Opinion
Case No. 399-02649, Jointly Administered, Adv.Proc. No. 301-0292A, (Continuing Vendors).
June 10, 2003.
Paul G. Jennings, Esq., Beth A. Dunning, Esq., Bass, Berry Sims PLC, Nashville, TN and Charles F. Smith, Esq., Frances P. Kao, Esq., Skadden, Arps, Slate, Meagher Flom (Illinois) Chicago, IL, Attorneys for Debtors and Debtors in Possession.
Donna P. Touzalin, Freeborn Peters, Chicago, IL, Attorneys for Defendant Wichita Eagle Beacon Publishing Company, Inc. d/b/a The Wichita Eagle.
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, Wichita Eagle Beacon Publishing Company, Inc. d/b/a The Wichita Eagle ("Wichita Eagle").
B. The Debtors and Wichita Eagle have executed a Settlement Agreement and Stipulation (the "Settlement") providing for the resolution of the subject matter of the Complaint and any and all factual and legal issues raised therein.
C. Pursuant to the Settlement, Wichita Eagle has agreed to withdraw its proof of claim for $15,460.03.
D. Pursuant to the Settlement and in partial consideration therefor, Wichita Eagle has agreed, as evidenced by the signature of the attorney for Wichita Eagle below, and is hereby deemed to voluntarily waive any and all claims against the Debtors in these bankruptcy cases for the consideration provided by Wichita Eagle pursuant to this agreed order of dismissal (the "Agreed Order of Dismissal").
E. Wichita Eagle has acknowledged, as evidenced by its attorney's signature below, and is hereby found to have waived any such claim having adequate opportunity to consult with counsel concerning Wichita Eagle legal rights and the effect of this waiver.
F. In consideration of Wichita Eagle's agreement to withdraw its proof of claim, and of Wichita Eagle's knowing and voluntary waiver of any and all claims against the Debtors in these bankruptcy cases for the withdrawal of its proof of claim which withdrawal was in partial consideration for the Agreed Order of Dismissal, the Debtors have agreed to dismiss the Complaint with prejudice.
NOW, THEREFORE, IT IS HEREBY ORDERED:
1. Wichita Eagle shall not have and is forever barred from asserting any claim against the Debtors for the amount of its proof of claim 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.