Preview
Case 12-03442 PHIF 1S 46°) Cour opgegs Page 2 of 30
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
IN RE:
WILCARE, INC,
Debtor,
CASE NO. 11-40808
CHAPTER 11
MARC SCHWARTZ, CHAPTER 11
TRUSTEE FOR WILCARE, INC.,
Plaintiff,
v. ADVERSARY NO. 12-03412
MORTENSON BROADCASTING COMPANY,
MORTENSON BROADCASTING CO.
OF TEXAS
AND MBC OF TEXAS-KVRA, INC.
Defendants-Third Party Plaintiffs.
v.
TED D. NGUYEN
Third Party Defendant.
2 OO LD LP OL LP LP LP UP UD LP UD OD LOD OD LD) UD LD
SETTLEMENT OF ALL CLAIMS AND CAUSES OF ACTION BETWEEN
NGUYEN AND MORTENSEN
This Settlement Agreement is entered into by and between Third-Party Plaintiff
Mortensen Broadcasting Company, Mortensen Broadcasting Co. of Texas, and MBC of Texas-
KRVA, Inc, (collectively, “Mortensen”) and Third-Party Defendant Ted D. Nguyen (“Nguyen”)
to settle all claims brought by Mortensen against Nguyen in the above-captioned matter.
Mortensen and Nguyen hereby state their desire to resolve, settle and release all claims
and causes of action pursuant to the following terms and conditions:Case 12-03412 Document 96-1 Filed in TXS8 on O8/06/13 Page 3 af 30
1. Upon execution of this Agreement, Nguyen shall deliver the Petition, Answer and
Consent Judgment attachment as Exhibit A to Mortensen. The Petition, Answer and Consent
Judgment are to be held in trust by Mortensen until further disposition in accordance with this
Agreement.
2. Payment terms: Nguyen agrees to pay to Mortensen the total amount of
$300,138.08, on the following terms:
a. Beginning on July 1, 2014, and for a period five years on July 1 of each
following year, Nguycn will pay Mortensen fifteen thousand dollars ($15,000)
per year. On July 1, 2019 and each year thereafter, Nguyen will pay
Mortensen thirty-five thousand dollars ($35,000) until the total sum of
$300,138.08 is paid off.
b. This total amount or any lesser amount then owing shall not bear interest
unless and until Nguyen defaults on this settlement and the Consent Judgment
is entered, If the Consent Judgment is entered, then interest of six percent pcr
annum, will be applied to all then-due and owing past-due amounts and be
deemed accrued beginning on the date that the last payment was received by
Mortensen. Interest at the rate of six percent will continue to accrue until the
Consent Judgment is satisfied.
c. To the extent Mortensen must file the Petition to enforce settlement agreement
and Consent Judgment, Mortensen shall be entitled to reasonable attorneys”
fees and costs, established by an affidavit from his attorney. Such fees and
costs shall also be awarded if Mortensen successfully defends a collateral
attack on the Consent Judgment. Mortenson shall also be entitled toCase 12-03412 Document 96-1 Filed in TXSB on 08/06/13 Page 4 of 30
reasonable attorney fees on a successful appeal (s) of this case in the amounts
of $10,500 to the Court of Appeals and $7,000 to the Texas Supreme Court.
3. Default/Notice: The Consent Judgment shall only be entered by Mortensen upon
failure to pay by Nguyen by July 30 in any given year. At least fourtcen days prior to entry of
the Consent Judgment, Mortensen shall send notice of non-receipt of payment to the following:
a. Ted Nguyen, by US mail at Everose Healthcare, 11200 Westheimer Rd., Suite
100, Houston, Texas 77042, and by email at Teddiepng! @live.com.
b. Tom Grace, Vorys Sater Seymour and Pease, LLP, by fax at 713-588-7050
and by email at THGrace@vorys.com
The fourteen days notice can be send as early as July 16 of the applicable year. Mortensen
cannot seek entry of the Consent Judgment until proper notice has been given.
4. Force majure: If there is any force majure event, defined as any event which makes
it temporarily impossible for a payment from Nguyen to Mortensen to be processed
by Nguyen’s financial institution, due to an act of nature, act of terrorism, or act of
God, the due date for payment in the particular year affected by the force majure
event shall be tolled until 14 days after the force majure causing event ends and
delivery of the amounts owed under this agreement are again able to be made by
Neguyen’s financial institution, whichever is earlier. Nguyen must provide a written
notice to Mortenson of any force majure event within three (3) days of the event.
5. Petition, Answer and Consent Judgment held in trust: Mortensen shall have in hand
and hold in trust a Petition to be filed in Texas State Court, with venue in Harris
County, Answer signed by Nguyen confessing judgment, and Consent Judgment to be
entered by the Court (all attached hereto as Exhibit A) to be filed by Mortenson ifCase 12-03412 Document 96-1 Filed in TXSB on 08/06/13 Page 5 of 30
Nguyen defaults upon his obligations in this Settlement Agreement. This Settlement
Agreement shall be attached as Exhibit A to the Petition. Mortenson is specifically
authorized to fill in the damages amounts including additional attorneys fees (to be
established by an affidavit from Mortenson’s attorney) and costs after Nguyen’s
default, case details as needed, and to take appropriate steps to enter these documents
with the Court in the event of Nguyen’s default. Specifically, if these documents are
not adequate or are incomplete, or are subject to change consistent with this
agreement (such as substitution of Plaintiff due to assignment by Mortensen),
Mortenson is authorized to prepare and file additional documents to get the consent
judgment signed by the appropriate court. Additionally, Mortenson is not required to
seek additional consent from Nguyen to file these documents in the event of default.
Mortenson is also not required to serve Nguyen with process in the state court and
Nguyen waives his right to service of these documents.
6. Defense to Consent Judgment by Nguyen: Nguyen’s only defenses to the entry of the
Consent Judgment, or as collateral attack on the execution of the consent judgment,
shall be found in this Settlement Agreement relating to the a) notice provisions, b)
actual payment received by Mortensen pursuant to the terms of the agreement, and c)
alleged errors in the calculation of damages owed to Mortensen pursuant to the terms
of this Settlement Agreement.
7. Dismissal: Upon execution of this Settlement Agreement and delivery of the
executed Consent Judgment, and upon dismissal of Marc Schwartz, Trustee’s case
against Mortenson with prejudice, Mortensen agrees to enter a dismissal of all claims
and causes of action against Nguyen in the above-captioned case. Such dismissalCase 12-03412 Document 96-1 Filed in TXSB on 08/06/13 Page 6 of 30
shall be with prejudice. Such dismissal expressly does not affect and is not meant to
affect Mortensen’s ability to file the State Court Petition, Answer and Consent
Judgment, referenced in Paragraph 5, above, to enforce this Settlement Agreement, if
Nguyen defaults on this agreement.
8. Transfer: Notice of any assignment of right to payment under this Settlement
Agreement must be given to Nguyen, in the same manner as in Paragraph 3.
9. Notices to Mortenson: All required notices to Mortenson in this agreement shall be by
US Mail to 3192 Pepperhill Road, Lexington, KY 40502 and by email to
Jack@mortensonradio.com and to Dinesh Singhal at @dineshsinghal@gmail.com
and by fax to 1-866-533-6695. Both the partics will give notices to each other of
their change of addresses, emails and attorneys promptly.
10. Binding: This agreement is binding upon parties’ heirs, agents and assignees.
Mortenson’s heirs and/or assignees shall have the rights to enforce this agreement
fully against Nguyen either in Mortenson’s name and/or in their individual names.
Agreed:
ols fis
Ted iguyen Date
Jack Mortensen, as representative of Dated
Mortensen Broadcasting Company,
Mortensen Broadcasting Co. of Texas, and
MBC of Texas-KRVA, Inc.88/05/ 20¢3ackF 14 OZdINSBIAIment 96-1 Filed FETERTBRIASIOG/13 Page 7 of 30PAGE
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
IN RE:
WILCARE, INC, CASE NO. 11-40808
Debtor,
CHAPTER 11
MARC SCHWARTZ, CHAPTER 11
TRUSTEE FOR WILCARE, INC.,
Plaintiff,
vy. ADVERSARY NO. 12-03412
MORTENSON BROADCASTING COMPANY, §
MORTENSON BROADCASTING CO.
OF TEXAS
AND MBC OF TEXAS-KVRA, INC.
Defendants-Third Party Plaintiffs.
v.
TED D. NGUYEN
Third Party Defendant.
LR EP LD UP LA LP UP LP ER LE EP ED EP RU eh te oP hn on cen
SETTLEMENT OF ALL CLAIMS AND CAUSES OF ACTION BETWEEN
NGUYEN AND MORTENSEN
This Settlement Agreement is entered into by and between Third-Party Plaintiff
Mortensen Broadcasting Company, Mortensen Broadcasting Co. of Texas, and MBC of Texas-
KRVA, Inc. (collectively, “Mortensen”) and Third-Party Defendant Ted D. Nguyen (“Nguyen”)
to settle all claims brought by Mortensen against Nguyen in the above-captioned matter.
Mortensen and Nguyen hereby state their desire to tesolve, settle and release all claims
and causes of action pursuant to the following terms and conditions:
O31
Hw08/05/201G ass Ml-OS dea seamsament 96-1 Filed RETEXSBrereO&@8/13 Page § of Brace aa/14
1. Upon execution of this Agreement, Nguyen shall deliver the Petition, Answer and
Consent Judgment attachment as Exhibit A to Mortensen. The Petition, Answer and Consent
Judgment are to be held in trust by Mortensen until further disposition in accordance with this
Agreement.
2. Payment terms: Nguyen agrees to pay to Mortensen the total amount of
$300,138.08, on the following terms:
a. Beginning on July 1, 2014, and for a period five years on July | of cach
following year, Nguyen will pay Mortensen fifteen thousand dollars ($15,000)
per year. On July 1, 2019 and each year thereafter, Nguyen will pay
Mortensen thirty-five thousand dollars ($35,000) until the total sum of
$300,138.08 is paid off.
b. This total amount or any lesser amount then owing shall not bear interest
unless and until Nguyen defaults on this settlement and the Consent Judgment
is entered. Ifthe Consent Judgment is entered, then interest of six percent per
annum, will be applied to all then-due and owing past-due amounts and be
deemed accrued beginning on the date that the last payment was received by
Mortensen. Interest at the rate of six percent will continue to accrue until the
Consent Judgment is satisfied.
c. To the extent Mortensen must file the Petition to enforce settlement agreement
and Consent Judgment, Mortensen shall be entitled to reasonable attorneys’
fees and costs, established by an affidavit from his attorney. Such fees and
costs shall also be awarded if Mortensen successfully defends a collateral
attack on the Consent Judgment. Mortenson shall also be entitled toog/05/20%3aam 12-OC4eAccemsament 96-1 Filed refeSBraneOhGS/i3 Page 9 of 3ace a5/i4
reasonable attorney fees on a successful appeal (s) of this case in the amounts
of $10,500 to the Court of Appeals and $7,000 to the Texas Supreme Court.
3. Default/Notice: The Consent Judgment shall only be entered by Mortensen upon
failure to pay by Nguyen by July 30 in any given year. At least fourteen days prior to entry of
the Consent Judgment, Mortensen shall send notice of non-receipt of payment to the following:
a, Ted Nguyen, by US mail at Everose Healthcare, 11200 Westheimer Rd., Suite
100, Houston, Texas 77042, and by email at Teddiepng 1 @live.com.
b. Tom Grace, Vorys Sater Seymour and Pease, LLP, by fax at 713-588-7050
and by email at TiGrace@vorys.com
The fourteen days notice can be send as early as July 16 of the applicable year. Mortensen
cannot seek entry of the Consent Judgment until proper notice has been given.
4. Force majure: \f there is any force majure event, defined as any event which makes
it temporarily impossible for a payment from Nguyen to Mortensen to be processed
by Nguyen’s financial institution, due to an act of nature, act of terrorism, or act of
God, the due date for payment in the particular year affected by the force majure
event shall be tolled until 14 days after the force majure causing event ends and
delivery of the amounts owed under this agreement are again able to be made by
Nguyen’s financial institution, whichever is earlier. Nguyen must provide a written
notice to Mortenson of any force majure event within three (3) days of the event.
5. Petition, Answer and Consent Judgment held in trust: Mortensen shall have in hand
and hold in trust a Petition to be filed in Texas State Court, with venue in Harris
County, Answer signed by Nguyen confessing judgment, and Consent Judgment to be
entered by the Court (all attached hereto as Exhibit A) to be filed by Mortenson if
ee08/05/20Lasesk 2034 bGasGuseasrent 96-1 Filed imebRStrermiaaa/ig Page 10 of 8Bace as/i4a
Nguyen defaults upon his cbligations in this Settlement Agreement. This Settlement
Agteement shall be attached as Exhibit A to the Petition. Mortenson is specifically
authorized to fill in the damages amounts including additional attorneys fees (to be
established by an affidavit from Mortenson’s attorney) and costs after Neuyen’s
default, case details as needed, and to take appropriate steps to enter these documents
with the Court in the event of Nguyen’s default. Specifically, if these documents are
not adequate or are incomplete, or are subject to change consistent with this
agreement (such as substitution of Plaintiff due to assignment by Mortensen),
Mortenson is authorized to prepare and file additional documents to get the consent
judgment signed by the appropriate court. Additionally, Mortenson is not required to
seck additional consent from Nguyen to file these documents in the event of default.
Mortenson is also not required to serve Nguyen with process in the state court and
Nguyen waives his right to service of these documents.
6. Defense to Consent Judgment by Nguyen: Nguyen’s only defenses to the entry of the
Consent Judgment, or as collateral attack on the execution of the consent judgment,
shall be found in this Settlement Agreement relating to the a) notice provisions, b)
actual payment received by Mortensen pursuant to the terms of the agreement, and c)
alleged errors in the calculation of damages owed to Mortensen pursuant to the terms
of this Settlement Agreement.
1
7. Dismissal: Upon execution of this Settlement Agreement and delivery of the
executed Consent Judgment, and upon dismissal of Mare Schwartz, Trustee’s case
against Mortenson with prejudice, Mortensen agrees to enter a dismissal of all claims
and causes of action against Nguyen in the above-captioned case. Such dismissal
GQ28/05/26 RS9S447034 he ashagyinent 96-1 Filed ipeLSSE PROG HY/ IS Page 11 of Bree a7/1g
shall be with prejudice. Such dismissal expressly does not affect and is not meant to
affect Mortensen’s ability to file the State Court Petition, Answer and Consent
Judgment, referenced in Paragraph 5, above, to enforce this Settlement Agreement, if
Nguyen defaults on this agreement.
8. Transfer: Notice of any assignment of right to payment under this Settlement
Agreement must be given to Nguyen, in the same manner as in Paragraph 3.
9. Notices to Mortenson: All required notices to Mortenson in this agreement shall be by
US Mail to 3192 Pepperhill Road, Lexington, KY 40502 and by email to
Jack@mortensonradio.com and to Dinesh Singhal at @dineshsinghal@gmail.com
and by fax to 1-866-533-6695. Both the parties will give notices to each other of
their change of addresses, emails and attomeys promptly.
10. Binding: This agreement is binding upon parties’ heirs, agents and assignees.
Mortenson’s heirs and/or assignees shall have the rights to enforce this agreement
fully against Nguyen either in Mortenson’s name and/or in their individual names.
Agreed:
Ted D. Nguyen ~ Dated
al Wn in #5 §-90(3
Thek Mortensen, as representative of Dated
lortensen Broadcasting Company,
Mortensen Broadcasting Co. of Texas, and
MBC of Texas-KRVA, Inc.Case 12-03412 Document 96-1 Filed in TXSB on G8/06/13 Page 12 of 30
Exhibit A to Settlement of All Claims and Causes of Action,
Mortensen adversary
pe
PT/TB F8¥d 66ST 301440 xad3a4 EBPBESSPSE Tp:St €1@2/50/88Case 12-03412 Decument 96-1 Filed in TXSB on OB/OG/13 Page 13 of 30
Exhibit A to Settlement of All Claims and Causes of Action,
Mortensen adversary
TalCase 12-03412 Decument 96-1 Filed in TXSB on OB/0G/13 Page 14 of 30
CAUSE NO.
MORTENSEN BROADCASTING § IN THE DISTRICT COURT OF
COMPANY, MORTENSEN §
BROADCASTING CO. OF TEXAS §
AND MBC OF TEXAS-KRVA, INC. §
§
Plaintiffs §
§
vs. § HARRIS COUNTY, TEXAS
§
TED D. NGUYEN §
§
§
Defendant § ____ JUDICIAL DISTRICT
PLAINTIFFS’ ORIGINAL PETITION
Plaintiffs Mortensen Broadcasting Company, Mortensen Broadcasting Co. of Texas, and
MBC of Texas-KRVA, Inc. (collectively, “Mortensen”) brings this suit to enforce a prior
settlement agreement against Defendant Ted D. Nguyen (“Nguyen”) and would show the court
as follows:
I. DISCOVERY CONTROL PLAN
1. Plaintiffs intend to conduct discovery under Level 2 pursuant to Texas Rule of
Civil Procedure 190.3.
Tl. PARTIES
2. Plaintiff Mortensen Broadcasting Company is an Ohio corporation.
3 Plaintiff Mortensen Broadcasting Co. of Texas is a Texas corporation.
4, Plaintiff MBC of Texas-KRVA, Inc. is a Texas Corporation
5. Defendant Ted D. Nguyen is a resident of Harris County, Texas.
#1276810Sv3Case 12-03412 Decument 96-1 Filed in TXSB on OB/OG/13 Page 15 of 30
Il. JURISDICTION
6. The court has jurisdiction over this case because the amount in controversy
exceeds the court’s minimum jurisdictional requirements. The parties to this suit have consented
to jurisdiction in this State pursuant to the settlement agreement attached as Exhibit A, hereto.
IV. VENUE
7. Venue is proper in Harris County, Texas because all or a substantial part of the
events and/or omissions giving rise to the claims at issue occurred in Harris County, Texas and
the Defendant has consented to venue in Harris County, Texas.
Iv. FACTS
8. Mortensen brought a third-party claim against Nguyen in Adversary No. 12-
03412, styled Mare Schwartz, Chapter 11 Trustee for Wilcare, Inc. Plaintiff v. Mortensen
Broadcasting Company, Mortensen Broadcasting Co. of Texas, and MBC of Texas-KRVA, Inc.,
Defendants-Third Party Plaintiffs v. Ted D. Nguyen, In the United States Bankruptcy Court for
the Southern District of Texas, Houston Division.
9. Mortensen’s claims against Nguyen were based on contractual indemnity.
10. Mortensen and Nguyen settled their dispute, with Mortensen and Nguyen
agreeing that Nguyen would pay Mortensen the total sum of $300,138.08, to be paid in the
following manner
a. Beginning on July 1, 2014, and for a period of five years Nguyen will pay
Mortensen fifteen thousand dollars ($15,000) per year on each July 1. After five
yearly payments, on July 1, 2019 and each year thereafter, Nguyen will pay
Mortensen thirty-five thousand dollars ($35,000) each year until the total sum of
$300,138.08 is paid off.Case 12-03412 Decument 96-1 Filed in TXSB on GB/OG/13 Page 16 of 30
b. This total amount or any lesser amount then owing shall not bear interest unless
and until Nguyen defaults on this settlement and the Consent Judgment is
entered. If the Consent Judgment is entered, then interest of six percent per
annum, will be applied to all then-duc and owing past-due amounts and be
deemed accrued beginning on the date that the last payment was received by
Mortensen. Interest at the rate of six percent per annum will continue to accrue
until the Consent Judgment is satisfied.
11. Default on the above obligation has occurred.
12. Notice has been given to Nguyen that Mortensen has not received payment per
the contractual settlement terms. At the time of the filing of this Petition, Nguyen has not
advised Mortenson of any defenses to the defaults stated in this Petition.
13. No force majure event has taken place, which has prevented the transmission of
funds by Nguyen to Mortensen, or such force majure event has ended and payment has still not
been received. Nguyen has not advised Mortenson of any force majure event until the filing of
this Petition.
14. Mortenson has incurred costs and attorney fees and costs because of Nguyen’s
default, which were agreed to by Nguyen in the settlement agreement, and will incur attorncys’
fees and costs if this case is further appealed to the Court of Appeals and/or the Texas Supreme
Court.
VI. DAMAGES
15. Nguyen has failed to pay the following amounts due and owing on the
settlement agreement: Principal: , Interest: , Attorneys feesCase 12-03412 Decument 96-1 Filed in TXSB on GB/OG/13 Page 17 of 30
and legal costs. Mortenson requests his actual damages, costs, interests, and attorneys” fees for
trial and for appeal.
VIL. Prayer
16. Mortensen prays that this court enter judgment enforcing the settlement
agreement Nguyen has defaulted on.
ACase 12-03412 Document 96-1 Filed in TXSB on 08/06/13 Page 18 of 30
Respectfully submitted,
[signature block]08/05/20 ASPst 47034 begsbagaaunent 96-1 Filed iehKOBreROBMG/13 Page 19 of Space e/14
CAUSE NO.
MORTENSEN BROADCASTING § IN THE DISTRICT COURT OF
COMPANY, MORTENSEN §
BROADCASTING CO. OF TEXAS §
AND MBC OF TEXAS-KRVA, INC. §
§
Plaintiffs §
§
vs. § HARRIS COUNTY, TEXAS
§
TED D. NGUYEN §
i
Defendant § JUDICIAL DISTRICT
PLAINTIFFS’ ORIGINAL PETITION
Plaintiffs Mortensen Broadcasting Company, Mortensen Broadcasting Co. of Texas, and
MBC of Texas-KRVA, Inc. (collectively, “Mortensen”) brings this suit to enforce a prior
settlement agreement against Defendant Ted D, Nguyen (“Nguyen”) and would show the court
as follows:
I. DISCOVERY CONTROL PLAN
1. Plaintiffs intend to conduct discovery under Level 2 pursuant to Texas Rule of
Civil Procedure 190.3.
I. PARTIES
2. Plaintiff Mortensen Broadcasting Company is an Ohio corporation.
3. Plaintiff Mortensen Broadcasting Co. of Texas is a Texas corporation.
4. Plaintiff MBC of Texas-KRVA, Inc. is a Texas Corporation
5. Defendant Ted D. Nguyen is a resident of Harris County, Texas.
12768105398/05/ 2aLaced:41034 Maashimerment 96-1 Filed ireEnKSirem@GOG/12 Page 20 of Gace asia
UI. JURISDICTION
6. The court has jurisdiction over this case because the amount in controversy
exceeds the court’s minimum jurisdictional requirements. The patties to this suit have consented
to jurisdiction in this State pursuant to the settlement agreement attached as Exhibit A, hereto.
IV. VENUE
7. Venue is proper in Harris County, Texas because all or a substantial part of the
events and/or omissions giving rise to the claims at issue occurred in Harris County, Texas and
the Defendant has consented to venue in Harris County, Texas.
IV. FACTS
8. Mortensen brought a third-party claim against Nguyen in Adversary No. 12-
03412, styled Mare Schwartz, Chapter 11 Trustee for Wilcare, Inc. Plaimiff v. Mortensen
Broadcasting Company, Mortensen Broadcasting Co. of Texas, and MBC of Texas-KRVA, Inc.,
Defendants-Third Party Plaintiffs v. Ted D. Nguyen, In the United States Bankruptcy Court for
the Southern District of Texas, Houston Division.
9. Mortensen’s claims against Nguyen were based on contractual indemnity.
10, Mortensen and Nguyen settled their dispute, with Mortensen and Nguyen
agreeing that Nguyen would pay Mortensen the total sum of $300,138.08, to be paid in the
following manner
a, Beginning on July 1, 2014, and for a period of five years Nguyen will pay
Mortensen fifteen thousand dollars ($15,000) per year on each July |. After five
yearly payments, on July 1, 2019 and each year thereafter, Nguyen will pay
Mortensen thirty-five thousand dollars ($35,000) each year until the total sum of
$300,138.08 is paid off.
y28/05/ 2dtasé did1034 beasbaagpmment 96-1 Filed imehMoirem@aewis Page 21 of SBace
18/14
6. This total amount or any lesser amount then owing shall not bear interest unless
and until Nguyen defaults on this settlement and the Consent Judgment is
entered. If the Consent Judgment is entered, then interest of six percent per
annum, will be applied to all then-due and owing past-due amounts and be
deemed accrued beginning on the date that the last payment was received by
Mortensen. Interest at the rate of six percent per annum will continue to accrue
until the Consent Judgment is satisfied.
11. Default on the above obligation has occurred.
12. Notice has been given to Nguyen that Mortensen has not received payment per
the contractual settlement terms. At the time of the filing of this Petition, Nguyen has not
advised Mortenson of any defenses to the defaults stated in this Petition.
13. No force majure event has taken place, which has prevented the transmission of
funds by Nguyen to Mortensen, or such force majure event has ended and payment has still not
been received. Nguyen has not advised Mortenson of any force majure event until the filing of
this Petition.
14. Mortenson has incurred costs and attorney fees and costs because of Nguyen’s
default, which were agreed to by Nguyen in the settlement agreement, and will incur attorneys’
fees and costs if this case is further appealed to the Court of Appeals and/or the Texas Supreme:
Court.
VEL. DAMAGES
15. Nguyen has failed to pay the following amounts due and owing on the
settlement agreement: Principal: » Interest: , Attorneys fees
, ae08/05/22 AS4S,41034 begsbyagaunent 96-1 Filed ieDXSHremOQO@GW13 Page 22 of SPace 11/14
and legal costs. Mortenson requests his actual damages, costs, interests, and attorneys” fees for
trial and for appeal.
VIM. Prayer
16. | Mortensen prays that this court enter judgment enforcing the settlement
agreement Nguyen has defaulted on.99/05/28 RSGsb gr 034 be ysbeoquTent S6-1 Filed IMEBKBReRO8OG 1S Page 22 of S@xce 1asie
Respectfully submitted,
[signature block]
OQ. oerbne~Case 12-03412 Decument 96-1 Filed in TXSB on GB/OG/13 Page 24 of 30
CAUSE NO.
MORTENSEN BROADCASTING § IN THE DISTRICT COURT OF
COMPANY, MORTENSEN §
BROADCASTING CO. OF TEXAS §
AND MBC OF TEXAS-KRVA, INC. §
§
Plaintiffs 8
§
vs. § HARRIS COUNTY, TEXAS
§
TED D. NGUYEN §
§
§
Defendant § _____ JUDICIAL DISTRICT
ORIGINAL ANSWER AND CONSENT TO JUDGMENT — HELD IN TRUST AND
FILED BY MORTENSEN BY PRIOR SETLEMENT AGREEMENT
Defendant Ted D. Nguyen (“Nguyen”) hereby answers the Petition of Plaintiffs
Mortensen Broadcasting Company, Mortensen Broadcasting Co. of Texas, and MBC of Texas-
KRVA, Inc. (collectively, “Mortensen’) and states as follows:
Nguyen consents to jurisdiction and venue in this court. Nguyen waives his rights to
personal service of the original petition, and consents to the filing of this answer by Mortenson.
Nguyen admits the allegations of Plaintiffs’ Petition and consents to judgment on the
Settlement Agreement attached as Exhibit A to Plaintiffs’ Original Petition.Case 12-03412 Document 96-1 Filed in TXSB on G8/06/13 Page 25 of 30
Respectfully submitted,
f
ThomagH. Grace
Texas tate Bar No. 00785453
JosephjM. Schreiber
Texdg State Bar No. 24037449
Vorys; Sater, Seymour and Pease LLP
700 Louisiana Street, Suite 4100
Houston, Texas 77002
Telephone: (713) 588-7034
Facsimile: (713) 588-7074
E-mail: thgrace@vorys.com
= KFTORNEYS FOR TED DIEP NGUYEN
—_—
Agreed Individually: 3 _
| Ted D. Nguyen’ “>
be lia Le
CERTIFICATE OF SERVICE
This is to certify that on this___ day of. a true and correct copy of
the foregoing document, was served pursuant to Texas Rule of Civil Procedure 21a on Ted D.
Nguyen by counsel for Mortensen, pursuant to the terms of the settlement agreement,
attached as Exhibit A to Plaintiffs’ Original Petition.
Counsel for Plaintiffs08/05/26 P 595347034 begabyageEnent 96-1 Filed BEXSE MOREY LS Page 26 Of SAace 13/14
CAUSE NO,
MORTENSEN BROADCASTING
COMPANY, MORTENSEN
BROADCASTING CO. OF TEXAS
AND MBC OF TEXAS-KRVA, INC.
IN THE DISTRICT COURT OF
Plaintiffs
VS.
HARRIS COUNTY, TEXAS
TED D. NGUYEN
Defendant JUDICIAL DISTRICT
ORIGINAL ANSWER AND CONSENT TO JUDGMENT - HELD IN TRUST AND
FILED BY MORTENSEN BY PRIOR SETLEMENT AGREEMENT
Defendant Ted D. Nguyen (“Nguyen”) hereby answers the Petition of Plaintiffs
Mortensen Broadcasting Company, Mortensen Broadcasting Co. of Texas, and MBC of Texas-
KRVA, Inc. (collectively, “Mortensen”) and states as follows:
Nguyen consents to jurisdiction and venue in this court. Nguyen waives his rights to
personal service of the original petition, and consents to the filing of this answer by Mortenson,
Nguyen admits the allegations of Plaintiffs’ Petition and consents to judgment on the
Settlement Agreement attached as Exhibit A to Plaintiffs” Original Petition.
ge29/05/26fASest 21034 easkegagunent 96-1 Filed imEDKBERREWEA IS Page 27 of SBpce asia
Agreed Individually:
Dated:
Respectfully submitted,
Thomas H. Grace
Texas State Bar No. 00785453
Joseph M. Schreiber
Texas State Bar No. 24037449
Vorys, Sater, Seymour and Pease LLP
700 Louisiana Street, Suite 4100
Houston, Texas 77002
Telephone: (713) 588-7034
Facsimile: (713) 588-7074
E-mail: thgracs
com
ATTORNEYS FOR TED DIEP NGUYEN
Ted D. Nguyen
ERTIFICATE OF SERVICE
This is to certify that on this day of a true and correct copy of
the foregoing document, was served pursuant to Texas Rule of Civil Procedure 21a on Ted D.
Nguyen by counsel for Mortensen, pursuant to the terms of the settlement agreement,
attached as Exhibit A to Plaintiffs’ Original Petition.
Counsel for PlaintiffsCase 12-03412 Decument 96-1 Filed in TXSB on OB/OG/13 Page 28 of 30
CAUSE NO.
MORTENSEN BROADCASTING § IN THE DISTRICT COURT OF
COMPANY, MORTENSEN §
BROADCASTING CO. OF TEXAS AND §&
MBC OF TEXAS-KRVA, INC. §
§
Plaintiffs §
§
vs. § HARRIS COUNTY, TEXAS
§
TED D. NGUYEN §
§
§
Defendant § ___ JUDICIAL DISTRICT
CONSENT JUDGMENT
Third-party Defendant Ted Nguyen (“Nguyen”) hereby consents to the following
judgment being entered by the Court, in favor of Third-Party Plaintiff Mortensen Broadcasting
Company, Mortensen Broadcasting Co. of Texas, and MBC of Texas-KRVA, Inc. (collectively,
“Mortensen”);
The Court finds the following:
1. Nguyen has not paid the agreed settlement amounts listed and described in the August
5, 2013 Settlement Agreement entered into between Nguyen and Mortenson.
2. Nguyen was given notice by Mortensen pursuant paragraph 3 of the Settlement
Agreement;
3. No force majure event has taken place to delay the payment due date, as described 4
of the Settlement Agreement.Case 12-03412 Decument 96-1 Filed in TXSB on GB/OG/13 Page 29 of 30
Therefore, The court renders judgment for Mortenson Broadcasting Company, Mortenson
Broadcasting Co. of Texas and MBC of Texas-KRVA, Inc.
4. The court orders that plaintiff, Mortenson recover from defendant, Ted Nguyen the sum
of $ , prejudgment interest on that sum at the annual rate of six percent,
in the sum of $ ; post-judgment interest on the total sum at the annual rate of
six percent, and court costs.
5. Mortenson requested attorney fees based on parties’ settlement agreement and based on
Texas Civil Practice & Remedies Code chapter 38. Attorney fees were proved by the affidavit
by Mortenson’s attorney as agreed upon by the parties, which established reasonable and
necessary attorney fees in the amount of $ . The court orders Nguyen to pay
Mortenson $ for attorney fees for the trial stage, and $10,500 in attorney fees
in the event of a successful appeal to the Court of Appeals, and $7,000 in attorneys fees in the
event of a successful appeal to the Texas Supreme Court.
6. This judgment is final of all claims and all parties and claims. Nguyen can appeal this
judgment limited to a collateral attack only to the extent found in this Settlement Agreement for
actual payment pursuant to the Settlement Agreement, inadequate notice, non-application of
Nguyen payments as credits, and alleged errors in the calculation of damages owed to Mortensen
pursuant to the terms of the Settlement Agreement.
7, The court orders execution to issue for this judgment.
TNCase 12-03412 Decument 96-1 Filed in TXSB on GB/OG/13 Page 30 of 30
SIGNED on 52.
Approved as to content and form:
he
DISTRICT JUDGE
elie
Ted D. Nguyen, by and through his
Attorney Tom Grace
Dated’ 7
8) ¢)13
Tack ortensen, as representative of
Mortensen Broadcasting Company,
Mortensen Broadcasting Co. of Texas, and
MBC of Texas-KRVA, Inc., by and through
their attorney Dinesh Singhal
Dated
Preview
Case 12-03442 PHIF 1S 46°) Cour opgegs Page 2 of 30 IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION IN RE: WILCARE, INC, Debtor, CASE NO. 11-40808 CHAPTER 11 MARC SCHWARTZ, CHAPTER 11 TRUSTEE FOR WILCARE, INC., Plaintiff, v. ADVERSARY NO. 12-03412 MORTENSON BROADCASTING COMPANY, MORTENSON BROADCASTING CO. OF TEXAS AND MBC OF TEXAS-KVRA, INC. Defendants-Third Party Plaintiffs. v. TED D. NGUYEN Third Party Defendant. 2 OO LD LP OL LP LP LP UP UD LP UD OD LOD OD LD) UD LD SETTLEMENT OF ALL CLAIMS AND CAUSES OF ACTION BETWEEN NGUYEN AND MORTENSEN This Settlement Agreement is entered into by and between Third-Party Plaintiff Mortensen Broadcasting Company, Mortensen Broadcasting Co. of Texas, and MBC of Texas- KRVA, Inc, (collectively, “Mortensen”) and Third-Party Defendant Ted D. Nguyen (“Nguyen”) to settle all claims brought by Mortensen against Nguyen in the above-captioned matter. Mortensen and Nguyen hereby state their desire to resolve, settle and release all claims and causes of action pursuant to the following terms and conditions:Case 12-03412 Document 96-1 Filed in TXS8 on O8/06/13 Page 3 af 30 1. Upon execution of this Agreement, Nguyen shall deliver the Petition, Answer and Consent Judgment attachment as Exhibit A to Mortensen. The Petition, Answer and Consent Judgment are to be held in trust by Mortensen until further disposition in accordance with this Agreement. 2. Payment terms: Nguyen agrees to pay to Mortensen the total amount of $300,138.08, on the following terms: a. Beginning on July 1, 2014, and for a period five years on July 1 of each following year, Nguycn will pay Mortensen fifteen thousand dollars ($15,000) per year. On July 1, 2019 and each year thereafter, Nguyen will pay Mortensen thirty-five thousand dollars ($35,000) until the total sum of $300,138.08 is paid off. b. This total amount or any lesser amount then owing shall not bear interest unless and until Nguyen defaults on this settlement and the Consent Judgment is entered, If the Consent Judgment is entered, then interest of six percent pcr annum, will be applied to all then-due and owing past-due amounts and be deemed accrued beginning on the date that the last payment was received by Mortensen. Interest at the rate of six percent will continue to accrue until the Consent Judgment is satisfied. c. To the extent Mortensen must file the Petition to enforce settlement agreement and Consent Judgment, Mortensen shall be entitled to reasonable attorneys” fees and costs, established by an affidavit from his attorney. Such fees and costs shall also be awarded if Mortensen successfully defends a collateral attack on the Consent Judgment. Mortenson shall also be entitled toCase 12-03412 Document 96-1 Filed in TXSB on 08/06/13 Page 4 of 30 reasonable attorney fees on a successful appeal (s) of this case in the amounts of $10,500 to the Court of Appeals and $7,000 to the Texas Supreme Court. 3. Default/Notice: The Consent Judgment shall only be entered by Mortensen upon failure to pay by Nguyen by July 30 in any given year. At least fourtcen days prior to entry of the Consent Judgment, Mortensen shall send notice of non-receipt of payment to the following: a. Ted Nguyen, by US mail at Everose Healthcare, 11200 Westheimer Rd., Suite 100, Houston, Texas 77042, and by email at Teddiepng! @live.com. b. Tom Grace, Vorys Sater Seymour and Pease, LLP, by fax at 713-588-7050 and by email at THGrace@vorys.com The fourteen days notice can be send as early as July 16 of the applicable year. Mortensen cannot seek entry of the Consent Judgment until proper notice has been given. 4. Force majure: If there is any force majure event, defined as any event which makes it temporarily impossible for a payment from Nguyen to Mortensen to be processed by Nguyen’s financial institution, due to an act of nature, act of terrorism, or act of God, the due date for payment in the particular year affected by the force majure event shall be tolled until 14 days after the force majure causing event ends and delivery of the amounts owed under this agreement are again able to be made by Neguyen’s financial institution, whichever is earlier. Nguyen must provide a written notice to Mortenson of any force majure event within three (3) days of the event. 5. Petition, Answer and Consent Judgment held in trust: Mortensen shall have in hand and hold in trust a Petition to be filed in Texas State Court, with venue in Harris County, Answer signed by Nguyen confessing judgment, and Consent Judgment to be entered by the Court (all attached hereto as Exhibit A) to be filed by Mortenson ifCase 12-03412 Document 96-1 Filed in TXSB on 08/06/13 Page 5 of 30 Nguyen defaults upon his obligations in this Settlement Agreement. This Settlement Agreement shall be attached as Exhibit A to the Petition. Mortenson is specifically authorized to fill in the damages amounts including additional attorneys fees (to be established by an affidavit from Mortenson’s attorney) and costs after Nguyen’s default, case details as needed, and to take appropriate steps to enter these documents with the Court in the event of Nguyen’s default. Specifically, if these documents are not adequate or are incomplete, or are subject to change consistent with this agreement (such as substitution of Plaintiff due to assignment by Mortensen), Mortenson is authorized to prepare and file additional documents to get the consent judgment signed by the appropriate court. Additionally, Mortenson is not required to seek additional consent from Nguyen to file these documents in the event of default. Mortenson is also not required to serve Nguyen with process in the state court and Nguyen waives his right to service of these documents. 6. Defense to Consent Judgment by Nguyen: Nguyen’s only defenses to the entry of the Consent Judgment, or as collateral attack on the execution of the consent judgment, shall be found in this Settlement Agreement relating to the a) notice provisions, b) actual payment received by Mortensen pursuant to the terms of the agreement, and c) alleged errors in the calculation of damages owed to Mortensen pursuant to the terms of this Settlement Agreement. 7. Dismissal: Upon execution of this Settlement Agreement and delivery of the executed Consent Judgment, and upon dismissal of Marc Schwartz, Trustee’s case against Mortenson with prejudice, Mortensen agrees to enter a dismissal of all claims and causes of action against Nguyen in the above-captioned case. Such dismissalCase 12-03412 Document 96-1 Filed in TXSB on 08/06/13 Page 6 of 30 shall be with prejudice. Such dismissal expressly does not affect and is not meant to affect Mortensen’s ability to file the State Court Petition, Answer and Consent Judgment, referenced in Paragraph 5, above, to enforce this Settlement Agreement, if Nguyen defaults on this agreement. 8. Transfer: Notice of any assignment of right to payment under this Settlement Agreement must be given to Nguyen, in the same manner as in Paragraph 3. 9. Notices to Mortenson: All required notices to Mortenson in this agreement shall be by US Mail to 3192 Pepperhill Road, Lexington, KY 40502 and by email to Jack@mortensonradio.com and to Dinesh Singhal at @dineshsinghal@gmail.com and by fax to 1-866-533-6695. Both the partics will give notices to each other of their change of addresses, emails and attorneys promptly. 10. Binding: This agreement is binding upon parties’ heirs, agents and assignees. Mortenson’s heirs and/or assignees shall have the rights to enforce this agreement fully against Nguyen either in Mortenson’s name and/or in their individual names. Agreed: ols fis Ted iguyen Date Jack Mortensen, as representative of Dated Mortensen Broadcasting Company, Mortensen Broadcasting Co. of Texas, and MBC of Texas-KRVA, Inc.88/05/ 20¢3ackF 14 OZdINSBIAIment 96-1 Filed FETERTBRIASIOG/13 Page 7 of 30PAGE IN THE UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION IN RE: WILCARE, INC, CASE NO. 11-40808 Debtor, CHAPTER 11 MARC SCHWARTZ, CHAPTER 11 TRUSTEE FOR WILCARE, INC., Plaintiff, vy. ADVERSARY NO. 12-03412 MORTENSON BROADCASTING COMPANY, § MORTENSON BROADCASTING CO. OF TEXAS AND MBC OF TEXAS-KVRA, INC. Defendants-Third Party Plaintiffs. v. TED D. NGUYEN Third Party Defendant. LR EP LD UP LA LP UP LP ER LE EP ED EP RU eh te oP hn on cen SETTLEMENT OF ALL CLAIMS AND CAUSES OF ACTION BETWEEN NGUYEN AND MORTENSEN This Settlement Agreement is entered into by and between Third-Party Plaintiff Mortensen Broadcasting Company, Mortensen Broadcasting Co. of Texas, and MBC of Texas- KRVA, Inc. (collectively, “Mortensen”) and Third-Party Defendant Ted D. Nguyen (“Nguyen”) to settle all claims brought by Mortensen against Nguyen in the above-captioned matter. Mortensen and Nguyen hereby state their desire to tesolve, settle and release all claims and causes of action pursuant to the following terms and conditions: O31 Hw08/05/201G ass Ml-OS dea seamsament 96-1 Filed RETEXSBrereO&@8/13 Page § of Brace aa/14 1. Upon execution of this Agreement, Nguyen shall deliver the Petition, Answer and Consent Judgment attachment as Exhibit A to Mortensen. The Petition, Answer and Consent Judgment are to be held in trust by Mortensen until further disposition in accordance with this Agreement. 2. Payment terms: Nguyen agrees to pay to Mortensen the total amount of $300,138.08, on the following terms: a. Beginning on July 1, 2014, and for a period five years on July | of cach following year, Nguyen will pay Mortensen fifteen thousand dollars ($15,000) per year. On July 1, 2019 and each year thereafter, Nguyen will pay Mortensen thirty-five thousand dollars ($35,000) until the total sum of $300,138.08 is paid off. b. This total amount or any lesser amount then owing shall not bear interest unless and until Nguyen defaults on this settlement and the Consent Judgment is entered. Ifthe Consent Judgment is entered, then interest of six percent per annum, will be applied to all then-due and owing past-due amounts and be deemed accrued beginning on the date that the last payment was received by Mortensen. Interest at the rate of six percent will continue to accrue until the Consent Judgment is satisfied. c. To the extent Mortensen must file the Petition to enforce settlement agreement and Consent Judgment, Mortensen shall be entitled to reasonable attorneys’ fees and costs, established by an affidavit from his attorney. Such fees and costs shall also be awarded if Mortensen successfully defends a collateral attack on the Consent Judgment. Mortenson shall also be entitled toog/05/20%3aam 12-OC4eAccemsament 96-1 Filed refeSBraneOhGS/i3 Page 9 of 3ace a5/i4 reasonable attorney fees on a successful appeal (s) of this case in the amounts of $10,500 to the Court of Appeals and $7,000 to the Texas Supreme Court. 3. Default/Notice: The Consent Judgment shall only be entered by Mortensen upon failure to pay by Nguyen by July 30 in any given year. At least fourteen days prior to entry of the Consent Judgment, Mortensen shall send notice of non-receipt of payment to the following: a, Ted Nguyen, by US mail at Everose Healthcare, 11200 Westheimer Rd., Suite 100, Houston, Texas 77042, and by email at Teddiepng 1 @live.com. b. Tom Grace, Vorys Sater Seymour and Pease, LLP, by fax at 713-588-7050 and by email at TiGrace@vorys.com The fourteen days notice can be send as early as July 16 of the applicable year. Mortensen cannot seek entry of the Consent Judgment until proper notice has been given. 4. Force majure: \f there is any force majure event, defined as any event which makes it temporarily impossible for a payment from Nguyen to Mortensen to be processed by Nguyen’s financial institution, due to an act of nature, act of terrorism, or act of God, the due date for payment in the particular year affected by the force majure event shall be tolled until 14 days after the force majure causing event ends and delivery of the amounts owed under this agreement are again able to be made by Nguyen’s financial institution, whichever is earlier. Nguyen must provide a written notice to Mortenson of any force majure event within three (3) days of the event. 5. Petition, Answer and Consent Judgment held in trust: Mortensen shall have in hand and hold in trust a Petition to be filed in Texas State Court, with venue in Harris County, Answer signed by Nguyen confessing judgment, and Consent Judgment to be entered by the Court (all attached hereto as Exhibit A) to be filed by Mortenson if ee08/05/20Lasesk 2034 bGasGuseasrent 96-1 Filed imebRStrermiaaa/ig Page 10 of 8Bace as/i4a Nguyen defaults upon his cbligations in this Settlement Agreement. This Settlement Agteement shall be attached as Exhibit A to the Petition. Mortenson is specifically authorized to fill in the damages amounts including additional attorneys fees (to be established by an affidavit from Mortenson’s attorney) and costs after Neuyen’s default, case details as needed, and to take appropriate steps to enter these documents with the Court in the event of Nguyen’s default. Specifically, if these documents are not adequate or are incomplete, or are subject to change consistent with this agreement (such as substitution of Plaintiff due to assignment by Mortensen), Mortenson is authorized to prepare and file additional documents to get the consent judgment signed by the appropriate court. Additionally, Mortenson is not required to seck additional consent from Nguyen to file these documents in the event of default. Mortenson is also not required to serve Nguyen with process in the state court and Nguyen waives his right to service of these documents. 6. Defense to Consent Judgment by Nguyen: Nguyen’s only defenses to the entry of the Consent Judgment, or as collateral attack on the execution of the consent judgment, shall be found in this Settlement Agreement relating to the a) notice provisions, b) actual payment received by Mortensen pursuant to the terms of the agreement, and c) alleged errors in the calculation of damages owed to Mortensen pursuant to the terms of this Settlement Agreement. 1 7. Dismissal: Upon execution of this Settlement Agreement and delivery of the executed Consent Judgment, and upon dismissal of Mare Schwartz, Trustee’s case against Mortenson with prejudice, Mortensen agrees to enter a dismissal of all claims and causes of action against Nguyen in the above-captioned case. Such dismissal GQ28/05/26 RS9S447034 he ashagyinent 96-1 Filed ipeLSSE PROG HY/ IS Page 11 of Bree a7/1g shall be with prejudice. Such dismissal expressly does not affect and is not meant to affect Mortensen’s ability to file the State Court Petition, Answer and Consent Judgment, referenced in Paragraph 5, above, to enforce this Settlement Agreement, if Nguyen defaults on this agreement. 8. Transfer: Notice of any assignment of right to payment under this Settlement Agreement must be given to Nguyen, in the same manner as in Paragraph 3. 9. Notices to Mortenson: All required notices to Mortenson in this agreement shall be by US Mail to 3192 Pepperhill Road, Lexington, KY 40502 and by email to Jack@mortensonradio.com and to Dinesh Singhal at @dineshsinghal@gmail.com and by fax to 1-866-533-6695. Both the parties will give notices to each other of their change of addresses, emails and attomeys promptly. 10. Binding: This agreement is binding upon parties’ heirs, agents and assignees. Mortenson’s heirs and/or assignees shall have the rights to enforce this agreement fully against Nguyen either in Mortenson’s name and/or in their individual names. Agreed: Ted D. Nguyen ~ Dated al Wn in #5 §-90(3 Thek Mortensen, as representative of Dated lortensen Broadcasting Company, Mortensen Broadcasting Co. of Texas, and MBC of Texas-KRVA, Inc.Case 12-03412 Document 96-1 Filed in TXSB on G8/06/13 Page 12 of 30 Exhibit A to Settlement of All Claims and Causes of Action, Mortensen adversary pe PT/TB F8¥d 66ST 301440 xad3a4 EBPBESSPSE Tp:St €1@2/50/88Case 12-03412 Decument 96-1 Filed in TXSB on OB/OG/13 Page 13 of 30 Exhibit A to Settlement of All Claims and Causes of Action, Mortensen adversary TalCase 12-03412 Decument 96-1 Filed in TXSB on OB/0G/13 Page 14 of 30 CAUSE NO. MORTENSEN BROADCASTING § IN THE DISTRICT COURT OF COMPANY, MORTENSEN § BROADCASTING CO. OF TEXAS § AND MBC OF TEXAS-KRVA, INC. § § Plaintiffs § § vs. § HARRIS COUNTY, TEXAS § TED D. NGUYEN § § § Defendant § ____ JUDICIAL DISTRICT PLAINTIFFS’ ORIGINAL PETITION Plaintiffs Mortensen Broadcasting Company, Mortensen Broadcasting Co. of Texas, and MBC of Texas-KRVA, Inc. (collectively, “Mortensen”) brings this suit to enforce a prior settlement agreement against Defendant Ted D. Nguyen (“Nguyen”) and would show the court as follows: I. DISCOVERY CONTROL PLAN 1. Plaintiffs intend to conduct discovery under Level 2 pursuant to Texas Rule of Civil Procedure 190.3. Tl. PARTIES 2. Plaintiff Mortensen Broadcasting Company is an Ohio corporation. 3 Plaintiff Mortensen Broadcasting Co. of Texas is a Texas corporation. 4, Plaintiff MBC of Texas-KRVA, Inc. is a Texas Corporation 5. Defendant Ted D. Nguyen is a resident of Harris County, Texas. #1276810Sv3Case 12-03412 Decument 96-1 Filed in TXSB on OB/OG/13 Page 15 of 30 Il. JURISDICTION 6. The court has jurisdiction over this case because the amount in controversy exceeds the court’s minimum jurisdictional requirements. The parties to this suit have consented to jurisdiction in this State pursuant to the settlement agreement attached as Exhibit A, hereto. IV. VENUE 7. Venue is proper in Harris County, Texas because all or a substantial part of the events and/or omissions giving rise to the claims at issue occurred in Harris County, Texas and the Defendant has consented to venue in Harris County, Texas. Iv. FACTS 8. Mortensen brought a third-party claim against Nguyen in Adversary No. 12- 03412, styled Mare Schwartz, Chapter 11 Trustee for Wilcare, Inc. Plaintiff v. Mortensen Broadcasting Company, Mortensen Broadcasting Co. of Texas, and MBC of Texas-KRVA, Inc., Defendants-Third Party Plaintiffs v. Ted D. Nguyen, In the United States Bankruptcy Court for the Southern District of Texas, Houston Division. 9. Mortensen’s claims against Nguyen were based on contractual indemnity. 10. Mortensen and Nguyen settled their dispute, with Mortensen and Nguyen agreeing that Nguyen would pay Mortensen the total sum of $300,138.08, to be paid in the following manner a. Beginning on July 1, 2014, and for a period of five years Nguyen will pay Mortensen fifteen thousand dollars ($15,000) per year on each July 1. After five yearly payments, on July 1, 2019 and each year thereafter, Nguyen will pay Mortensen thirty-five thousand dollars ($35,000) each year until the total sum of $300,138.08 is paid off.Case 12-03412 Decument 96-1 Filed in TXSB on GB/OG/13 Page 16 of 30 b. This total amount or any lesser amount then owing shall not bear interest unless and until Nguyen defaults on this settlement and the Consent Judgment is entered. If the Consent Judgment is entered, then interest of six percent per annum, will be applied to all then-duc and owing past-due amounts and be deemed accrued beginning on the date that the last payment was received by Mortensen. Interest at the rate of six percent per annum will continue to accrue until the Consent Judgment is satisfied. 11. Default on the above obligation has occurred. 12. Notice has been given to Nguyen that Mortensen has not received payment per the contractual settlement terms. At the time of the filing of this Petition, Nguyen has not advised Mortenson of any defenses to the defaults stated in this Petition. 13. No force majure event has taken place, which has prevented the transmission of funds by Nguyen to Mortensen, or such force majure event has ended and payment has still not been received. Nguyen has not advised Mortenson of any force majure event until the filing of this Petition. 14. Mortenson has incurred costs and attorney fees and costs because of Nguyen’s default, which were agreed to by Nguyen in the settlement agreement, and will incur attorncys’ fees and costs if this case is further appealed to the Court of Appeals and/or the Texas Supreme Court. VI. DAMAGES 15. Nguyen has failed to pay the following amounts due and owing on the settlement agreement: Principal: , Interest: , Attorneys feesCase 12-03412 Decument 96-1 Filed in TXSB on GB/OG/13 Page 17 of 30 and legal costs. Mortenson requests his actual damages, costs, interests, and attorneys” fees for trial and for appeal. VIL. Prayer 16. Mortensen prays that this court enter judgment enforcing the settlement agreement Nguyen has defaulted on. ACase 12-03412 Document 96-1 Filed in TXSB on 08/06/13 Page 18 of 30 Respectfully submitted, [signature block]08/05/20 ASPst 47034 begsbagaaunent 96-1 Filed iehKOBreROBMG/13 Page 19 of Space e/14 CAUSE NO. MORTENSEN BROADCASTING § IN THE DISTRICT COURT OF COMPANY, MORTENSEN § BROADCASTING CO. OF TEXAS § AND MBC OF TEXAS-KRVA, INC. § § Plaintiffs § § vs. § HARRIS COUNTY, TEXAS § TED D. NGUYEN § i Defendant § JUDICIAL DISTRICT PLAINTIFFS’ ORIGINAL PETITION Plaintiffs Mortensen Broadcasting Company, Mortensen Broadcasting Co. of Texas, and MBC of Texas-KRVA, Inc. (collectively, “Mortensen”) brings this suit to enforce a prior settlement agreement against Defendant Ted D, Nguyen (“Nguyen”) and would show the court as follows: I. DISCOVERY CONTROL PLAN 1. Plaintiffs intend to conduct discovery under Level 2 pursuant to Texas Rule of Civil Procedure 190.3. I. PARTIES 2. Plaintiff Mortensen Broadcasting Company is an Ohio corporation. 3. Plaintiff Mortensen Broadcasting Co. of Texas is a Texas corporation. 4. Plaintiff MBC of Texas-KRVA, Inc. is a Texas Corporation 5. Defendant Ted D. Nguyen is a resident of Harris County, Texas. 12768105398/05/ 2aLaced:41034 Maashimerment 96-1 Filed ireEnKSirem@GOG/12 Page 20 of Gace asia UI. JURISDICTION 6. The court has jurisdiction over this case because the amount in controversy exceeds the court’s minimum jurisdictional requirements. The patties to this suit have consented to jurisdiction in this State pursuant to the settlement agreement attached as Exhibit A, hereto. IV. VENUE 7. Venue is proper in Harris County, Texas because all or a substantial part of the events and/or omissions giving rise to the claims at issue occurred in Harris County, Texas and the Defendant has consented to venue in Harris County, Texas. IV. FACTS 8. Mortensen brought a third-party claim against Nguyen in Adversary No. 12- 03412, styled Mare Schwartz, Chapter 11 Trustee for Wilcare, Inc. Plaimiff v. Mortensen Broadcasting Company, Mortensen Broadcasting Co. of Texas, and MBC of Texas-KRVA, Inc., Defendants-Third Party Plaintiffs v. Ted D. Nguyen, In the United States Bankruptcy Court for the Southern District of Texas, Houston Division. 9. Mortensen’s claims against Nguyen were based on contractual indemnity. 10, Mortensen and Nguyen settled their dispute, with Mortensen and Nguyen agreeing that Nguyen would pay Mortensen the total sum of $300,138.08, to be paid in the following manner a, Beginning on July 1, 2014, and for a period of five years Nguyen will pay Mortensen fifteen thousand dollars ($15,000) per year on each July |. After five yearly payments, on July 1, 2019 and each year thereafter, Nguyen will pay Mortensen thirty-five thousand dollars ($35,000) each year until the total sum of $300,138.08 is paid off. y28/05/ 2dtasé did1034 beasbaagpmment 96-1 Filed imehMoirem@aewis Page 21 of SBace 18/14 6. This total amount or any lesser amount then owing shall not bear interest unless and until Nguyen defaults on this settlement and the Consent Judgment is entered. If the Consent Judgment is entered, then interest of six percent per annum, will be applied to all then-due and owing past-due amounts and be deemed accrued beginning on the date that the last payment was received by Mortensen. Interest at the rate of six percent per annum will continue to accrue until the Consent Judgment is satisfied. 11. Default on the above obligation has occurred. 12. Notice has been given to Nguyen that Mortensen has not received payment per the contractual settlement terms. At the time of the filing of this Petition, Nguyen has not advised Mortenson of any defenses to the defaults stated in this Petition. 13. No force majure event has taken place, which has prevented the transmission of funds by Nguyen to Mortensen, or such force majure event has ended and payment has still not been received. Nguyen has not advised Mortenson of any force majure event until the filing of this Petition. 14. Mortenson has incurred costs and attorney fees and costs because of Nguyen’s default, which were agreed to by Nguyen in the settlement agreement, and will incur attorneys’ fees and costs if this case is further appealed to the Court of Appeals and/or the Texas Supreme: Court. VEL. DAMAGES 15. Nguyen has failed to pay the following amounts due and owing on the settlement agreement: Principal: » Interest: , Attorneys fees , ae08/05/22 AS4S,41034 begsbyagaunent 96-1 Filed ieDXSHremOQO@GW13 Page 22 of SPace 11/14 and legal costs. Mortenson requests his actual damages, costs, interests, and attorneys” fees for trial and for appeal. VIM. Prayer 16. | Mortensen prays that this court enter judgment enforcing the settlement agreement Nguyen has defaulted on.99/05/28 RSGsb gr 034 be ysbeoquTent S6-1 Filed IMEBKBReRO8OG 1S Page 22 of S@xce 1asie Respectfully submitted, [signature block] OQ. oerbne~Case 12-03412 Decument 96-1 Filed in TXSB on GB/OG/13 Page 24 of 30 CAUSE NO. MORTENSEN BROADCASTING § IN THE DISTRICT COURT OF COMPANY, MORTENSEN § BROADCASTING CO. OF TEXAS § AND MBC OF TEXAS-KRVA, INC. § § Plaintiffs 8 § vs. § HARRIS COUNTY, TEXAS § TED D. NGUYEN § § § Defendant § _____ JUDICIAL DISTRICT ORIGINAL ANSWER AND CONSENT TO JUDGMENT — HELD IN TRUST AND FILED BY MORTENSEN BY PRIOR SETLEMENT AGREEMENT Defendant Ted D. Nguyen (“Nguyen”) hereby answers the Petition of Plaintiffs Mortensen Broadcasting Company, Mortensen Broadcasting Co. of Texas, and MBC of Texas- KRVA, Inc. (collectively, “Mortensen’) and states as follows: Nguyen consents to jurisdiction and venue in this court. Nguyen waives his rights to personal service of the original petition, and consents to the filing of this answer by Mortenson. Nguyen admits the allegations of Plaintiffs’ Petition and consents to judgment on the Settlement Agreement attached as Exhibit A to Plaintiffs’ Original Petition.Case 12-03412 Document 96-1 Filed in TXSB on G8/06/13 Page 25 of 30 Respectfully submitted, f ThomagH. Grace Texas tate Bar No. 00785453 JosephjM. Schreiber Texdg State Bar No. 24037449 Vorys; Sater, Seymour and Pease LLP 700 Louisiana Street, Suite 4100 Houston, Texas 77002 Telephone: (713) 588-7034 Facsimile: (713) 588-7074 E-mail: thgrace@vorys.com = KFTORNEYS FOR TED DIEP NGUYEN —_— Agreed Individually: 3 _ | Ted D. Nguyen’ “> be lia Le CERTIFICATE OF SERVICE This is to certify that on this___ day of. a true and correct copy of the foregoing document, was served pursuant to Texas Rule of Civil Procedure 21a on Ted D. Nguyen by counsel for Mortensen, pursuant to the terms of the settlement agreement, attached as Exhibit A to Plaintiffs’ Original Petition. Counsel for Plaintiffs08/05/26 P 595347034 begabyageEnent 96-1 Filed BEXSE MOREY LS Page 26 Of SAace 13/14 CAUSE NO, MORTENSEN BROADCASTING COMPANY, MORTENSEN BROADCASTING CO. OF TEXAS AND MBC OF TEXAS-KRVA, INC. IN THE DISTRICT COURT OF Plaintiffs VS. HARRIS COUNTY, TEXAS TED D. NGUYEN Defendant JUDICIAL DISTRICT ORIGINAL ANSWER AND CONSENT TO JUDGMENT - HELD IN TRUST AND FILED BY MORTENSEN BY PRIOR SETLEMENT AGREEMENT Defendant Ted D. Nguyen (“Nguyen”) hereby answers the Petition of Plaintiffs Mortensen Broadcasting Company, Mortensen Broadcasting Co. of Texas, and MBC of Texas- KRVA, Inc. (collectively, “Mortensen”) and states as follows: Nguyen consents to jurisdiction and venue in this court. Nguyen waives his rights to personal service of the original petition, and consents to the filing of this answer by Mortenson, Nguyen admits the allegations of Plaintiffs’ Petition and consents to judgment on the Settlement Agreement attached as Exhibit A to Plaintiffs” Original Petition. ge29/05/26fASest 21034 easkegagunent 96-1 Filed imEDKBERREWEA IS Page 27 of SBpce asia Agreed Individually: Dated: Respectfully submitted, Thomas H. Grace Texas State Bar No. 00785453 Joseph M. Schreiber Texas State Bar No. 24037449 Vorys, Sater, Seymour and Pease LLP 700 Louisiana Street, Suite 4100 Houston, Texas 77002 Telephone: (713) 588-7034 Facsimile: (713) 588-7074 E-mail: thgracs com ATTORNEYS FOR TED DIEP NGUYEN Ted D. Nguyen ERTIFICATE OF SERVICE This is to certify that on this day of a true and correct copy of the foregoing document, was served pursuant to Texas Rule of Civil Procedure 21a on Ted D. Nguyen by counsel for Mortensen, pursuant to the terms of the settlement agreement, attached as Exhibit A to Plaintiffs’ Original Petition. Counsel for PlaintiffsCase 12-03412 Decument 96-1 Filed in TXSB on OB/OG/13 Page 28 of 30 CAUSE NO. MORTENSEN BROADCASTING § IN THE DISTRICT COURT OF COMPANY, MORTENSEN § BROADCASTING CO. OF TEXAS AND §& MBC OF TEXAS-KRVA, INC. § § Plaintiffs § § vs. § HARRIS COUNTY, TEXAS § TED D. NGUYEN § § § Defendant § ___ JUDICIAL DISTRICT CONSENT JUDGMENT Third-party Defendant Ted Nguyen (“Nguyen”) hereby consents to the following judgment being entered by the Court, in favor of Third-Party Plaintiff Mortensen Broadcasting Company, Mortensen Broadcasting Co. of Texas, and MBC of Texas-KRVA, Inc. (collectively, “Mortensen”); The Court finds the following: 1. Nguyen has not paid the agreed settlement amounts listed and described in the August 5, 2013 Settlement Agreement entered into between Nguyen and Mortenson. 2. Nguyen was given notice by Mortensen pursuant paragraph 3 of the Settlement Agreement; 3. No force majure event has taken place to delay the payment due date, as described 4 of the Settlement Agreement.Case 12-03412 Decument 96-1 Filed in TXSB on GB/OG/13 Page 29 of 30 Therefore, The court renders judgment for Mortenson Broadcasting Company, Mortenson Broadcasting Co. of Texas and MBC of Texas-KRVA, Inc. 4. The court orders that plaintiff, Mortenson recover from defendant, Ted Nguyen the sum of $ , prejudgment interest on that sum at the annual rate of six percent, in the sum of $ ; post-judgment interest on the total sum at the annual rate of six percent, and court costs. 5. Mortenson requested attorney fees based on parties’ settlement agreement and based on Texas Civil Practice & Remedies Code chapter 38. Attorney fees were proved by the affidavit by Mortenson’s attorney as agreed upon by the parties, which established reasonable and necessary attorney fees in the amount of $ . The court orders Nguyen to pay Mortenson $ for attorney fees for the trial stage, and $10,500 in attorney fees in the event of a successful appeal to the Court of Appeals, and $7,000 in attorneys fees in the event of a successful appeal to the Texas Supreme Court. 6. This judgment is final of all claims and all parties and claims. Nguyen can appeal this judgment limited to a collateral attack only to the extent found in this Settlement Agreement for actual payment pursuant to the Settlement Agreement, inadequate notice, non-application of Nguyen payments as credits, and alleged errors in the calculation of damages owed to Mortensen pursuant to the terms of the Settlement Agreement. 7, The court orders execution to issue for this judgment. TNCase 12-03412 Decument 96-1 Filed in TXSB on GB/OG/13 Page 30 of 30 SIGNED on 52. Approved as to content and form: he DISTRICT JUDGE elie Ted D. Nguyen, by and through his Attorney Tom Grace Dated’ 7 8) ¢)13 Tack ortensen, as representative of Mortensen Broadcasting Company, Mortensen Broadcasting Co. of Texas, and MBC of Texas-KRVA, Inc., by and through their attorney Dinesh Singhal Dated