Opinion
Case No. 04-33192 (Jointly Administered).
November 22, 2004.
Nan S. Calloway Clarksville, TN, Counsel for the Plaintiff.
Edward M. King, FROST BROWN TODD LLC, Louisville, KY, and James H.M. Sprayregen, P.C., James W. Kapp III, Ryan S. Nadick, Sven T. Nylen, KIRKLAND ELLIS LLP, Chicago, IL, counsel for the Debtors.
STIPULATION AND AGREED ORDER BY AND BETWEEN THE DEBTORS AND NANCY ECKERT TO MODIFY THE AUTOMATIC STAY AND WITHDRAWING CONFIRMATION OBJECTION
WHEREAS, Nancy Eckert (the "Plaintiff") filed an employment discrimination action on June 11, 2003 alleging claims against the above-captioned debtors and debtors in possession (collectively, the "Debtors") arising from an incident that allegedly occurred on May 19, 2002. The action is currently pending in the United States District Court for the Middle District of Tennessee in Nashville, Tennessee (the "District Court") as Case No. 03-CV-523 (the "Action").
WHEREAS, on May 23, 2004, each of the Debtors filed a voluntary petition (the "Chapter 11 Cases") for relief under chapter 11 of title 11 of the United States Code (as amended, the "Bankruptcy Code").
WHEREAS, the Action was stayed by the filing of the Debtors' Chapter 11 Cases.
WHEREAS, on August 10, 2004, the Debtors filed the First Amended Joint Liquidating Plan of Reorganization of Jillian's Entertainment Holdings, Inc. and Certain of Its Subsidiaries Pursuant to Chapter 11 of the United States Bankruptcy Code (as it may be amended, the "Plan").
WHEREAS, on September 30, 2004, the Plaintiff filed the Objection to Plan (Docket No. 574) (the "Objection").
NOW, THEREFORE, IT IS HEREBY STIPULATED by the undersigned parties, subject to the approval of this Court, that:
1. The foregoing recitals are hereby fully incorporated into and made an express part of this Stipulation and Agreed Order.
2. Upon Court approval of this Stipulation and Agreed Order, the automatic stay provision of section 362 of the Bankruptcy Court shall be modified for the sole and limited purpose of permitting (a) the Action to proceed against the Debtors in the District Court to and including the entry of judgment against the Debtors and/or (b) the Plaintiff to conduct negotiations directly with the Debtors' applicable insurance carriers.
3. The Plaintiff agrees to execute a release in favor of the Debtors and the Debtors' applicable insurance carriers upon the resolution and/or satisfaction of the Action or settlement negotiations from the applicable general liability policy as determined by the District Court or by the mutual agreement of the parties.
4. Neither this Stipulation and Agreed Order nor any terms contained herein shall be offered or received in evidence or in any way referred to in any legal action or administrative proceeding among or between the parties hereto, other than as may be necessary (a) to obtain approval of or to enforce this Stipulation and Agreed Order in the Debtors' Chapter 11 Cases; (b) to seek damages or injunctive relief in connection therewith; or (c) to move that the automatic stay provision of section 362 of the Bankruptcy Code has been modified to allow prosecution of the Action to proceed in the District Court.
5. The Objection is hereby withdrawn.
6. Nothing herein is intended or shall be construed to waive any defenses, setoffs, objections or counterclaims that the Debtors or the Debtors' applicable insurance carriers may have with respect to the Action.
7. This Court shall retain jurisdiction to hear and determine all matters related to the entry of this Stipulation and Agreed Order. The Plaintiff consents to the jurisdiction of this Court to resolve any disputes or controversies between the parties hereto arising from or related to this Stipulation and Agreed Order.
8. This Stipulation and Agreed Order is subject to the approval of this Court, and the terms and provisions of the agreement contained herein shall be void and of no further force and effect if such approval is not granted.
9. Each of the undersigned counsel represents that he or she is authorized to execute this Stipulation and Agreed Order on behalf of his or her respective client.
10. This Stipulation and Agreed Order may be executed in multiple facsimile or original counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.
11. The modification of the automatic stay under section 362 of the Bankruptcy Code, as set forth in this Stipulation and Agreed Order, is limited to the Plaintiff and nothing herein is intended or shall be construed to modify, terminate or in any way affect the automatic stay provision of section 362 of the Bankruptcy Code as it pertains to any other party involved in the Action. The automatic stay provision of section 362 of the Bankruptcy Code as it pertains to such other parties shall remain in full force and effect.