Opinion
Case No. 399-02649 Jointly Administered, Adv. Proc. No. 301-0951A.
April 26, 2004
Wally W. Dietz, Esq., Paul G. Jennings, Esq., Bass, Berry Sims PLC, Nashville, TN, and Charles F. Smith, Esq., Van C. Durrer, II, Esq., Skadden, Arps, Slate, Meagher Flom (Illinois), Chicago, IL, Attorneys for Debtors and Debtors in Possession.
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 to Avoid Preferential Transfers and to Recover Amount of Such Transfers (the "Complaint") against the defendant, Consolidated Freightways Corporation d/b/a CF Motor Freight (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 and in 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 that have been or could be filed against the Debtors in these bankruptcy cases, whether secured, unsecured, prepetition, postpetition, administrative, priority, or otherwise against the Debtors or their estates.
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. In consideration 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 or causes of action against the Defendants and/or the Defendants' bankruptcy estates.
NOW, THEREFORE, IT IS HEREBY ORDERED:
1. The Defendant shall not have and is forever barred from asserting any claim against the Debtors, 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 Defendants or their bankruptcy estates.
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.