Opinion
Case No. 399-02649, Jointly Administered, Adv. Proc. No. 301-0103A
February 18, 2004
Paul G. Jennings, Esq., Beth A. Dunning, Esq., Bass, Berry Sims PLC, Nashville, TN,
Charles F. Smith, Esq., Frances P. Kao, Esq., Skadden, Arps, Slate, Meagher Flora (Illinois), Chicago, IL, for Debtors;
Lawrence C. Gottlieb, Esq., Eric J. Haber, Esq., Kronish Lieb Weiner Hellman LLP, New York, NY, for Defendant Globe Newspaper Company, Inc. d/b/a Boston Globe,
AGREED ORDER OF SETTLEMENT AND DISMISSAL
Upon the agreement of the parties that this adversary proceeding has been resolved and should be dismissed, the Court FINDS, ADJUDGES AND DECREES:
A. Prior to March 14, 2001, the Plaintiffs, Service Merchandise Company, Inc. ("Service Merchandise") and 31 of its affiliates (the "Affiliate Debtors"; collectively, with Service Merchandise, the "Plaintiffs"), initiated the above-captioned adversary proceeding by filing their Complaint to Avoid Preferential Transfers and to Recover Amount of Such Transfers (the "Complaint") against the defendant, Globe Newspaper Company, Inc. d/b/a Boston Globe (the "Defendant").
B. The Debtors and the Defendant have reached a settlement and agreed resolution (the "Settlement") of the subject matter of the Complaint and any and all factual and legal issues raised therein.
C. Pursuant to the Settlement, the Defendant has paid the Debtors the principal amount of $10,000.00.
D. Pursuant to the Settlement and in partial consideration therefor, the Defendant has agreed, as evidenced by the signature of the counsel for Defendant below, and is hereby deemed to voluntarily waive any and claims against the Debtors in these bankruptcy cases for the amount paid by the Defendant pursuant to this agreed order of dismissal (the "Agreed Order of Dismissal") and for any and all prepetition claims asserted or that could be asserted in these bankruptcy cases.
E. The Defendant has acknowledged, as evidenced by the signature of the counsel for Defendant below, and is hereby found to have waived any such claim having adequate opportunity to consult with counsel concerning the Defendant's legal rights and the effect of this waiver.
F. In consideration of the Defendant's payment of the principal amount of $10,000.00, and of the Defendant's knowing and voluntary waiver of any and all claims against the Debtors in these bankruptcy cases for the amount paid by the Defendant in partial consideration for the Agreed Order of Dismissal, the Debtors have agreed to dismiss the Complaint with prejudice, each party to bear its own costs.
NOW, THEREFORE, IT IS HEREBY ORDERED.
1. The Defendant shall not have and is forever barred from asserting any claim against the Debtors for the amount paid by the Defendant hereunder or on account of any claim arising prepetition.
2. The Complaint shall be and hereby is dismissed, with prejudice, each party bearing its own costs.
3. The Court shall retain jurisdiction to hear any matters or disputes arising from or relating to the Agreed Order of Dismissal.
4. Except as otherwise provided herein and upon the payment of the sum of $10,000.00, the Defendant shall be and hereby is released from any and all claims and causes of action related to the plaintiff, which claims or causes of action arose on or before the date of this Agreed Order of Dismissal; provided that the foregoing release shall not apply to any claims or causes of action arising out of any indemnity obligation, negligence or other tortious conduct, or breach of any warranty.