Opinion
Case No. 399-02649, Jointly Administered, Adv. Proc. No. 301-0577A
January 13, 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., Skadden, Arps, Slate, Meagher Flom (Illinois), Chicago, IL, for Debtors and Debtors in Possession
Patrick J. Nash, Jr., Esq., Skadden, Arps, Slate, Meagher Flom (Illinois), Chicago, IL, for Debtors and Debtors in Possession
Robert J. Mendes, Robin Bicket White, Mendes Gonzales, PLLC, Nashville, TN, for Gregg Ruth Co.
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, Gregg Ruth Co.
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 $ 10,306.52 for debit balances existing as of November 3, 2003 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 $10,306.52 for debit balances existing as of November 3, 2003, 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.
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.
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 $10,306.52, 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.