXXXXXX, XXXXX & ROTHFELDER, L.L.P.
--------------------------------
Xxxxxxx X. Xxxxxxxxxx
TSB #17318100
Xxxxxxx X. Xxxxxx
TSB #06794600
000 Xxxxxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
(000) 000-0000 - Telephone
(000) 000-0000 - Telecopier
Attorney-in-Charge for Plaintiff
Torch Energy Marketing, Inc.
McDADE & FOGLER, L.L.P.
By
------------------------------
Xxxxxx Xxxxxx
State Bar No.07207300
Two Houston Center
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Telephone: 713/000-0000
Telecopier: 713/654-4343
Attorney-in-Charge for Defendant,
LaTex Resources, Inc.
4
CERTIFICATE OF SERVICE
----------------------
I hereby certify that a true and correct copy of the above and foregoing
instrument has been forwarded by certified mail, return receipt requested,
addressed to the following:
Xxxxxx Xxxxxx
Two Houston Center
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 000x0-x000
on this the ____ day of ___________________, 199__.
-------------------------
Xxxxxxx X. Xxxxxxxxxx
5
RELEASE OF JUDGMENT LIEN
------------------------
On _______________, 1995, in Civil Action No. H-95-0029, in the United
States District Court for the Southern District of Texas, Houston Division,
Torch Energy Marketing Inc. recovered judgment for $1 million, plus interest and
court costs from LaTex Resources, Inc.
The judgment has been satisfied.
Therefore, as authorized attorney of record for Torch Energy Marketing
Inc., who is the party entitled to receive payment of the judgment, I hereby
release LaTex Resources, Inc. from any lien existing because of the judgment.
SIGNED on ________________________, 199____.
XXXXXXXXXX, ISGUR & ROTHFELDER, L.L.P.
--------------------------------
Xxxxxxx X. Xxxxxxxxxx
TSB #17318100
000 Xxxxxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
(000) 000-0000 - Telephone
(000) 000-0000 - Telecopier
Attorney for Torch Energy Marketing, Inc.
STATE OF TEXAS (S)
(S)
COUNTY OF XXXXXX (S)
BEFORE ME, the undersigned notary public, on this day personally appeared
Xxxxxxx X. Xxxxxxxxxx, known to me to be the person whose name is subscribed to
the foregoing instrument, and acknowledged to me that he executed the same for
the purposes and consideration therein expressed and in the capacity therein
stated.
SUBSCRIBED AND SWORN TO BEFORE ME on this ___ day of
______________________, 199____.
-------------------------------------------
Notary Public in and for the State of Texas
