Opinion
Case No. 399-02649, Jointly Administered, Adv. Proc. No. 301-0621A (Debit Balance Vendors)
January 23, 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
William L. Norton III, Boult, Cummings, Conners Berry, PLC, Nashville, TN, for the Defendant
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, Maxell Corp. of America (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 principal amount of $25,000.00 in escrow, to be delivered to the Debtors upon entry of this Agreed Order.
D. Pursuant to the Settlement and in partial consideration therefor, 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") and for any and all claims, whether secured, unsecured, prepetition, postpetition, administrative, priority, or otherwise against the Debtors or their estates. The Defendant has further agreed to withdraw its prepetition claim (Claim No. 1613) in the amount of $144,009.10, filed against the Debtors in these bankruptcy cases.
E. 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.
F. In consideration of the Defendant's payment of the principal amount of $25,000.00, and of the Defendant's knowing and voluntary waiver of any and all claims against the Debtors in these bankruptcy cases, the Debtors have agreed to dismiss the Complaint with prejudice, each party to bear its own costs. The Debtors have further agreed to waive any and all claims and causes of action against the Defendant in these bankruptcy cases, including but not limited to Adversary Proceeding No. 301-0753A, also filed against the Defendants in these bankruptcy cases.
NOW, THEREFORE, IT IS HEREBY ORDERED:
1. 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.
2. The Debtors shall not have and are forever barred from asserting any claim or cause of action against the Defendant in these bankruptcy cases.
3. The Complaint shall be and hereby is dismissed, with prejudice, each party bearing its own costs.
4. The Court shall retain jurisdiction to hear any matters or disputes arising from or relating to the Agreed Order of Dismissal.