Opinion
Case No. 399-02649 Jointly Administered, Adv.Proc. No 301-0596.
April 8, 2004
Paul G. Jennings, Esq., Phillip G. Young, Esq., Bass, Berry Sims PLC, Nashville, TN,
Patrick J. Nash, Jr., Esq., Skadden, Arps, Slate, Meagher Flom (Illinois), Chicago, IL, Attorneys for Debtors and Debtors in Possession.
Bryan Freedman, Esq., Freedman Taitelman, LLP, Los Angeles, CA, Attorneys for Kenwood USA Corporation.
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 for Damages and Related Relief (the "Complaint") against the defendant, Kenwood USA Corporation.
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 $17,500.00 for debit balances existing as of January 27, 2004 and further agreed to waive any and all claims that it, and its successors and assigns, does or may have against the Debtors through the date hereof.
D. The Defendant has acknowledged, as evidenced by the signatures below, and is hereby found to have waived any such claims having adequate opportunity to consult with counsel concerning the Defendant's legal rights and the effect of this waiver.
E. Defendant represents, acknowledges and agrees that, other than the instant adversary proceeding, it has no knowledge of any asserted or unasserted claims or causes of action that the Debtors may have or assert against the Defendant and that it would not have entered into this Agreed Order of Dismissal unless all of Plaintiff's claims were fully settled and finally resolved.
F. In consideration of the Defendant's payment of the principal amount of $17,500.00 for debit balances existing as of January, 27, 2004, and of the Defendant's knowing and voluntary waiver of any and all claims against the Debtors through the date hereof, the Debtors and their successors and assigns have agreed to dismiss the Complaint with prejudice, each party to bear its own costs.
G. Nothing in this order shall affect the claim (Proof of Claim #595) filed by the Defendant in the amount of $447,570.50 which has been previously assigned by the Defendant to American Credit Indemnity Company, or any amendment or supplement to the said claim.
NOW, THEREFORE, IT IS HEREBY ORDERED:
1. The Defendant and its successors and assigns shall not have and are forever barred from asserting any claim against the Debtors the Defendant has or may have as of the date hereof. This order shall not affect the claim (Proof of Claim #595) previously assigned by the Defendant to American Credit Indemnity Company or any amendment or supplement to the said claim.
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 $17,500.00, 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.