RELEASE AND SETTLEMENT AGREEMENT. This Release and Settlement Agreement (hereinafter referred to as the "Agreement") is

Transcription

1 RELEASE AND SETTLEMENT AGREEMENT This Release and Settlement Agreement (hereinafter referred to as the "Agreement") is made and entered into effective the 12tfrjay of February, 2009, by and among White Settlement Independent School District ("Plaintiff), on the one hand, and North Texas Steel Company, Inc. and Whitco Poles, Inc. (collectively. "Defendants"), on the other. Plaintiff and Defendants shall be collectively referred to in this Agreement as the "Parties." WHEREAS, on March 15, 2006, Whitco Company, L.P. (the "Debtor") filed for relief under chapter 11 of title 11 of the United States Code, 11 U.S.C (as amended, the "Bankruptcy Code"); WHEREAS, on April 25, 2006, the Debtor sold substantially all its assets (the "Transferred Assets") to American Technologies Group, Inc., or its subsidiary Whitco Poles, Inc., free and clear of all liens, claims and encumbrances pursuant to a bankruptcy court order entered on April 25,2006, under section 363(f) of the Bankruptcy Code (the "Sale Order"); WHEREAS, on or about June 1, 2007, Plaintiff filed its Original Petition, commencing the case styled White Settlement Independent School District v. Whitco Company LP, Case No. L , in the 236 th Judicial District, Tarrant County, Texas (the "Lawsuit"); WHEREAS, in the Lawsuit, Plaintiff seeks to collect delinquent ad valorem taxes, in the amount of $33, (the "Taxes"), owed in respect of Transferred Assets for fiscal year 2006 from the Debtor and the Defendants, the current owners of the Transferred Assets; WHEREAS, despite the sale of the Transferred Assets free and clear of all encumbrances, Plaintiff asserts a lien on the Transferred Assets for delinquent Taxes; WHEREAS, Plaintiff reopened the Debtor's bankruptcy case and filed a motion to reconsider the Sale Order based on the contention that it did not receive notice of the sale;

2 WHEREAS, the Defendants deny any liability to the Plaintiff and contend that the Transferred Assets are free and clear of any Hens that Plaintiff could claim; and NOW, THEREFORE, for and in consideration of the promises and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged and confessed, the Parties hereto have agreed to settle the Lawsuit according to the following terms: 1. The Defendants collectively shall pay the Plaintiff the total sum of $16, (the "Settlement Payment"), within ten (10) days of execution of this Agreement. Such payment shall be by check made payable to "White Settlement Independent School District" and shall be delivered to Plaintiffs counsel, Hoodenpyle & Lobert, P.C. (c/o David Fetter). 2. Upon receipt of the Settlement Payment, the Plaintiff shall immediately prepare, execute and file with the State Court a motion to dismiss the Lawsuit with prejudice to the refiling of the same. 3. Each Party shall bear its own costs and attorneys fees in connection with the Lawsuit and any bankruptcy proceedings. 4. Except for the obligations and rights expressly set forth and reserved by this Agreement, and for and in consideration of the execution of this Agreement, and other valuable consideration, the adequacy and sufficiency of which is acknowledged and confessed, the Plaintiff hereby releases, acquits, and forever discharges, and by these presents, does release, acquit, and forever discharge the Defendants, their assets (including the Transferred Assets) and their agents, servants, employees, representatives, affiliates, subsidiaries, and assigns, from any and all claims, lawsuits, demands, actions, liens, encumbrances, and causes of action of any kind whatsoever, known or unknown, whether in contract, tort, equity, or by statute, for any form of

3 damages whatsoever which it has or may have against Defendants that arise out of the facts asserted in the Lawsuit. 5. The Plaintiff represents and warrants that it has not assigned, transferred or conveyed to another person all or part of any Lawsuit, claims, liens, demands, actions, or causes of action that it may have arising out of the facts giving rise to the Lawsuit. 6. This Agreement effects a settlement of claims that are disputed. Payment of the Settlement Payment is not to be construed as an admission of liability on the part of Defendants, by whom liability is expressly denied. 7. The Parties hereby agree, represent and warrant to each other that they have read this Agreement and understand it to be a full and complete compromise and settlement of the Lawsuit. 8. Nothing contained herein shall be construed to relate to lawsuits which may arise from the Parties' performance, or failure to perform, the terms of this Agreement. 9. The Parties further warrant that they are fully authorized to execute this Agreement, and that they execute this Agreement of their own free will and accord without reliance upon any representation of any kind or character not expressly set forth herein. 10. The Parties agree that as part of the consideration for this Agreement, and before executing this Agreement, the Parties hereto have been informed of the terms, contents, conditions, and effects of this Agreement by attorneys of each Party's own choosing; that in executing this Agreement and negotiating the terms hereof, the Parties have had the benefit of the advice of attorneys of their or its own choosing; and that no promise or representation of any kind has been made to any Party or by any Party hereto, or anyone acting for them, except as is

4 expressly stated in this Agreement. The Parties represent that they have relied completely and solely on their judgment and the advice of their own attorneys in executing this Agreement. 11. The Parties agree that if it be determined by the Court that any Party has failed to perform its obligations herein, then the prevailing Party or Parties shall be entitled to recover reasonable attorneys' fees, court costs, and other reasonable and necessary expenses incurred in the enforcement of the rights and obligations set forth in this Agreement. 12. The Parties understand and agree that this Agreement may be executed in any number of identical counterparts, each of which shall be deemed an original for all purposes. 13. The Parties agree that this Agreement may not be changed, revised, or otherwise amended by any of the Parties hereto except by writing signed by all of the Parties hereto. 14. The Parties agree that this Agreement is entered into and pertbrmable in Tarrant County, Texas. The Parties further agree that this Agreement is subject to the laws of the State of Texas. 15. This Agreement contains the complete agreement of the Parties hereto with respect to all matters and supersedes any other prior or contemporaneous oral or written agreements or understandings concerning settlement of the Lawsuit or lawsuits made therein. EXECUTED AND EFFECTIVE this 12th day of February, RELEASE AND SETTLEMENT AGREEMENT v.2

5 WHITCO POLES, INC., Dated: Febraary 12th, 2009 STATE OF TEXAS COUNTY OF DALLAS BEFORE ME, the undersigned authority, on this day personally appeared R. Barry Ennis, the President of Whitco Poles, Inc., known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he has read the foregoing instrument, and fully understands it to be a Settlement Agreement of all lawsuits described therein, and that she executed the same for the purposes and consideration expressed therein. Given under my hand and seal of office this 12th day of February [SEAL]

6 NORTH TEXAS STEEL COMPANY, INC. By: Date: February 12tlCQQQ STATE OF COUNTY OF TEXAS IABEANT BEFORE ME, the undersigned authority, on this day personally appeared Barry Ennls, the PrBi.irtent _ of North Texas Steel Company, Inc., known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he has read the foregoing instrument, and fully understands it to be a Settlement Agreement of all lawsuits described therein, and that he executed the same for the purposes and consideration expressed therein. Given under my hand and seal of office this 12th day of February, [SEAL] \ / RELEASE AND SETTLEMENT AGREEMENT v.2

7 WHITE SETTLEMENT INDEPENDENT SCHOOL DISTRICT By: Date: February, 2009 COUNTY OF BEFORE ME, the undersigned authority, on this day personally appeared, the of White Settlement Independent School District to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he/she has read the foregoing instrument, and fully understands it to be a Settlement Agreement of all lawsuits described therein, and that he/she executed the same for the purposes and consideration expressed therein. Given under my hand and sea! of office this day of, Notary Public, State of _ [SEAL]