Opinion
Case No. 399-02649, Jointly Administered, Adv. Proc. No. 301-0819A
February 2, 2004
Wally W. Dietz, Esq., Bass, Berry Sims PLC, Nashville, TN, for Debtors and Debtors in Possession
Paul G. Jennings, Esq., Bass, Berry Sims PLC, Nashville, TN, for Debtors and Debtors in Possession
Beth A. Dunning, Esq., Bass, Berry Sims PLC, Nashville, TN, for Debtors and Debtors in Possession
Charles F. Smith, Esq., Van C. Durrer, II, Esq., Chicago, IL, for Debtors and Debtors in Possession
Reid D. Leitner, Esq., Nashville, TN, for the Defendant
AGREED ORDER OF SETTLEMENT AND DISMISSAL
It appearing to the Court, as evidenced by the signatures of counsel below, that the parties have reached a compromise to settle all claims and/or causes of action which were raised or which could have been raised in these bankruptcy cases against the Defendant, Bernard Hodes Advertising, Inc., 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, Bernard Hodes Advertising, Inc. (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 $45,000.00.
D. This settlement shall not affect or reduce the Defendant's prepetition claim (Claim No. 3211) in the amount of $ 18,451.17, filed against the Debtors in these bankruptcy cases.
E. Pursuant to the Settlement and in partial consideration therefore, the Defendant has agreed, as evidenced by the signature of the Defendant below, and is hereby deemed to voluntarily waive any and all 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").
F. The Defendant has acknowledged, as evidenced by the signatures 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.
G. In consideration of the Defendant's payment of the principal amount of $45,000.00, 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 pursuant to the Agreed Order of Dismissal, the Debtors hereby agree, as evidenced by the signature of their counsel below, to dismiss with prejudice all claims, demands, and/or causes of action of any kind which were brought or which could have been brought in this proceeding by the Debtors, each party to bear its own costs. The Debtors have further agreed to waive and release any and all claims, demands, and/or causes of action of any kind against the Defendant in these bankruptcy cases.
NOW, THEREFORE, IT IS HEREBY ORDERED:
1. All claims, demands, and/or causes of action of any kind which were brought or which could have been brought in this proceeding by the Debtors, against the Defendant, Bernard Hodes Advertising, Inc., be and hereby are dismissed with prejudice;
2. 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 other claim, whether secured, unsecured, prepetition, postpetition, administrative, priority, or otherwise against the Debtors or their estates; provided, however, that this Agreed Order of Settlement and Dismissal shall not affect or reduce the Defendant's prepetition claim (Claim No. 3211) in the amount of $ 18,451.17, filed against the Debtors in these bankruptcy cases.
3. The Debtors shall not have and are forever barred from asserting in these bankruptcy cases or otherwise any claim or cause of action regarding the payments which are the subject of this adversary proceeding against the Defendant, as well as any subsidiary and/or affiliate of the Defendant, including but limited to Bernard Hodes Advertising Group, Inc.
4. The Complaint shall be and hereby is dismissed, with prejudice, each party bearing its own costs.
5. The Court shall retain jurisdiction to hear any matters or disputes arising from or relating to the Agreed Order of Dismissal.